CITATION: Ottawa Police Services v. Diafwila, 2015 ONSC 931

DIVISIONAL COURT FILE NO.: DC-14-2021

DATE: 2015/03/10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aitken, Lederer and Ramsay JJ.

BETWEEN:

Ottawa Police Services

Applicant

– and –

Constable Emmanuel Diafwila

Respondent

Robert E. Houston, Q.C. and Jonathan Ferris for the Applicant

Paul Champ for the Respondent

HEARD: January 29, 2015 at Ottawa

REASONS FOR DECISION

RAMSAY J.

[1] This is an application by the Ottawa Police Services (“the Service”) for judicial review of the decision of the Ontario Civilian Police Commission, which allowed the Respondent’s appeal under s.87 of the Police Services Act from the decision of a hearing officer in a hearing under s.76 (9) of the Act. The hearing officer found the Respondent guilty of the disciplinary offence of unsatisfactory work performance.

[2] This court is not reviewing the decision of the hearing officer. It is reviewing the decision of the Police Commission. The standard of review is reasonableness. The Commission in its review of the hearing officer’s decision was required to apply the standard of reasonableness to questions of fact and correctness to questions of law: OPP v. Purbrick, 2013 ONSC 2276 (Div. Ct).

[3] The Respondent was hired by the Ottawa Police Services as a fourth class constable in 2006. He underwent annual performance reviews in 2007 and 2008. After the 2008 review, the Service put him on a performance improvement plan in early 2009. When this plan ended, he was taken off the road from June 2009 until October 2010. In the intervening time he was assigned to administrative duties on the information desk. Between then and October 2010, he was given driving and other courses to prepare him to return to road duty. Finally, he was told in writing in November 2010 that the performance improvement plan was over and that he would return to the road, coached by Constables Varga and Karwaski. In a letter dated November 19, 2010, the Respondent was told that the incidents documented while on the performance improvement plan would inform the next steps, but the PIP was no longer in effect. The Respondent would commence an individualized learning plan. According to the letter, the training under that plan had begun in June 2010. He would be assigned to a new platoon. He was told that he would be given 250 hours of coaching in F Platoon, dating from October 27, 2010, working with a coach officer who was to make entries into the daily tracking log. The Service wrote that it expected that at the end of the 250 hours he would meet the requirements of his role.

[4] Constables Varga and Karwaski undertook this coaching and made extensive use of the tracking logs. Constable Diafwila expressed satisfaction with the use of the logs in this context.

[5] Constable Diafwila was coached by Constable Varga for 200 hours. Constable Varga testified that he would identify issues as he went along, observing the Respondent’s performance. He called it training “on the fly.” This is emphasised in argument by the Respondent’s counsel, who characterises it as something ill thought out. That is not necessarily so. After all the formal training all that was left to do was to observe the practical application of the training on the job, and to assess the Respondent’s performance as things came up.

[6] Constable Varga testified that the Respondent was performing at a lower level than his experience would indicate. The Respondent had sufficient knowledge, but he did not apply it effectively. Some examples:

• The Respondent used leading questions when taking a statement from a witness about identification of a suspect.
• He hesitated to engage a drunk male with sufficient authority.
• He failed to identify other persons present at an incident, which had implications for officer safety and proof of an offence.
• He stood too close to an agitated male, failing to preserve space to react to an assault.
• He did not look at the map often enough to be in a position to advise the dispatcher if he got into trouble.
• He overlooked important witnesses on a neighbour dispute call and had to go back to interview them.
• He interrupted witnesses while taking a statement instead of listening to their story.
• He made wrong turns while driving because he did not look at the map.
• He placed a resisting female prisoner on her face in the back seat of the cruiser, which creates a risk of suffocation.
• After a call, he kept writing a report in the car instead of clearing from the call and backing up another officer who had made a traffic stop at 3 am.
• He was unable to work the feature of handcuffs that enables them to lock without getting tighter.
• He failed to stop at stop signs when responding to a call.
• He failed to ask witnesses or complainants for sufficient background information.

[7] After 200 hours of coaching by Constable Varga, the Service gave up. They called the Respondent in for a meeting with the Inspector on December 19, 2010. The Respondent was asked whether he thought the process had been fair. He thought that it had been, but he also thought that he had performed adequately. The inspector told him that there were several issues and that he would not be going on independent patrol. Unsatisfactory work performance was reported to the chief. An investigation led to the complaint that is the subject matter of this application.

[8] At the hearing, the Service relied only on events that took place in 2009 and 2010. The Respondent testified in detail about the various incidents that had been mentioned by the Service’s witnesses, offering comments and explanations from his point of view. As to the final 200 hours of coaching, he summarized his involvement with Constables Varga and Karwaski as follows:

Q. The call review forms, Manny, with all your shifts with Constable Varga and Karwaski, did you – would you see those call review forms as you went over those 25 shifts?

A. Yes. Yes, I did and, if you see, at the end I’m signing.

Q. Right. And based on those review forms did you have any opinion about how you were performing generally?

A. Yes. Sometimes I would challenge some of the - the evaluation in the car and, again I had no spot to write down, eh. So we would have conversation, very, very constructive, I think, conversation in the cruiser. One more time, I just want to reiterate that here my understanding was that I was just – I just had to be up to speed. So I had – it wasn’t’ –like, I didn’t believe that either Karwaski or John [Varga] were there to sign me as a rookie.

Q. And on your driving generally, you were criticised several times for your driving, driving so slow and so forth. Have you ever had any motor vehicle accidents as a police officer?

A. No, never.

Q. And what would you say about your style of driving as compared to some other officers you’ve driven with?

A. I drove with several cops and – like within the force and, you know, since I started I was trained by several officers, and I never seen an officer who really like the style of another officer. We all have different style and my style – is my style dangerous? I don’t believe so. It’s an issue that was raised and I think you can see it from the paperwork later on even. From the start it was even there in my PIP. So, yes, I may have a different style for some people, but again, I passed the – the initial training at OPC and I did the training as well as PDC [Professional Development Centre] with no problem, and I think I met the standard.

Q. How did you think you had done in the 25 shifts?

A. I thought I – I was up to speed.

[9] The hearing officer found the Respondent guilty. He relied heavily on the evidence of Constable Varga, with whom he was impressed. He found the Respondent to be a remarkable young man who was unsuited to police work and whose performance represented a safety issue to himself and others.

[10] In its reasons the Commission acknowledged that the Service “produced an extensive amount of evidence to establish on clear and convincing evidence that the [Respondent’s] work performance was unsatisfactory.” It also said,

The panel is under no illusion that the [Respondent], in his conduct of many of the basic policing duties, did not achieve the performance standards deemed acceptable to the Service to carry out independent patrol duties.

[11] However, it reversed the hearing officer and ordered the reinstatement of the Respondent for three reasons:

a. The Service did not follow established procedure, which, under O.Reg. 268/10 is a condition precedent to bringing a charge of unsatisfactory work performance. The reasonable compliance with procedure found by the hearing officer was not sufficient.

b. The hearing officer did not deal with the evidence of the Respondent or his three witnesses in his reasons, which is a denial of natural justice.

c. The hearing officer misapprehended and ignored material evidence.

Failure to fulfil statutory conditions precedent to prosecution

[12] Ontario Regulation 268/10 provides:

29. (1) Every chief of police shall establish policies for the assessment of police officers’ work performance. O. Reg. 268/10, s. 29 (1).

(2) The chief of police shall make the policies available to the police officers. O. Reg. 268/10, s. 29 (2).

(3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance,

(a) the police officer’s work performance shall have been assessed in accordance with the established procedures;

(b) the chief of police shall advise the police officer of how he or she may improve his or her work performance;

(c) the chief of police shall accommodate the police officer’s needs in accordance with the Human Rights Code if the police officer has a disability, within the meaning of the Human Rights Code, that requires accommodation;

(d) the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer’s work performance; and

(e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. O. Reg. 268/10, s. 29 (3).

[13] The Respondent did not have a disability within the meaning of paragraph 29(3) (c) of the Regulation. The procedural question that faced the hearing officer and the Commission was whether the Service followed established procedure in assessing the Respondent’s performance and, if so, whether it complied with paragraphs 29(3)( b), (d) and (e) of the Regulation. This was a question of mixed fact and law, on which the hearing officer was owed deference by the Commission.

[14] The Commission said:

The record of the disciplinary hearing confirms that [the Service] undertook many significant efforts to assist Const. Diafwila to achieve success. The Service went beyond the normal assistance given to officers, by providing additional coach training hours, language training and realistic policing scenario training through the Professional Development Centre.

[15] According to the Commission, this was not enough to comply with the Regulation. In my view, combined with the performance appraisal of 2008, it was enough to comply with the Regulation.

[16] The first requirement of the Regulation, in s.29 (3) (a), is that the officer’s performance “shall have been” assessed according to established procedure. For the Ottawa Police, the procedure was established by Policy 3.19.

[17] Policy 3.19 deals with performance assessment for professional development purposes. It meets the requirements of subs. (1) and (2) of the Regulation, which require the establishment of such a procedure, and it is the established procedure to which paragraph 29(3) (a) refers. This policy required annual performance reviews involving an initial interview, tracking logs and a final interview, followed by a written summary that was given to the member. Annual reviews were completed in 2007 and 2008. Much was made of the fact that the tracking logs were not frequently used. The performance review tracking log is defined by Policy 3.19 as “A document to record daily performance.” I take that to mean a log into which an officer’s day to day performance can be entered. It cannot reasonably be taken to require that an entry be made every day for every officer in the Service.

[18] The 2008 performance review was provided to the Respondent. The Respondent argues, and the Commission noted, that the Respondent did not get an unsatisfactory rating. This, however, is misleading. The boxes for each category of performance were checked “meets expectations” or “needs improvement”. The boxes marked “unsatisfactory” were not checked. But the comments set out in detail serious performance issues. For example:

• Cst. Diafwila’s daily performance is borderline and minimally meeting expectations and he continues to improve but at times he also appears to take a step backwards.
• When Cst. Diafwila was transferred to [Rural East Patrol] officers expressed concerns about his skills and abilities in relation to officer safety. … Upon his transfer to the platoon in June 2008, all officers of the platoon were given the opportunity to express their concerns directly with Cst. Diafwila. It was expected that with guidance, experience and coaching, Cst. Diafwila would self-improve in this area. Since that time, officer(s) have stated that their trust in Cst. Diafwila’s dedication to officer safety has not improved.
• … on a few occasions … Cst. Diafwila fails to respond when called on the police radio by other officers and Comm Centre personnel. This type of behaviour is more prevalent with Cst. Diafwila than it is with other officers … He needs to be more cognizant of the volume of his radio and to ensure his portable is turned on when out of his cruiser.

[19] The Commission held that the Service failed to follow Policy 3.19 by

a. Not completing performance reviews for 2009 and 2010 including initial interview, review of tracking log entries and a final, formal performance review interview;

b. Not ensuring that the Respondent’s supervisors made regular consistent daily entries into the Respondent’s tracking log;

c. Not providing performance assessments to the Respondent in writing;

d. Not giving the Respondent a chance to comment on the notations, reports and memos of coach officers and supervisors at the relevant times of the occurrences and

e. Relying upon memos, notes, reports and verbal comments by coach officers, other officers and supervisors without ensuring that copies and information were made available to the Respondent.

[20] Policy 3.19 did not require that entries be made in the tracking log every day. Nor did it require that all memos, notes, reports and verbal comments by coach officers, other officers and supervisors be made available to the Respondent contemporaneously. If the Regulation is interpreted correctly, the evidence leads inevitably to the conclusion that at the end of 2008, the Respondent’s performance was assessed in accordance with established procedures.

[21] As the Commission said, the Regulation envisions a “two-step process”. The assessment according to established procedures is the first step. Meeting the requirements of paragraphs (b) to (e) of subs. 29(3) of the Regulation is the second step. Those paragraphs do not require repetition of the first step. During the second step, they require notice, accommodation, remedial help and the opportunity to improve.

[22] The Regulation does not specify a maximum time limit for the second step. In the case at bar the second step took two years because, as the Commission recognized, the Service went to extraordinary lengths to give the Respondent the chance to improve to the minimum acceptable standard. Unfortunately, he never did.

[23] The Service had a policy, Policy 3.14, which established procedures for dealing with unsatisfactory work performance. Policy 3.14 requires the Service, in consultation with the member, to institute a plan that addresses the matters required by the Regulation.

[24] Under Policy 3.14, the Service implemented a performance improvement plan in January 2009, which was discussed with the Respondent and then committed to writing and presented to him in March 2009. He agreed with the plan. The hearing officer’s conclusion, that he was consulted, was reasonable. The delay between January and March is not decisive. The point should not have been crucial in any event because while the policy requires consultation, the Regulation does not. Neither does the Regulation require compliance with any particular policy or procedure at this stage. What it requires is notice, accommodation, remedial education and the opportunity to improve. It is understandable that the Regulation would permit an ad hoc process. In order to be fair, performance must be appraised using a consistent process. But a plan to accomplish notice, accommodation, remedial assistance and opportunity to improve needs to be tailored to the individual.

[25] The Commission found that the Service failed to follow Policy 3.14 by

a. Not completing performance appraisals for 2009 and 2010, in contravention of s.29 (3) (a) of the Regulation, which is adopted by Policy 3.14;

b. Not requiring consultation with the Respondent in establishing and implementing a performance improvement plan; and

c. Not ensuring that there were no barriers impeding the Respondent’s improvement by not resolving the Respondent’s complaint against Constable Hung.

[26] Again, the Regulation did not require performance appraisals in 2009. It required that they “shall have been done” before making a complaint.

[27] Again, the Respondent was consulted on the performance improvement plan but the Regulation does not require consultation in any event.

[28] As to the third point, the evidence about Constable Hung’s involvement must be reviewed.

[29] Constable Hung was the first officer assigned as coach in the performance improvement plan of early 2009. He was confrontational and his language was rough, although he was not above commending the Respondent when he thought fit to do so. He did not escape criticism from the hearing officer, but the hearing officer found that there was no harassment “by any yardstick.” The Respondent complained about Constable Hung. When the Respondent declined to meet Constable Hung with a view to reconciliation, a new coaching officer was assigned. The complaint was dealt with in a way that no barrier remained to the Respondent’s improvement. Whether the complaint was adequately handled as a matter of harassment policy is not the point.

[30] In contrast with the Commission, the hearing officer understood the requirements of the Regulation. He set out the contents of the Regulation in full. He defined the question as follows:

A fundamental question that I need to address is whether or not the process that was undertaken by the Ottawa Police Service was fair, consistent and in pursuant (sic) to the Police Services Act.

[31] The hearing officer concluded:

In short it is my view that the process undertaken by the Ottawa Police Service – although far from perfect – provided Constable Diafwila with an abundance of opportunities to

• Know the nature of the performance improvements required
• Obtain the assistance and advice of experienced officers and trainers
• Clarify with some specificity the nature of the improvement required,
• Demonstrate his ability to perform the required tasks of an independent patrol officer.

[32] That is essentially what paragraphs 29(3) (b), (d) and (e) of the Regulation require.

[33] The Commission’s reversal of the hearing officer was the product of its unreasonable construction of the Regulation, which resulted in its failure to give due deference to the hearing officer’s findings of fact. The Commission’s decision was intelligible and transparent but it was not justifiable. It imposed a number of confusing and impossibly demanding preconditions that the law simply did not require. The result was perverse.

Ignoring the evidence called by the Respondent

[34] The evidence of the three witnesses called by the Respondent apart from himself cannot have affected the result. They attested to the Respondent’s good character, which was not in doubt, or as to instances in which he had performed satisfactorily, without problem or even commendably. It was never contended that the Respondent had problems every time he went out on his own. That the hearing officer found it unnecessary to comment on their evidence is not demonstrative of a flaw in his reasoning or his decision.

[35] In the analysis portion of his reasons, the hearing officer mentioned the Respondent’s evidence only in connection with the question of Constable Hung. When he was summarizing the arguments of counsel, the hearing officer mentioned the Respondent’s evidence several times. He did not at any point say that he disbelieved the Respondent.

[36] The principles in the context of a police discipline case are set out by the Divisional Court in McCormick v. Greater Sudbury Police Service, 2010 ONSC 270:

Appellate review of reasons for judgment mandates a functional and contextual approach having regard to the totality of the evidence and the critical issues in the case. In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 35, the court stated:

The forum for first-instance decision-making"where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts": R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 15.

In summary, the cases confirm:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard, at paras. 46 and 50; Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connection between the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdict is unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to the evidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial.

This summary is not exhaustive, and courts of appeal might wish to refer themselves to para. 55 of Sheppard for a more comprehensive list of the key principles.

[37] The essence of the Respondent’s evidence on the substantive issue was that he thought he was up to speed. He disagreed with the other officer’s interpretations of things that were more or less agreed to have happened.

[38] It is patent from the hearing officer’s reasons that he found Constable Varga to be an impressive witness with no axe to grind, and that based on Constable Varga’s observations, the hearing officer thought that the Respondent did not meet the standard, a conclusion that the Commission itself drew. It is also obvious that the hearing officer did not ignore the Respondent’s evidence. He mentioned it several times. But he must not have agreed with the Respondent’s opinion that he was up to speed. That much is evident to anyone who reads the reasons in the context of the evidence at the hearing and the question in issue. It was not necessary to find that the Respondent was not telling the truth and there is no reason to think that the hearing officer thought so.

[39] There was no denial of natural justice. The Commission should have distinguished McCormick. McCormick was a misconduct case that involved a slap and a kick which Staff Sergeant McCormick either administered or did not administer. Two witnesses said that he did and McCormick said that he did not. The only reason given for not believing McCormick was, “For me to accept Sergeant McCormick's version of these events, I would have to believe that Constable Hart is either lying or mistaken and that Constable Train is either lying or mistaken. I believe neither of these.” No reason was given as to why McCormick must be lying or mistaken. This case bears no resemblance to the case at bar.

Ignoring other evidence

[40] The Commission faulted the hearing officer for failing to mention the fact that the Respondent was promoted to third, and then second class constable, that he had not had an unsatisfactory performance review and that he was a valued member of the Service. Failure to mention a feature of the evidence does not equate to ignoring the evidence.

[41] First, the promotions took place in 2007 and 2008, before the discipline process was instituted. The Service was entitled to reconsider its view of the performance of the Respondent, as it apparently did after the 2008 performance assessment. In 2009 the Respondent was denied promotion to first class constable. The previous promotions were not particularly probative. Neither was the fact that the performance reviews were, in the strictest sense, “satisfactory” given the serious performance issues that they identified. Finally, it was never denied that the Respondent had talents and qualities that made him a valued member of the Service. The question was whether his performance met the minimum acceptable standard for a police officer on independent patrol. The items of evidence that the hearing officer did not mention were not crucial to the outcome. After all, the Commission considered these items and it was “under no illusion that the [Respondent], in his conduct of many of the basic policing duties, did not achieve the performance standards deemed acceptable to the Service to carry out independent patrol duties.”

Misapprehending evidence

[42] The Commission held that the hearing officer misapprehended important evidence:

The review of the record and Reasons disclosed errors in the factual findings. At page 14 of the decision the hearing officer referred to the [Respondent] being offered an additional 500 hours of coach/mentoring. He stated thereafter: “even after this unusually long and concentrated program, Const. Diafwila was still not deemed to be qualified for independent patrol.” This implies a perception that the [Respondent] was never ready nor ever going to be ready to achieve that level. The evidence on the record regarding coach/mentor training does not support that finding. The [Respondent] was in fact approved for independent patrol after a Field Training Evaluation in 2007 and was placed on such patrol for two years.

[43] The Respondent was given the usual 500 hours of coaching in 2006, and then an additional 100 hours before he began independent patrol in 2007. It was after the performance review of 2008 that the additional 500 hours was given, and after that he was not put back on independent patrol. When the hearing officer said that the Respondent was not considered ready for independent patrol after the 500 hours, he must have been referring to the decision of 2009 to take him off the road. The hearing officer did not misapprehend the evidence. The Commission misunderstood the hearing officer’s reasons.

Conclusion

[44] There was no reasonable basis for a finding of denial of natural justice or misapprehension of evidence. The Commission's decision on these points is intertwined with, and inspired by, its unreasonable construction of the Regulation. A correct interpretation of the Regulation combined with the hearing officer’s findings of fact leaves no room to doubt the reasonableness of his decision. I would grant the application, set aside the Commission’s decision and remit the matter to the Commission with a direction to hear the appeal from the action taken under s.85 of the Act.

Ramsay J.

LEDERER J.

[45] I have reviewed the reasons as drafted by Mr. Justice Ramsay and those prepared by Madam Justice Aitken. I agree with the decision of Mr. Justice Ramsay and his reasons.

[46] There is a practical problem that imbues this case. The applicant was given many chances to learn, to improve and demonstrate the abilities necessary to fully and appropriately function as a police officer with the Ottawa Police Service. Despite these opportunities, he failed to satisfy those responsible that he was capable of doing the job. The question posed is whether, in these circumstances, it can reasonably be said that, despite the efforts to assist him, he was denied the protections the law offers.

[47] I agree with Justice Ramsay. The process complied with the requirements of the Police Services Act, Ontario Regulation 268/10 and, to the extent necessary, Policies 3.19 and 3.14 of the Ottawa Police Service. The applicant’s performance was assessed for the year 2008. So far as I am aware, there is no suggestion that that assessment did not follow the “established procedures” (see: O. Reg. 268/10, s. 29(3) (a)). These were the procedures set by Policy 3.19, which dealt with performance assessment. This was the beginning of a continuing process wherein the applicant was taken off the road, was given additional training and mentoring, was returned to road service but, in the end, was not able to satisfy his superiors that he would be able to carry out the duties of a police officer. This was done in furtherance of Policy 3.14 which dealt with unsatisfactory work performance. To me, these attempts to assist the applicant, when examined, demonstrate that the applicant was advised as to how he could improve his performance, was given remedial assistance, counselling (mentoring by other officers) and additional training. He was given time to improve his performance. All of this shows compliance with the Regulation (see: O. Reg. 268/10, s. 29(3) (b), (d) and (e)). As Mr. Justice Ramsay suggests, unlike Policy 3.19 (the established procedures that must be followed in undertaking an assessment) there is nothing in the Regulation that required a strict compliance with Policy 3.14.

[48] As a result of the comments made and the concerns raised, the Chief of Police made a complaint (see: Police Services Act) and a hearing was conducted (s. 76(1) and s. 76(9)). The Hearing Officer confirmed the applicant should be dismissed. The applicant appealed to the Ontario Civilian Police Commission. The Commission set aside the finding of the Hearing Officer, essentially on the basis that the pre-conditions it found the legislation and the Regulation required be satisfied before an officer could be terminated, had not been met.

[49] To this point, I have not said anything that differs from the reasons of Mr. Justice Ramsay. I write this concurrence because I wish to be clear in how I understand the standard of review that is applicable and how it should be applied.

[50] Both my colleagues observe that the standard of review that applies to the Commission’s consideration of the decision of the hearing officer was reasonableness in respect of questions of fact and correctness for questions of law, but that the standard of review that applies to the Court’s review of the decision of the Commission is reasonableness even for questions of law, at least those related to interpretations of its home statute. In making this point, Mr. Justice Ramsay refers to Ontario Provincial Police v. Purbrick, 2013 ONSC 2276. In that case, in furtherance of this idea, the following is said:

The role of the Divisional Court in reviewing decisions of the Commission is considerably more restricted than the role of the Commission in reviewing decisions of a Hearing Officer.

(Ontario Provincial Police v. Purbrick, supra, at para. 14)

[51] I confess this strikes me as peculiar. In substance, it means that, in considering issues of law, the Commission is bound to be sure that a hearing officer is correct but, in doing so, need only be reasonable. Whatever reasonableness may mean in these circumstances, it must be more limited than the words from Dunsmuir v. New Brunswick, [2008] S.C.C. 9 most frequently relied on as explaining the boundaries of what is reasonable:

[Reasonableness].... is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

(Dunsmuir v. New Brunswick, supra, at para. 47)

[52] If the Court need only determine whether the findings of the Commission fall within the range of possible or acceptable outcomes, there is no impetus for the Commission to look to determine if the Hearing Officer was correct. It need only find that his or her answer is one of the acceptable alternatives. If it is, the Commission will be upheld by this court. In such a case, the requirement that the Hearing Officer be held to the standard of correctness would be meaningless. An answer to this dilemma is in the initial explanation of reasonableness found in the same paragraph:

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

(Dunsmuir v. New Brunswick, supra, at para. 47)

[53] Frankly, to me the better answer would be to recognize that the Police Services Act and the regulations promulgated under it also represent the home statute of the Chief of Police and the Hearing Officer that was his delegate. This would mean that the proper standard of review for the Commission, in considering appeals such as this one, would be reasonableness and not correctness. It would reinforce what I believe was the intended purpose of the Commission: civilian oversight of police services (see: Police Services Act, s. 22(1)). The section of the Police Services Act that prescribe the appeals taken from a hearing by the Chief of Police to the Commission does not rule this out (see: Police Services Act, s. 87) but the prevailing case law says otherwise.

[54] The understanding of the relationship of the Commission to the hearing of the Chief of Police is important. It underscores and confirms that this is an appeal. It is not a hearing de novo. The Commission does not “begin again” as if there had been no hearing held by the Chief of Police or his or her delegate. The Commission has to pay attention and this court cannot forget, ignore or fail to consider what the Hearing Officer found and concluded. The Commission cannot simply replace the Hearing Officer’s conclusions with something it prefers. In Ontario Provincial Police v. Purbrick, supra, the court referred to observations that had been made by the Commission:

[O]ur role on an appeal is not to second-guess the decision of the Hearing Officer, but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence, and are articulated in a logical manner….

In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant sentencing factors have been ignored….

An appeal to the Commission is an appeal on the record. Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings, unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence…

(Ontario Provincial Police v. Purbrick, supra, at para. 16. I note, as has Madam Justice Aitken, that these words are repeated, with some inconsequential changes, by the Commission in its Decision in this case at paras. 157-159. The Commission refers to some additional citations that I do not repeat here.)

[55] In this case, what was the “error in principle” on which the Commission relied in overturning the decision of the Hearing Officer? To my mind, there was none. The expressed concern was that the pre-conditions required to be met before the applicant could be terminated were not followed. To come to this conclusion, the Commission had to set aside any interpretation of the requirements of the Regulation that accorded with the findings of the Hearing Officer and replace it with its own.

[56] The interpretation of the Commission is not reasonable. It is not, as Mr. Justice Ramsay noted, “justifiable” (see paragraph 33 of his reasons). It would allow for the triumph of a too-stringent reading of the requirements of the Regulation over the practical realities confronting its interpretation and implementation. There is no error in principle in saying that Policy 3.14 is not to be included in “established procedures” under which an officer is to be “assessed”, as referred to in s. 29(3)(a) of the Regulation. It is Policy 3.19 that deals with assessment. It is a starting point. If there is no problem with the officer’s work, nothing more happens. If the assessment goes badly, the remaining clauses of s. 23 of the Regulation may apply. The process does not call for and there would be no justification in going back and starting again with further assessments in 2009 and 2010. This would do nothing other than interrupt an ongoing process. Looking at the process as a whole, the applicant was given opportunity to comment and take part in the process of evaluation that eventually led to his termination. As Mr. Justice Ramsay notes, it would not be practical to require that daily tracking logs be filled out each day (see: para. 17 of his reasons) or, for that matter, any particular number of times over any given period of time. I repeat, there is nothing in the words of these clauses of the Regulation that requires compliance with Policy 3.14. In these circumstances where the Ottawa Police Service, as the Commission recognized, has gone the proverbial extra mile to assist the applicant and where, in so doing, it can be seen that the requirements of Ontario Regulation 288/10, s. 29(3) (b), (d) and (e) have been complied with, it is unreasonable to re-interpret these requirements in such a way that it requires the Ottawa Police Service to do differently, what has already been done. It leads to a result that Mr. Justice Ramsay has referred to as “perverse” (see: para. 33 of his reasons).

[57] Like Mr. Justice Ramsay, I would grant the application.

Lederer J.

AITKEN J. (In dissent)

[58] Although I take no issue with the general statements of principle enunciated by Ramsay J., unfortunately, it is my view that those principles were not followed when the majority set aside the decision of the Ontario Civilian Police Commission (“OCPC”).

Standard of Review

[59] I agree with Ramsay J. that this court is not reviewing the decision of the Hearing Officer; it is reviewing the decision of the OCPC. The standard of review is reasonableness, in regard to questions of fact, mixed fact and law, and the interpretation of the OCPC’s home statute, the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”), and the Regulations thereunder. I agree that, in reviewing the decision of the Hearing Officer, the OCPC was required to apply the standard of reasonableness in regard to questions of fact or mixed fact and law, and correctness in regard to questions of law. (See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Ontario Provincial Police v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681, at paras. 48-52 (C.A.) and Ontario Provincial Police v. Purbrick, 2013 ONSC 2276, 227 A.C.W.S. (3d) 871, at paras. 11-17 (Div. Ct.).)

[60] In McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paras. 31-33, Moldaver J. explained the rationale underlying the principle enunciated in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34, that, subject to some limited exceptions, an administrative decision maker’s interpretation of its home or closely-connected statutes “should be presumed to be a question of statutory interpretation subject to deference on judicial review”:

The modern approach to judicial review recognizes that courts “may not be as well qualified as a given agency to provide interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work” … [citations omitted]

In plain terms, because legislatures do not always speak clearly and because the tools of statutory interpretation do not always guarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable interpretations … The question that arises, then, is who gets to decide among these competing reasonable interpretations? [citations omitted]

The answer, as this Court has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker – not the courts – to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”.

[61] As stated by the Supreme Court of Canada in Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 50 - 56:

When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons.

A decision will be unreasonable only if there is no line of analysis within the given reasons that would reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere… This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling … [citations omitted]

This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a test of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

[62] In paras. 15, 30 and 32, of his Reasons, Ramsay J. appears to replace the assessment of the OCPC, as to whether the Ottawa Police Service (“OPS”) had complied with mandatory regulatory prerequisites before the Chief of Police could make a complaint against the Respondent for unsatisfactory work performance, with his own opinion as to whether the decision of the Hearing Officer in this regard had been correct. In paras. 47 and 56 of his Reasons, Lederer J. appears to do the same thing. With respect, it is not the function of this court to determine whether the decision of the OCPC, or the Hearing Officer, was correct.

[63] Again, at para. 20 of his Reasons, Ramsay J. stated: “If the Regulation is interpreted correctly, the evidence leads inevitably to the conclusion that at the end of 2008, the Respondent’s performance was assessed in accordance with established procedures.” The same sentiment was expressed at para. 44. Again, with respect, it is not the function of this court to decide on the correct interpretation of the Regulation. The issue is whether the OCPC’s interpretation of the Regulation was reasonable.

[64] Our task is to determine whether the decision of the OCPC, considered as a whole, displays a line of analysis that would reasonably lead the OCPC, from the evidence before it, to the conclusion at which it arrived. In my view, it does. Before identifying that line of reasoning, I note that many factors mandate a high level of deference being afforded the OCPC’s decision.

[65] The OCPC is a specialized tribunal which has extensive duties and powers, including the development of policy, in regard to policing within the province of Ontario. These duties and powers are set out in s. 22 of the PSA:

Powers and duties of Commission

22. (1) The Commission’s powers and duties include,

(a) if the Solicitor General advises the Commission that a board or municipal police force is not complying with prescribed standards of police services,

(i) directing the board or police force to comply, and

(ii) if the Commission considers it appropriate, taking measures in accordance with subsection 23 (1);

(b) conducting investigations with respect to appointing officials under the Interprovincial Policing Act, 2009 under section 25;

(c) conducting investigations with respect to municipal police matters under section 25;

(d) conducting inquiries into matters relating to crime and law enforcement under section 26;

(e) conducting inquiries, on its own motion, in respect of a complaint or complaints made about the policies of or services provided by a police force or about the conduct of a police officer and the disposition of such complaint or complaints by a chief of police or board;

(e.1) Repealed: 2007, c. 5, s. 6 (1).

(e.2) making recommendations with respect to the policies of or services provided by a police force by sending the recommendations, with any supporting documents, to the Solicitor General, the chief of police, the association, if any, and, in the case of a municipal police force, the board;

(f) hearing and disposing of matters referred to it by boards and appealed to it by police officers and complainants in accordance with Part V. R.S.O. 1990, c. P.15, s. 22 (1); 1995, c. 4, s. 4 (3); 1997, c. 8, s. 16 (1-3); 2007, c. 5, s. 6 (1, 2); 2009, c. 30, s. 44.

[66] As well, under s. 87(8) of the PSA, the OCPC is given wide powers on appeal from a decision of a hearing officer:

Powers of Commission

87(8) After holding a hearing on an appeal, the Commission may,

(a) confirm, vary or revoke the decision being appealed;

(b) substitute its own decision for that of the chief of police or the board, as the case may be;

(c) in the case of an appeal from a decision of a chief of police, order a new hearing before the chief of police under subsection 66 (3), 68 (5) or 76 (9), as the case may be; or

(d) in the case of an appeal from a decision of a board, order a new hearing before the board under subsection 69 (8) or 77 (7), as the case may be. 2007, c. 5, s. 10.

[67] No statutory restrictions are placed on the OCPC in terms of the reasons for which it can vary or revoke a decision of the Hearing Officer and in terms of the circumstances in which it is to substitute its own decision for that of the Hearing Officer.

[68] Although there is no privative clause in the PSA in regard to decisions made by the OCPC on appeal under s. 76(9), at the same time, no specific right of appeal is granted, as it is in regard to other decisions taken by the OCPC (see ss. 69(8), 77(7), and 88).

[69] Finally, the interpretation of the statutory and regulatory preconditions that must be followed, before a chief of police can institute a complaint of unsatisfactory work performance against a police officer, necessarily involves policy considerations. When the task of interpreting such preconditions is assigned to a specialized tribunal with focused expertise not only in decision-making, but also in policy analysis, within its realm of operations, a high degree of deference should be afforded its decisions.

Legislative, Regulatory, and Policy Framework

[70] The hearing before the Hearing Officer, in this case, was conducted under s. 76(9) of the PSA, which reads:

Hearing to be held

76(9) Subject to subsection (10) [relating to informal resolution], if at the conclusion of the investigation [of a complaint by the chief relating to unsatisfactory work performance] and on review of the written report submitted to him or her the chief of police believes on reasonable grounds that the police officer’s conduct constitutes … unsatisfactory work performance, he or she shall hold a hearing into the matter.

[71] Under s. 84(1) of the PSA, it was only if unsatisfactory work performance was proved at the hearing on clear and convincing evidence that the Hearing Officer was justified under s. 85(1)(b) to direct that the Respondent be dismissed in seven days, if he failed to resign before that time. However, before the Chief of Police could refer the matter to the Hearing Officer for a consideration of whether there was clear and convincing evidence of unsatisfactory work performance, there were certain procedural requirements that had to be met.

[72] It is not in dispute that s. 29 of O. Reg. 268/10 under the PSA [previously s. 13 of O. Reg. 123/98], which is located in Part VI of the Regulation entitled “UNSATISFACTORY WORK PERFORMANCE”, sets out mandatory preconditions to be followed by a chief of police before he or she can make a complaint of unsatisfactory work performance against a police officer and refer the matter to a hearing. Although the full text of s. 29 of O. Reg. 268/10 is already reproduced above in the Reasons of Ramsay J., for ease of reference, I will repeat it here:

29. (1) Every chief of police shall establish policies for the assessment of police officers’ work performance. O. Reg. 268/10, s. 29 (1).

(2) The chief of police shall make the policies available to the police officers. O. Reg. 268/10, s. 29 (2).

(3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance,

(a) the police officer’s work performance shall have been assessed in accordance with the established procedures;

(b) the chief of police shall advise the police officer of how he or she may improve his or her work performance;

(c) the chief of police shall accommodate the police officer’s needs in accordance with the Human Rights Code if the police officer has a disability, within the meaning of the Human Rights Code, that requires accommodation;

(d) the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer’s work performance; and

(e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. O. Reg. 268/10, s. 29 (3).

[73] It is the interpretation of the requirements of s. 29 of O. Reg. 268/10 which is at the heart of the appeal to the OCPC from the decision of the Hearing Officer.

[74] The first requirement under s. 29(1) is that a chief of police establish policies for the assessment of police officers’ work performance. At the relevant times, the OPS had two such policies in place: policy 3.19 “PERFORMANCE REVIEW” and policy 3.14 “UNSATISFACTORY WORK PERFORMANCE”. That fact was not in dispute.

[75] Policy 3.19 “PERFORMANCE REVIEW” created a performance review process involving three steps:

• an interview with the officer at the commencement of the performance review period to discuss goals, expectations, and career development;
• a tracking procedure in the form of a performance review tracking log to record an officer’s behaviour and daily performance, with entries discussed with the officer as soon as practicable; and
• a performance review at the end of the period to document the results of the performance evaluation, such document to be discussed with the officer.

[76] Performance reviews were to be completed on an annual basis within 30 days of the anniversary of the officer’s hire date with the OPS.

[77] Paragraph 14-9 of policy 3.19 stated that: “Unsatisfactory Work Performance shall be dealt with in accordance with Unsatisfactory Work Performance Policy.”

[78] Policy 3.14 “UNSATISFACTORY WORK PERFORMANCE” reproduced s. 13(3) of O. Reg. 123/98 [which became s. 29(3) of O. Reg. 268/10] and set out the following requirements:

2. Procedures relating to the Performance Management System shall be made available to all members and supervisors.

3. Performance Appraisals shall be completed on each member of the Police Service, whether full or part time, on a regular basis.

4. An investigation shall be conducted into all complaints of Unsatisfactory Work Performance and shall include:

a. a review of the incident leading to the complaint

b. a review of the previous work history of the member

c. any remedial action taken to improve the member’s work performance.

Where, after following a plan implemented pursuant to Ontario Regulation 123/98, and an investigation a member is unwilling or unable to perform satisfactorily in his/her job the Chief of Police may lay a charge of Unsatisfactory Work Performance pursuant to section 64(7).

[79] Under the heading of the roles and responsibilities of supervisors in policy 3.14, the following appears:

After identifying unsatisfactory work performance, in consultation with the member and where appropriate with Human Resources, establish and implement a plan, consistent with Ontario Regulation 123/98, to support the member in achieving satisfactory performance.

While implementing the Unsatisfactory Work Plan;

a. Ensure that the member understands the objective of his performance and where improvement is required

b. Ensure that there are no barriers impeding the members work performance

c. Make every reasonable effort to ensure that the member receives appropriate training, coaching or mentoring [sic] to assist him/her in achieving the desired standard

d. Continually update the evaluation of the member’s work performance

e. Continually update the member on their progress towards meeting the standard

f. Assess the placement of the member in cases where the member is unable to apply the job knowledge and skills, after receiving appropriate training, considering as possible options rotation of duties or a lateral transfer

g. Ensure that the member is aware of the support services available to them, when there is evidence that the member’s failure to achieve the desire standard is the result of personal problems.

Hearing Officer’s Decision

[80] Before the Hearing Officer, the OPS argued that: (1) it had provided clear and convincing evidence that the Respondent’s performance as a police officer was unsatisfactory; and (2) despite some imperfections in the process followed by the OPS in dealing with the Respondent, the process met the requirements of the PSA and O. Reg. 268/10. In this regard, the OPS emphasized, and the Hearing Officer accepted, that all officers involved in assessing the Respondent’s performance, and working with him to improve it, had acted in good faith.

[81] The Respondent argued that: (1) the OPS had not met the statutory preconditions under O. Reg. 268/10 before the chief could initiate a complaint against the Respondent based on unsatisfactory work performance; (2) the Respondent was performing adequately as a second class constable; and (3) the Respondent brought some outstanding skills to the OPS. More specifically, the Respondent argued that many of the allegations of shortcomings on his part dating back to 2009 and 2010 were not documented in tracking logs or in performance reviews, and he was not told precisely what he needed to do to satisfy his superiors. Despite this, these allegations were being relied on as establishing his unsatisfactory work performance.

[82] The Hearing Officer opened his analysis by stating:

As the hearing progressed, a great deal of time was focussed upon the appropriateness of the process. The performance, at times, seemed to become secondary. While I concur that process is important, so too is the evidence of unsatisfactory work performance; particularly in a situation where an individual is expected to work independently and can make life and death decisions while doing so.

[83] When considering “the process”, the Hearing Officer defined his task as being to consider:

… whether or not the process that was undertaken by the Ottawa Police Service was fair, consistent and in pursuant to the Police Services Act. Moreover, did the process adequately advise [the Respondent] that his performance was unsatisfactory, that his performance was under scrutiny, that performance improvements were expected and required, and did the process provide [the Respondent] with the opportunity to improve his performance in order to become qualified for independent patrol.

[84] Importantly, the Hearing Officer went on to say:

Because of the unusual and unique nature of the situation, i.e. the officer had exceeded his probationary period, but nonetheless was not yet ready for independent patrol, the normal procedures for assessing performance would not readily apply. Consequently, the police service had to create a system whereby [the Respondent’s] performance could be observed, assessed and recorded to assist him in overcoming the obstacles to his success.

[85] In other words, the Hearing Officer found as a fact that the OPS had not followed its normal procedures in the assessment of the Respondent’s work performance. Instead, it had come up with an ad hoc arrangement to handle its concerns about the Respondent’s ability to be an independent patrol officer. Before us, the OPS accepted that this had been the finding of fact made by the Hearing Officer (see para. 51 of the Applicant’s Factum). Counsel for the OPS argued that Constable Diafwila’s circumstances were unique and, as a result, the established policies and procedures put in place by the OPS did not apply to him. Therefore, it was reasonable for the Hearing Officer to conclude that the OPS was not required by s. 29 of O. Reg. 268/10 to follow its established policies and procedures on performance evaluation in Constable Diafwila’s case.

[86] In regard to process issues, the Hearing Officer concluded that the OPS had met the prerequisites of O. Reg. 268/10 for the Chief of Police to allege unsatisfactory work performance. He stated:

In short, it is my view that the process undertaken by the Ottawa Police Service – although far from perfect – provided [the Respondent] with an abundance of opportunities to:

• Know the nature of performance improvements required
• Obtain the assistance and advice of experienced officers and trainers
• Clarify with some specificity the nature of improvement required, and
• Demonstrate his ability to perform the required tasks of an independent patrol officer over a significant period of time.

[87] In regard to performance issues, the Hearing Officer concluded that there was clear and convincing evidence that the Respondent’s work performance was unsatisfactory and that it was probably going to remain unsatisfactory; the Respondent was simply not suited to many, if not most, aspects of policing. The Hearing Officer then reviewed the evidence on which he relied in reaching this conclusion.

Arguments Before the OCPC

[88] Before the OCPC, the Respondent argued that the Hearing Officer erred: (1) by not properly applying the statutory preconditions for dismissing the Respondent for unsatisfactory work performance; (2) by breaching the Respondent’s rights to natural justice and procedural fairness; and (3) by making numerous errors in his findings of fact.

[89] In regard to the first ground, the OPS argued that this case was first and foremost about the safety of the Respondent, other officers, and the public. The only obligation of the OPS in terms of process was to prove that the process was fair to the Respondent and that the evidence presented on the substantive issue of unsatisfactory work performance was clear and convincing. The OPS took the position that, once it appeared that the Respondent was unable to perform his job, the Unsatisfactory Work Performance policy superseded the Performance Review policy. Under the Unsatisfactory Work Performance policy, there was no requirement for annual performance reviews, tracking logs, performance improvement plans (PIPs), or written notification of unsatisfactory work performance allegations. The procedure followed by the OPS was extensive, fair to the Respondent, pursued in good faith, and consistent with the spirit and intent of s. 29(3) of O. Reg. 268/10.

[90] The OPS argued that the Respondent was appealing the decision of the Hearing Officer in regard to issues of fact, not law, and the standard of review to be applied by the OCPC was reasonableness. The OPS’s position was that the Hearing Officer was not interpreting the PSA or any regulations thereunder; he was interpreting and applying the internal policies and established procedures of the OPS – something which was purely a question of fact. In this regard, his decision was entitled to deference. Considered as a whole, the decision met the standard of reasonableness.

The OCPC’s Decision

[91] The OCPC commenced its analysis by correctly setting out the appropriate legal principles in play on an appeal from a Hearing Officer. It correctly stated that a reasonableness standard was applicable to findings of fact or mixed fact and law by the Hearing Officer, and a correctness standard was applicable to interpretations of law. It went on to state at paras. 157-161:

The Commission’s role on an appeal is not to second-guess the decision of a hearing officer but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in an intelligible, transparent and logical manner …

In certain limited cases, it may be open to the Commission to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant facts have been ignored …

An appeal to the Commission is an appeal on the record. Unlike a hearing officer, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to a hearing officer’s findings, unless an examination of the record shows that the conclusions cannot reasonably be supported by the evidence ... [citations omitted]

[92] The OCPC determined, as a matter of law, that the provisions in s. 29 of O. Reg. 268/10 were mandatory. That required the Chief of Police to establish policies for the assessment of police officers’ work performance and to have assessed the officer’s work performance in accordance with the established procedures before the Chief could make a complaint against the officer of unsatisfactory work performance. The OCPC found that, as a matter of law, “established procedures” in s. 29(3)(a) referred to “those procedures contained within the policies of the police service” and that, once established, those policies and their application became mandatory preconditions to the Chief initiating a complaint against an officer for unsatisfactory work performance. According to the OCPC, “it must be recognized that such policies create employment standards which govern the conduct of all service personnel” and that “[a] failure to follow those policies vitiates any process initiated to dismiss an officer for unsatisfactory work performance” (at paras. 165-169).

[93] At para 190, the OCPC summarized its interpretation of the interrelationship of policies 3.19 and 3.14 of the OPS as follows:

In our opinion, the process involves a two-step procedure. The police service must strictly apply its performance review policy. Having done so, if the officer’s evaluation indicates unsatisfactory work performance, then the service may proceed to the second step of applying the unsatisfactory work performance policy. The two steps are integral to the whole process of determining whether an officer’s performance issue rises to a level to justify initiating a chief’s complaint under s. 29(3).

[94] The OCPC disagreed with the OPS, and the Hearing Officer, that policies 3.19 and 3.14 of the OPS were not mandatory and were akin to guidelines that offered “wiggle room” in their interpretation and application. The OCPC disagreed with the Hearing Officer that he could exercise discretion in favour of the OPS in circumstances where, although the policies were not followed, the OPS had acted in good faith and had tried to treat the officer fairly. The OCPC disagreed with the Hearing Officer’s assessment that he could consider the fairness of the process and the evidence regarding unsatisfactory work performance at the same time, and give precedence to the latter.

[95] The OCPC’s interpretation of the law was that process and substance were equally critical but that, before the performance issues could be considered, the process mandated by s. 29 of O. Reg. 268/10 had to be strictly complied with. And that included strict compliance with policies 3.19 and 3.14 which, by virtue of the wording in ss. 29(1) and 29(3)(a), were the “established procedures” incorporated into the mandatory regulatory preconditions. Before us, counsel for the OPS acknowledged that the OPS’s “established procedures” under s. 29 were policies 3.19 and 3.14.

[96] According to the OCPC, the policies established by the Chief of Police “for the assessment of police officers’ work performance” must be interpreted in a way that is consistent with the legislative intent of s. 29, which the OCPC defined as being to grant statutory protection to police officers by, in essence, codifying the common law on dismissal for poor work performance (at para. 169).

[97] The importance placed by the OCPC on the regulatory preconditions in s. 29 is supported by jurisprudence. In Ontario (Civilian Commission on Police Services) v. Browne (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, 207 D.L.R. (4^th) 415, at para. 68 (C.A.), Abella J.A. (as she then was), in acknowledging that s. 13(3) of O. Reg. 123/98 [now s. 29(3) of O. Reg. 268/10] set out preconditions to a chief of police laying a complaint against an officer for unsatisfactory work performance, explained the purpose of the preconditions:

In the case of internal complaints, the chief of police brings a complaint directly against a police officer. Since he or she is the officer’s employer and has the power to order the police officer’s dismissal or suspension, among other possible sanctions under s. 68(1), the graduated discipline found in s. 13(3) of the Regulation [O. Reg. 123/98, now s. 29(3) of O. Reg. 268/10] provides necessary and appropriate safeguards in the vulnerable relationship between an employer and employee.

[98] In Kingsbury v. Heighton, 2003 NSCA 80, 216 N.S.R. 277, the Nova Scotia Court of Appeal, in emphasizing the mandatory nature of procedural requirements in regulations relating to the discipline of police officers, stated at para. 96:

Police officers are not employees, but the holders of public office carrying out the duties set out in the Police Act and administered by the board of police commissioners. These provisions are disciplinary in nature affecting the fundamental rights of the police officer respecting his or her professional career. All material requirements must be complied with. The case law demonstrates that there is a clear statutory intent that a police officer is not to be disciplined except pursuant to the procedures set out in the Police Act and the Regulations.

[99] In my view, the OCPC’s interpretation of s. 29 of O. Reg. 268/10, a regulation under its home statute, is entitled to a high degree of deference, considering part of the mandate of the OCPC is to develop policies relating to police forces, and to provide oversight of the conduct of police services, police chiefs, and individual police officers. Its decision as to the legal requirements before the Chief of Police of the OPS could make a complaint of unsatisfactory work performance against the Respondent, and its finding that the Hearing Officer had misinterpreted the law in this regard, were reasonable. Its interpretation of s. 29 respected principles regarding statutory interpretation, such as assigning plain meaning to the words used, giving meaning to all provisions, and reading all provisions so that they sit together in a rational, coherent fashion consistent with the purpose of the legislation. As well, the interpretation was consistent with earlier jurisprudence about the mandatory nature of the conditions set out in s. 29 and the reason for their existence.

[100] Furthermore, it was reasonable for the OCPC to conclude that, based on the evidence adduced at the hearing, and applying the correct interpretation of s. 29, the decision of the Hearing Officer that the mandatory requirements of s. 29 had been met was unreasonable. Some of the evidence relied on by the OCPC to arrive at this conclusion is referred to in para. 191 of the OCPC’s decision. Additionally, there was the following evidence on the record:

• The OPS’s Director of Human Resources acknowledged that the OPS had not done well in its treatment of the Respondent.
• The Director of Human Resources and Superintendent Delaney acknowledged at a number of case conferences regarding the Respondent, and during their testimony at the hearing, that the OPS’s policies regarding performance evaluation had not been complied with and, more specifically, that concerns about the Respondent’s performance had not been properly documented.
• The terms of the PIP that had been put into effect informally in January 2009, and formally in March 2009, were not complied with. Tracking logs were not kept and discussed with the Respondent. The Respondent’s supervisor, who was supposed to meet with him bi-weekly, did not do so. The Respondent was shifted to desk duty and left there for over a year, requiring him to be retrained before being returned to a patrol vehicle.
• The Respondent was told in the early summer of 2009 that the PIP was no longer in effect and that it was to be replaced by a Personal Learning Plan (“PLP”). The Respondent successfully completed the PLP in September 2010 and was assigned to a platoon in October 2010.
• At that time, the Respondent was verbally advised of the support, level of supervision, and feedback he could expect for the next 250 hours. This was conveyed to him in writing only on November 19, 2010, approximately four weeks after the arrangements summarized in the letter had been put into place.
• On December 10, 2010, prior to the 250 hours of coaching and feedback having been completed, the decision was taken to terminate the Respondent’s plan and refer the file to Professional Standards.

[101] In essence, the OCPC accepted the finding of fact of the Hearing Officer that the OPS had not followed its established procedures when dealing with the Respondent but, instead, had developed, on an ad hoc basis, a unique way in which to approach his performance evaluation. As a matter of law, the OCPC decided that this was not an approach open to the OPS, even if the procedure adopted by the OPS tried to respect the spirit and intent of s. 29 of O. Reg. 268/10. The OCPC explained clearly and logically how it arrived at this decision regarding regulatory requirements. Its decision in this regard meets the requirements of transparency, intelligibility, and justification and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

Conclusion

[102] The decision of the OCPC to allow the appeal and reinstate the Respondent as a second class constable with the OPS was justified on the basis of its determination that the Hearing Officer had made an error of law, without considering the issues of whether there had been a breach of the rules of natural justice and procedural fairness at the hearing before the Hearing Officer, or whether the Hearing Officer had ignored or misapprehended evidence.

[103] I would dismiss the appeal from the decision of the OCPC.

Aitken J.

Date: March 10, 2015

CITATION: Ottawa Police Services v. Diafwila, 2015 ONSC 931

DIVISIONAL COURT FILE NO.: DC-14-2021

DATE: 2015/03/10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RE: Ottawa Police Services, Applicant

AND

Constable Emmanuel Diafwila, Respondent

BEFORE: Aitken, Lederer and Ramsay JJ.

COUNSEL: Robert E. Houston, Q.C. and Jonathan Ferris, Counsel, for the Applicant

Paul Champ, Counsel, for the Respondent

REASONS FOR DECISION

Ramsay J. (Lederer J. concurring)

Aitken J. dissenting

Released: March 10, 2015