CITATION: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824
DIVISIONAL COURT FILE NO.: 106/16
DATE: 20161012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
ADAM NOBODY
Applicant (Moving Party)
– and –
ONTARIO CIVILIAN POLICE COMMISSION
Respondent
Marc Gibson, for the Applicant (Moving Party)
Melanie Goren, for the Respondent
Lynette D’Souza, for the Proposed Respondent the Independent Police Review Director
Lawrence Gridin and Deepa Negandhi, for the Proposed Respondents Michael Adams, David Donaldson, Geoffrey Fardell and Oliver Simpson
No one appearing for the Proposed Respondent Toronto Police Service
HEARD: September 15, 2016
M. DAMBROT J.:
[1] The Moving Party (“Nobody”) brings this motion to add the Independent Police Review Director (the “Director”), the Toronto Police Service (“TPS”), and TPS constables Michael Adams, David Donaldson, Geoffrey Fardell and Oliver Simpson (the “constables”) as respondents in his application for judicial review of a decision of the Ontario Civilian Police Commission (the “Commission”). All of the parties and proposed parties consent to the addition of all of the proposed respondents, save the constables, who oppose only the addition of the Director as a respondent.
Background
[2] On June 26, 2010, Nobody was arrested at a G20 protest at Queen’s Park in Toronto. The constables were all involved in his arrest. On December 21, 2010, Nobody made a formal complaint to the Office of the Independent Police Review Director (“OIPRD”) against a number of police officers.
[3] After the OIPRD completed its investigation of Nobody’s complaint, the Director concluded that there were reasonable grounds to believe that the constables had committed acts that constituted misconduct within the meaning of s. 80 of the Police Services Act (“PSA”) and that the misconduct was serious in nature. The Director referred the matter to the chief of the TPS (the “Chief”) in accordance with s. 68(3) of the PSA. By virtue of s. 68(5), the Chief was obliged to hold a hearing into the matter, unless he was of the view that the misconduct was not of a serious nature. The Director also directed the Chief, pursuant to s. 72 of the PSA, to notify him of the date of the hearing and any dates for continuance.
[4] The constables were charged with misconduct, and were given notice that a hearing would be held before a TPS disciplinary tribunal (the “Tribunal”). A hearing was held, and on May 28, 2015, the Tribunal dismissed the charges against each of the constables. Nobody received the decision on June 1, 2015. He was entitled to appeal the decision of the Tribunal to the Commission within 30 days of receiving notice of the decision by serving written notice on the Commission stating the grounds on which the appeal was based. On July 2, 2015, counsel for Nobody faxed a notice of appeal to the Commission.
[5] Although Nobody faxed his notice of appeal to the Commission within 30 days of actually receiving the decision, s. 96(2) of the PSA deems a faxed notice to be received the day after it is sent, a day that was arguably not within the 30-day time limit. The constables brought a motion in writing before the Commission for an order dismissing Nobody’s appeal on this basis. In their notice of motion, the constables included the Director in the heading, but identified him as an “Intervener.” The constables served their motion record and book of authorities on the Director. The Director served a factum on the other parties and filed it with the Commission. He identified himself in the heading as a “Responding Party/Respondent.”
[6] On February 4, 2016, the Associate Chair of the Commission granted the constables’ motion, ruling that service of Nobody’s notice of appeal was untimely, and that the Commission had no power to extend the time for service. The Director was listed in the heading of the written decision as an intervener in conformity with the notice of motion.
The Application for Judicial Review
[7] On March 4, 2016, Nobody commenced an application to the Divisional Court for judicial review of the decision of the Commission. In his notice of application, he listed only the Commission as a respondent in the heading, but, included the constables, the TPS, the Director, and the Attorney General for Ontario in the list of respondents in the body of the notice, and did in fact serve each of them as required.
[8] The Director served and filed a notice of appearance, as did the constables, the Commission, and the TPS.
[9] Counsel for Nobody served his application record and factum on the Commission and on all the proposed respondents including the Director, and filed them with the court. The Director served his factum on Nobody, the Commission, and all the other proposed respondents, and also filed them with the court. Presumably the other proposed parties did the same. No one raised any objection to the participation of the Director or anyone else in the judicial review application at that time. However when Nobody communicated with the Divisional Court office, he was advised that he would have to bring a motion to have all parties other than the Commission named as respondents.
[10] On May 6, 2016, counsel for Nobody wrote to counsel for the Commission and the proposed respondents advising them that he had been informed by the Divisional Court office that he was required to bring this motion, and seeking their consent. All parties consented to the naming of all proposed respondents as respondents except the constables, who opposed only the addition of the Director as a respondent.
[11] On the hearing of this motion, counsel for Nobody explained that he believed that the proposed parties were in fact proper parties to the application, that he had omitted to name them through inadvertence, and that his interest was to fulfil his obligation under the applicable rules and to ensure that there was a fair hearing of the issues.
[12] Counsel for the constables explained that the constables opposed the addition of the Director as a party because the OIPRD was intended to be a neutral and independent agency, and the Director’s efforts to extend his power should be contained in order to maintain that neutrality and independence.
Analysis
[13] I begin by saying that I accept Nobody’s characterization of his failure to include the Director, the TPS, and the constables in the heading of the notice of application. He considered them to be respondents, and omitted their names in the heading through inadvertence. I conclude that the names of all of them ought to have been included in the heading, and that they should be added now. I come to this conclusion through three different, but related routes. I will consider each of them in turn. Since only the inclusion of the Director is in issue, I will make reference only to him in the course of this discussion.
Is the Director Already a Named Respondent?
[14] This motion is unnecessary if the Director is already named as a respondent in the notice of application. In my view, he is. I reach this conclusion based on the face of the notice of application. As I have noted, the Director’s name does not appear in the heading, but does appear later in the list of respondents. As a result, the Director is in fact named as a respondent, albeit imperfectly. This is apparent from an examination of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”), and the forms under the Rules (the “Forms”).
[15] Rule 4.02(1) provides that every document in an application (including the originating process) shall have a heading in accordance with Form 4B that sets out, among other things, the title of the proceeding in accordance with Rule 14.06.
[16] The general heading of documents required by Form 4B includes a title of proceedings in which the applicant and respondent are named.
[17] Similarly, Rule 14.06(3) provides:
In an application, the title of the proceeding shall name the party commencing the application as the applicant and the opposite party, if any, as the respondent and the notice of application shall state the statutory provision or rule, if any, under which the application is made.
[18] However this does not exhaust the prescriptions of the Rules concerning the contents of a notice of application. Rule 1.06(1) provides, in addition, the following:
The forms prescribed by these rules shall be used where applicable and with such variations as the circumstances require. [Emphasis added.]
[19] Form 14E is the form prescribed for a notice of application. Form 14E requires the notice to begin with a general heading that is in conformity with Form 4B, next to advise the respondents about the application and the need to serve and file a notice of appearance, then to list the “name and address of each respondent,” and finally to provide the nature of and grounds for the application.
[20] As is apparent, viewed cumulatively, the Rules and the Forms require a respondent to be named twice in a notice of application. Here the Director was named only once: in the list of respondents but not in the heading. He was served, filed a notice of appearance, filed a factum, and otherwise proceeded as a respondent. In my view, the Director was named as a respondent, and no one involved in this litigation doubted it for a moment. At the worst, it might be said that he was named imperfectly.
[21] Rule 14.09 provides that an originating process that is not a pleading may be struck out or amended in the same manner as a pleading.
[22] Rule 26.02 provides:
A party may amend the party’s pleading,
(a) without leave, before the close of pleadings, if the amendment does not include or necessitate the addition, deletion or substitution of a party to the action;
(b) on filing the consent of all parties and, where a person is to be added or substituted as a party, the person’s consent; or
(c) with leave of the court.
[23] Since the proposed amendment to the notice of application does not add or substitute a party, but merely corrects an inadvertent error in the heading, I am of the respectful view that the advice provided to Nobody was in error, that no motion was necessary, and that the amendment could have been made by the applicant without leave. As a result, I confirm that the Director is a respondent in this application, and, out of an abundance of caution, give leave to Nobody to amend the heading in the notice of application to properly reflect that fact.
Ought the Director to Have Been Named as a Respondent?
[24] I have already said that in my view, the Director was in fact named as a respondent in the notice of application, and that there is no need for this motion. However, if I am wrong and he was not named, I will go on to consider whether or not he ought to have been named as a respondent, and accordingly whether or not I should order him to be added.
[25] I begin by noting the source of my authority to add a respondent who was not named but ought to have been. Rule 5 applies to both actions and applications. Rule 5.03(4) provides:
The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
[26] I note that because Rule 5 applies to actions and applications, it necessarily speaks of adding a party, rather than a defendant or respondent. In our context, I will continue to speak of adding the Director as a respondent.
[27] The Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) does not specify who should be named as a respondent to an application for judicial review. It is common in Ontario to name the decision maker as a respondent, as was done here, but even that is not required (see Ontario Provincial Police v. MacDonald, 2009 ONCA 805, 255 O.A.C. 376, at para. 22). However the decision maker may be a party if it chooses (JRPA, s. 9(2)). Beyond the decision maker, it is generally understood that all persons who participated in the administrative hearing under review should be named as respondents.
[28] For example, in Facility Association v. Board of Commissioners of Public Utilities (Nfld. and Lab.), 2003 NLSCTD 163, 231 Nfld. & P.E.I.R. 253, at para. 27, Green C.J.T.D., as he then was, concluded that the proper approach “is to name as respondents all those who participated as parties in the tribunal below.” In that case, he applied this principle to an intervener before a tribunal. In reaching this conclusion, Green C.J.T.D. relied on the statement still found at para. 4:4500 in Donald J.M. Brown, Q.C. & The Honourable John M. Evans, Judicial Review of Administrative Action in Canada, loose-leaf (2016-Rel. 1) (Toronto: Thomson Reuters, 2016) that “[g]enerally speaking, all participants in an administrative hearing should be named as respondents to any judicial review proceeding connected with it.”
[29] The authors cite several additional authorities in support of this statement. Sara Blake, Administrative Law in Canada, 5th ed. (Markham, Ont.: LexisNexis Canada Inc., 2011), at p. 189 is to similar effect.
[30] I agree with the decision of Green C.J.T.D. on this point, and with the passage in Brown & Evans. It should not be open to an applicant to pick and choose who amongst the participants in an administrative proceeding should be named as a respondent on judicial review. The proper approach to naming respondents should be clear and consistent. I note that Green C.J.T.D. speaks of naming persons “who participate as parties in the tribunal below” while Brown & Evans refer to “participants in an administrative hearing” (emphasis added in each case). I see this as a distinction without a difference. Generally speaking, a party to a legal proceeding should be understood in this context to simply be someone who had or was given the right to participate in the administrative hearing.
[31] The constables deny that the passage in Brown & Evans is an accurate statement of the law, but go on to say that even if it is, it does not relate to all participants before a tribunal. It is limited to parties whose “interests are at issue.” They take the position that the Director was not such a party, and cannot benefit from this principle. While I am not certain I know exactly what the constables mean by a party whose interests are at issue, I have already noted that neither Green C.J.T.D. nor Brown & Evans were of the view that the principle is restricted in this way, and neither am I. But in any event, the Director is not excluded from the principle for the following reasons.
[32] I will examine the role of the Director in the overall scheme of misconduct complaints made against the police in greater detail under the next heading; for now I refer to s. 87 of the PSA, which deals with appeals to the Commission. Section 87(1) provides that an appeal to the Commission may be brought by a police officer or complainant from a decision made after a hearing into alleged misconduct of that police officer. Section 87(7) provides:
The Independent Police Review Director is entitled to be heard, by counsel or otherwise, on the argument of the appeal of a decision made in respect of a complaint made by a member of the public.
[33] The constables resist the inference that this provision means that the Director was a party to the appeal before the Commission, and as a result is entitled to be a respondent on judicial review, on two grounds. First, they say that having a right to be heard before the Commission is not the equivalent of being a party whose interests are at issue before the Commission. Second, they say that the right to be heard in s. 87(7) relates only to the argument of the appeal itself, and not to pre-hearing steps such as a motion to dismiss an appeal because it is out of time. Since the appeal was not argued in this case, the Director’s right to be heard did not arise. Although the Commission permitted him to argue on the motion, he did not have a right to do so. Therefore, he was not entitled to be a respondent on judicial review.
[34] With respect to the first point, the constables note that s. 83(3) of the PSA makes the prosecutor, the subject officer, and the complainant, but not the Director, “parties” to a police discipline hearing. They observe that while s. 87(7) does permit the Director to participate in an appeal to the Commission from a disciplinary decision, it does not use the word “party.” It provides only that “the Director is entitled to be heard, by counsel or otherwise, on the argument of the appeal.” They suggest that the use of different words in different parts of a single statute suggests that a different meaning is intended. I would not make much of this distinction.
[35] I note that the PSA does not use the word “party” in respect of an appeal to the Commission at all. Section 87(1) of the PSA provides a right of appeal to a police officer and a complainant, if any, but it does not specify who may be a participant on such an appeal. It obviously assumes that the parties to the initial hearing will have the right to be heard by the Commission. But since the Director is not entitled to appear or be heard at an underlying discipline hearing, it was necessary for the Legislature to specify that the Director has a right to be heard on the appeal in order to provide the Director with that right. Despite the use of the word “party” elsewhere in the PSA, I see no intention from the choice of language in s. 87(7) to make some grand distinction between the right of the Director to participate in the appeal and the right of the police officer and the complainant to participate in it. If the common law gives participants in an appeal such as the complainant and the constables the right to be respondents on judicial review, then it gives the Director, who has a statutory right to be heard at the appeal, the right to be a respondent on judicial review as well.
[36] I would characterize the second point raised by the constables as unduly technical. When the PSA gives the Director the right to be heard on an appeal to the Commission, by necessary implication it gives the Director the right to participate in pre-hearing matters such as scheduling hearings, pre-hearing conferences, pre-hearing determinations of the admissibility of fresh evidence, as well as motions such as the one brought by the constables in the instant case. While it was an efficient use of the Commission’s time for the constables to raise the issue concerning the timely filing of the notice of appeal in a pre-hearing motion, the issue could instead have been raised at the hearing. If it had been, the Director would undoubtedly have been entitled to be heard on the issue.
[37] In conclusion, the role played by the Director on the appeal, however characterized, entitled him to be named as a respondent on the judicial review application, and I would so order on that basis as well.
[38] If the Director was not named as a respondent in the notice of application, he should have been, and I order that he be added as a respondent on this motion pursuant to the first branch of Rule 5.03(4).
[39] I add this cautionary note. Nothing I have said about who should be named as a respondent on judicial review should be taken to fetter the discretion of the court to remove a respondent from a judicial review application under Rule 5.04(2) where the court thinks it appropriate, or to place limits on a respondent’s participation. However, in this case I have not been asked to remove the Director, and I would not do so if asked for reasons that will soon become apparent.
Is the Presence of the Director as a Respondent Necessary to Enable the Court to Adjudicate Effectively and Completely on the Issues in the Proceeding?
[40] A proper consideration of this issue necessitates a wider review of the role of the Director in the Ontario police complaints system.
[41] The OIPRD was established in 2009 in response to a report prepared by the Honourable Patrick J. LeSage, Q.C. (Report on The Police Complaints System in Ontario (Toronto, 2005)) (the “LeSage Report”) that recommended a more transparent and accessible complaints system. Under this system, the Lieutenant Governor in Council appoints the Director on the recommendation of the Attorney General (PSA, s. 26.1(1)). The Director’s function is to manage complaints made to him or her by members of the public in accordance with the PSA and its regulations and to exercise any additional powers and duties assigned to the Director in the regulations (PSA, s. 26.2).
[42] In Figueiras v. (York) Police Services Board, 2013 ONSC 7419, 317 O.A.C. 179 (Div. Ct.), at para. 13, this court described the OIPRD as follows:
The OIPRD is an arms-length body of the Ontario Ministry of the Attorney General that administers the public complaints system against police officers in Ontario. It is staffed by civilians; the Director of the OIPRD (the “Director”) makes decisions independent of government, the police, and the public; and the OIPRD’s powers, duties, and functions are governed by the [PSA].
[43] Similarly, the Court of Appeal in Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, 123 O.R. (3d) 574, at para. 32, summarized the role of the Director under Part V of the PSA as follows:
Part V provides for the supervision and treatment of complaints made to the Director by members of the public concerning police policies, services or conduct, and the disciplinary proceedings that may or may not flow from those complaints. Section 26.2(a) of the Act mandates the Director “to manage complaints made to him or her by members of the public”. Part V lays down the procedure for doing so.
[44] When a complaint about the conduct of a police officer other than a chief or deputy chief is made to the Director, he must, pursuant to s. 61(5) of the PSA (subject to his power under s. 60 to decline to deal with a complaint), either refer the complaint to a chief of police for investigation under s. 66 or s. 67, or retain it for investigation under s. 68. Upon completion of an investigation of a retained complaint, if the Director believes on reasonable grounds that the conduct of the police officer who is the subject of the complaint constitutes misconduct, he must, pursuant to s. 68(3), refer the matter, together with a written report, to the chief of the police force to which the complaint relates. Unless, after reviewing the report, the chief of police is of the opinion that the misconduct is not of a serious nature, the chief of police is obliged by s. 68(5) to hold a hearing into the matter.
[45] The constables would have it that the role of the Director substantially consists of the receipt and screening of public complaints akin to the role of a police officer investigating a crime: once a matter is referred to a prosecutor, the decisions concerning whether or not to proceed, and how to proceed are the prosecutor’s decisions, and not his. There is no doubt that in Canada we cherish the separate and independent roles of investigator and prosecutor in the ordinary criminal process, but the structure of Part V of the PSA does not precisely parallel the usual separation of responsibilities, for good reason.
[46] For example, in addition to the right of the Director to be heard on an appeal to the Commission pursuant to s. 87(7), the Director has the following extraordinary powers and responsibilities:
• Once the Director has referred a matter to a chief, and until the hearing has commenced, the Director may direct the chief to deal with the matter as the Director specifies (s. 72(1)(a)), may assign the conduct of the hearing to the chief of another force (s. 72(1)(b)), and may require the chief to take any other action with respect to the complaint that the Director considers necessary in the circumstances (s. 72(1)(d)).
• When a complaint is referred to a chief for investigation and the chief concludes that the complaint is not substantiated or that the conduct complained of is not of a serious nature, the Director is required to review the decision at the request of a complainant and may direct the chief to deal with the complaint as the Director specifies (s. 71).
• Once a hearing has commenced, a complainant cannot withdraw a complaint without the consent of the Director (s. 75).
[47] This extended role of the Director, although unusual, exists for good reason. In a criminal case, once a police officer charges a person with an offence, counsel acting on behalf of the Attorney General has charge of the conduct of the prosecution. The historical independence of the Attorney General and the separation of the Attorney General’s function from the function of the police give confidence to the public that the prosecution will be conducted in accordance with the law.
[48] However, in the police complaints system, when the Director refers a matter that he believes on reasonable grounds constitutes misconduct to a chief of police pursuant to s. 68(3), the chief of police is required by s. 68(5) to hold a hearing into the matter save in narrow circumstances and, pursuant to s. 82(1), to designate a prosecutor. Section 82(1) further provides that the prosecutor must be a police officer from any police force of a rank equal to or higher than that of the police officer who is the subject of the hearing or a person authorized under the Law Society Act. I do not doubt that chiefs of police and their prosecutors, whether police officers or lawyers, consistently act independently and in accordance with the law. But given the sensitivity of allegations of police misconduct, an ongoing role given to the Director can only enhance public confidence in the complaints system.
[49] The Director submits, and I agree, that he holds a unique role under the Part V of the PSA, one that allows him to manage and oversee the public complaints process and ensure the public interest through his various functions under the PSA. It is fair to say that the creation of the office of the Director is the cornerstone of the recommendations of the LeSage Report for a more transparent and accessible police complaints system in Ontario. The Director’s participation in an application for judicial review of an appellate decision of the Commission is consistent with these goals of transparency and accessibility. Given the important purpose of his office and his unique role and functions, as well as his statutory interest and his subject matter expertise in the public complaints process, it is impossible to resist the conclusion that his presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding.
[50] The position of the constables that the Director is not a necessary party to this proceeding flies in the face of another fundamental purpose of the complaints system: to enhance public confidence in a process that helps ensure that the extraordinary powers of police officers are exercised in accordance with the law (see Figueiras, at para. 45). The role and responsibilities exercised by the Director are essential to this purpose as well, and further support the conclusion that his presence as a party is necessary in this proceeding.
[51] My conclusion is supported by two earlier decisions of this court, both with reasons recorded in hand-written endorsements. In Figueiras v. (York) Police Services Board (May 22, 2013), Toronto, 568/12 (Div. Ct.), the maker of a public complaint of police misconduct brought an application for judicial review of a refusal by the Regional Municipality of York Police Services Board to comply with the request of the Chief of the York Regional Police Service to serve a notice of hearing pursuant to s. 83(17) of the PSA. On a motion brought before the hearing of the judicial review application, Swinton J. added the Director as a respondent to the application. Although the order of the court was made on consent, the court noted, in its endorsement, that “[t]he Director has a direct interest in this proceeding, and it is reasonable to add him as a participant.”[^1]
[52] More recently, in Independent Police Review Director v. Regional Municipality of Niagara Police Services Board (May 30, 2016), Toronto, 346/15 (Div. Ct.), a panel of this court heard an application brought by the Director for judicial review of a decision of a police services board declining to give notice of a disciplinary hearing to subject police officers more than six months after a complaint was referred to a chief of police by the Director in circumstances where the Director asserted that it was reasonable to do so pursuant to s. 83(17) of the PSA. The application is still under reserve, but on May 30, 2016, at the outset of the hearing, the subject officers challenged the standing of the Director to bring the application. The panel concluded that the Director did have standing. The court stated: “We are of the view that the Director does have standing. He is directly affected by the procedural decision that is the subject of this application. See sections 61(7) and 72(1)(a) of the Police Services Act, which give the Director an ongoing role in procedural aspects of a complaint after a referral to a Chief of Police.”
[53] While each of these decisions concerns judicial review of a decision of a police services board, not of the Commission, and is otherwise distinguishable from this one, they both lend support to my view that the Director has an ongoing role, of importance to the public, with respect to complaints after referral, making his presence as a party necessary in a proceeding such as this one.
Disposition
[54] The motion is granted, and the Director is confirmed as a respondent in this application. The heading of the notice of application may be amended to properly reflect that fact. No costs were sought by any party, and none are ordered.
Dambrot J.
RELEASED: October 12, 2016
CITATION: Nobody v. Ontario Civilian Police Commission, 2016 ONSC 5824
DIVISIONAL COURT FILE NO.: 106/16
DATE: 20161012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ADAM NOBODY
Applicant (Moving Party)
– and –
ONTARIO CIVILIAN POLICE COMMISSION
Respondent
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: October 12, 2016
[^1]: The decision of the court, which expands on the reasons for granting standing to the Director, will be released shortly: 2016 ONSC 5280.