Pereira v. Hamilton (City) Police Service, 2017 ONSC 924
CITATION: Pereira v. Hamilton (City) Police Service, 2017 ONSC 924
DIVISIONAL COURT FILE NO.: 113/16 DATE: 20170206
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MORAWETZ R.S.J., NORDHEIMER and MULLIGAN JJ.
B E T W E E N :
HELENA PEREIRA
Applicant
– and –
HAMILTON POLICE SERVICE and MORRIS P.B. ELBERS
Respondents
Karen Ensslen
for the Applicant
David Migicovsky
for the Respondent Hamilton Police Service
HEARD at Toronto: February 6, 2017
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.: (orally)
[1] Sergeant Helen Pereira brings this application for judicial review from a decision of a hearing officer who is conducting a hearing pursuant to s.76(9) of the Police Services Act, R.S.O. 1990, c. P.15. In the decision at issue, the hearing officer declined to recuse himself after being requested to do so by the applicant on the basis that there existed a reasonable apprehension of bias.
[2] In 2013, the applicant was charged by the Chief of the Hamilton Police Service with one count of discreditable conduct, two counts of unnecessary or unlawful exercise of authority and three counts of insubordination.
[3] The hearing proceeded before the hearing officer in various stages in the first half of 2015. On July 27, 2015, the hearing officer released his decision. He found the applicant guilty of certain of the charges but not of others. A further hearing, to determine the appropriate penalty to be imposed, was then set for September 11, 2015.
[4] Prior to the date set for the penalty hearing, the applicant brought a motion requesting that the hearing officer recuse himself on the basis that there existed a reasonable apprehension of bias. It is not necessary for these reasons to get into the grounds for that motion. I say that because the respondent submits that this motion for judicial review is premature. The respondent bases its submission on the fact that the applicant has an automatic right of appeal to the Ontario Civilian Police Commission from the decision of the hearing officer. The respondent says that the appropriate forum, at least in the first instance, for any argument for the review of the recusal decision is before the Commission and not by way of judicial review to this court.
[5] I agree that this application for judicial review is premature. As a general rule extraordinary remedies, such as judicial review, are not to be entertained if there is another avenue of relief available to the party: Re Bartoski and Moody (1983), 1983 1609 (ON SC), 42 O.R. (2d) 647 (Div. Ct.).
[6] Judicial review is a discretionary remedy and while I appreciate that s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 says that judicial review is available “despite any right of appeal” that does not change the discretionary nature of the remedy nor does it change the general approach that courts, including this court, have taken as to when to exercise that discretion. As Justice Molloy said in Ackerman v. Ontario Provincial Police Service, 2010 ONSC 910, [2010] O.J. No. 738 (Div. Ct.) at para. 18:
The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime.
[7] The applicant has referred us to cases where this court did permit a judicial review application, notwithstanding the existence of a right of appeal. However, in many of those cases, the application was brought before the underlying proceeding had begun. In those cases the court considered the application for judicial review to avoid the expenditure of time and expense, in pursuing an entire hearing, that may be fatally flawed. That is not this case.
[8] In another case, the application for judicial review was considered because there appeared to be a concern that the Commission’s role on appeal was somehow limited. That concern, if it existed, has been resolved by amendments to the Police Services Act that has made it clear the Commission may, on appeal, “receive new or additional evidence as it considers just”: s.87(5).
[9] It is therefore clear, and the applicant accepts, that the Commission would have authority to consider the bias argument on an appeal and, if sustained, would have the authority to set aside the findings and order a fresh hearing.
[10] I would also note that all of the cases, relied upon by the applicant, predate the decision of the Court of Appeal in Volochay v. College of Massage Therapists of Ontario (2012), 2012 ONCA 541, 111 O.R. (3d) 561 (C.A.) where Laskin J.A., at paragraph 70, reiterated that “exceptional circumstances are still required to justify early intervention.”
[11] In this case, the hearing has been held and the determination has been made on the merits. The only remaining step is penalty. Costs associated with completing the hearing are therefore limited. In those circumstances, it is appropriate to allow the appeal process to play out. Depending on the results of any appeal to the Commission, the applicant would have a further right of appeal to this court.
[12] The application for judicial review is therefore dismissed. There will be no order as to costs.
NORDHEIMER J.
I agree
MORAWETZ R.S.J.
I agree
MULLIGAN J.
Date of Reasons for Judgment: February 6, 2017
Date of Release:
CITATION: Pereira v. Hamilton (City) Police Service, 2017 ONSC 924
DIVISIONAL COURT FILE NO.: 113/16 DATE: 20170206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ R.S.J., NORDHEIMER and MULLIGAN JJ.
B E T W E E N :
HELENA PEREIRA
Applicant
– and –
HAMILTON POLICE SERVICE and MORRIS P.B. ELBERS
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: February 6, 2017
Date of Release: February 8, 2017