CITATION: The Independent Police Review Director v. Regional Municipality of Niagara Police Services Board, 2018 ONSC 4966

DIVISIONAL COURT FILE NO.: 596/17

DATE: 20180829

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MARROCCO A.C.J.S.C., HARVISON YOUNG & MEW JJ

BETWEEN:

THE INDEPENDENT POLICE REVIEW DIRECTOR

Applicant

– and –

REGIONAL MUNICIPALITY OF NIAGARA POLICE SERVICES BOARD, OF POLICE BRYAN MACCULLOCH, GEORGE PARPERIDES, PAUL ROGERS and BRYAN CLARK

Respondents

Mark Sandler and Amanda Ross, for the Applicant

Harry G Black, for the Respondents George Parperides and Paul Rogers

HEARD at TORONTO: May 31, 2018

MARROCCO A.C.J.S.C.

[1]

Background

Mr. Clark is a respondent on this application for judicial review. However, he did not participate in this proceeding.

2Chief of Police Bryan MacCulloch is a respondent on this application. Chief MacCulloch did not participate in this proceeding although there is a letter in the Application Record from his counsel indicating that the Chief of Police supports the application.

3The Regional Municipality of Niagara Police Services Board did not appear.

4The only parties who responded to this application were Constable George Parperides and Staff Sergeant Paul Rogers. For convenience I will refer to them as the respondents.

5Bryan Clark was arrested in the early hours of December 27, 2013 by Niagara Regional Police officers for the planned break and enter and theft of a large quantity of copper wire from a commercial building. His arrest followed a police chase. Prior to his arrest, Mr. Clark crashed a truck, which he had stolen to make his getaway. After crashing the truck, Mr. Clark fled on foot into a forested area. Constables MacLeod and Kroon found and used force to detain Mr. Clark in the forested area.

6The respondent, Constable George Parperides, formally arrested Mr. Clark at the scene and drove him to a Niagara Regional Police station. There was no suggestion that Officer Parperides participated in the actual apprehension of or applied any force to Mr. Clark.

7In the police car Mr. Clark complained of a broken jaw. Constable Parperides did not think that Mr. Clark’s jaw was broken and did not obtain medical assistance for him. However, he asked Mr. Clark to repeat his complaint when they arrived at the station.

8The respondent, Staff Sergeant Paul Rogers, was the officer in charge of the station when Constable Parperides arrived there with Mr. Clark. Mr. Clark repeated that he thought his jaw might be broken although he was equivocal about wanting to go to the hospital. In fact, the booking process was audio and video recorded. It is described in the factum of the respondents, Parperides and Rogers, at paragraph 13. The booking photographs show Mr. Clark with facial injuries consistent with a person who had been in a fight with two police officers and a motor vehicle crash.

9Staff Sergeant Rogers did not obtain medical assistance for Mr. Clark.

10Following his court appearance, Mr. Clark was taken to the Niagara Regional Detention Centre. The Detention Centre refused to accept him because of his injuries. Mr. Clark was then taken to hospital where he was diagnosed with a broken jaw and then returned to the Detention Centre. Treatment for the broken jaw was scheduled for the following week. Shortly, after returning to the Detention Centre, Mr. Clark went into convulsions from an undiagnosed brain injury.

11Mr. Clark complained to the applicant/Director on February 6, 2014, claiming that one of the police officers who apprehended him in the forested area caused his injuries by hitting him with a police baton. Pursuant to s. 61(5)(c) of the Police Services Act (the “Act”), the applicant retained the complaint on February 19, 2014.

12Mr. Clark’s brain injury was consistent with someone who had been in a motor vehicle crash and whose head struck the steering wheel or dashboard. Mr. Clark’s broken jaw was complicated by another medical issue that weakened the jawbone, with the result that any impact could have caused it to break. A pathologist retained by the applicant could not confirm that Mr. Clark’s injuries were consistent with baton strikes and, as a result, the applicant’s investigation did not find enough evidence to link Mr. Clark’s injuries with the use of force applied to him by Constables MacLeod and Kroon when they apprehended him in the forested area.

13As a result, the applicant determined that there was insufficient evidence to establish that those officers had assaulted Mr. Clark, so the applicant found the allegation of assault unsubstantiated.

14The applicant’s investigation did find enough evidence to believe that the respondents may have neglected their duty by failing to provide Mr. Clark with medical treatment.

15As a result, a hearing into their conduct is required under section 83 of the Act.

16However, subsection 83(17) of the Act provides that if six months (or more) have elapsed since the Office of the Independent Police Review Director (the “OIPRD”) retained the complaint, no notice of hearing shall be served unless the relevant police services board believes it was reasonable in the circumstances to have delayed serving the notice of hearing.

17More than 6 months had elapsed in this matter.

18Accordingly, the applicant provided the Chief of Police with his Investigative Report and directed the Chief of Police to apply to the Niagara Police Services Board for permission to serve a Notice of Hearing on Constable Parperides and Staff Sergeant Rogers outside the six-month time limit. The Applicant also gave the Chief of Police submissions in support of the request for an extension of the six-month deadline. The Chief of Police provided those submissions to the Niagara Police Services Board.

19By letter dated February 27, 2015, the Board Chair notified the Chief of Police that the application for an extension had been denied (the Board’s first decision).

20The Applicant successfully moved for judicial review of the Board’s first decision.

21The Divisional Court quashed the Board’s first decision on two bases.

22First, the Board’s decision was quashed because the Court found the decision was arrived at in a procedurally unfair way.

23Specifically, the Board had invited, Parperides and Rogers, to attend the Board meeting considering the extension of time to serve the Notice of Hearing and to make submissions on that question. However, the Board did not provide a similar opportunity to the applicant or Mr. Clark.

24Even though this procedural unfairness was enough to support a decision to quash the Board’s first decision, the Divisional Court also quashed the Board’s first decision because it was unreasonable.

25Specifically, the Court decided, at paragraphs 67-69, that the Board’s conclusion that the applicant was obligated to refer the respondents for disciplinary action before the applicant’s investigation was completed was undermined by the Divisional Court’s decision in Forestall v. Toronto Police Services Board (2007), 2007 31785 (ON SCDC), 72 Admin L. R. (4th) 299. As a result, the Court decided that the Board’s conclusion that the applicant was not entitled to delay referral of Parperides and Rogers for discipline until completion of the investigation of Mr. Clark’s complaint was unreasonable.

26In addition, the Divisional Court found the Board’s decision unreasonable because it failed to consider the causes of the delay as a whole. The Court concluded that it was unreasonable for the Board to selectively focus on the delay between the interviews of the respondents and the applicant’s direction to the Chief of Police to proceed, without considering the ways in which the respondents had delayed matters.

27As indicated, the Divisional Court then quashed the decision finding it unfair and unreasonable. Specifically, the Court made the following statement at paragraph 73:

“For these reasons, the decision of the board is quashed.” [Emphasis added]

28Both grounds were the reasons for deciding to quash Board’s first decision.

29This Court, at paragraph 73 of its first decision, then referred the Chief of Police’s request for an extension of time to serve the Notice of Hearing back to the Board for reconsideration.

The decision under review--- the Board’s Second Decision

[30]

The decision under review--- the Board’s Second Decision

Pursuant to this Court’s first decision the Board did reconsider its decision and again declined to permit a Notice of Hearing to be served on the respondents (the Board’s second decision).

31The Board provided reasons for this conclusion which I will now review.

32When the Board reconsidered the matter, it complied with this Court’s finding that it’s procedure was unfair and ensured that the applicant and Mr. Clark had an opportunity to be heard on the extension of time request.

33When the Board reconsidered the matter, it complied with this Court’s finding that the causes of delay must be considered as a whole. Specifically, the Board made the following introductory statement at page 3 of its second decision:

“In deciding this matter, the Board has considered the causes of the delay as a whole in light of all the circumstances as contemplated by the Divisional Court Decision.”

34The Board then went on to consider the reasons for delay in serving the Notice of Hearing offered by the applicant.

35It rejected the applicant’s submission that the respondents significantly delayed this matter by refusing to be interviewed until a SIU investigation into this same incident was completed.

36Specifically, the Board’s conclusion, after considering the evidence in relation to the timing of the respondents’ interviews, is as follows:

“Given the above, the Board does not feel that there was any significant delay caused by Rogers and Parperides in terms of being interviewed. They were in fact interviewed on June 18th, five weeks after the Director's request, one month before the. SIU concluded its investigation, 10 weeks prior to the expiry of the six-month period and five months prior to the Director's decision. Accordingly, the Board does not accept the Director's submission that delay in interviewing these officers contributed in any significant way to the delay in serving the Notices of Hearing beyond the six-month period referenced in [s]. 83 (17).”

37The Divisional Court’s decision did not make a finding on this except to say that any delay analysis had to consider all the causes of the delay. Accordingly, the Board’s conclusion in its second decision that the delay in interviewing the respondents did not materially contribute to the delay in serving the Notices of Hearing was open to it.

38The Board’s second decision considered a reason which it had identified as a cause of the delay in serving the Notice of Hearing. Specifically, the Board concluded that the applicant did not promptly order the pathologists report.

39The Divisional Court’s first decision did not make a finding on this because the timing of the request for the pathologist’s report was not raised at the first hearing before the Board.

40Indeed, the timing of the request for the pathologist report was only mentioned in passing by counsel for the respondents when the Board reconsidered the matter. Counsel for the applicant was never asked about the delay when the Board reconsidered the matter.

41The Board acknowledged this at page 5 of its reasons as follows:

“This point (the timing of the request for the pathologist report) was not argued at either the hearing or rehearing of this matter but it is apparent to the Board that an earlier request for the pathologist report (and assuming that it still took four months to complete), could and likely would have resulted in a decision on both sets of charges-assault and neglect of duty-within the six month timeframe in section 83 (17)”

42Even though the timing of the request for the report of the pathologist was not argued, the Board, without asking for submissions on the point from counsel for the applicant, placed significant reliance upon this factor at page 5 of its Reasons. It is true that counsel for the applicant had the opportunity to make reply submissions after the timing of the request for the report was mentioned, however, there was no reason for counsel to do so because it was not apparent that delay in ordering the pathologist’s report was a real issue. The discussion of the report was entirely centred on whether the applicant was justified in waiting for the report prior to reporting to the Chief of Police about the respondents. If the Board thought the issue was important, it should have asked for submissions and, if necessary, received evidence on the issue.

43However, it is not necessary to resort to this procedural issue to resolve this application because the way in which the Board dealt with what it described as the “crux of this entire hearing”, namely, whether the applicant was obligated to decide on charging the respondents without waiting for the pathology results, was both incorrect and unreasonable.

44One of the Divisional Court’s reasons for quashing the Board’s first decision was its finding at paragraphs 67-70 concluded that the Forestall decision undermined the Board’s conclusion that the applicant was obligated to refer the matter of Parperides and Rogers for disciplinary action before receiving the pathologist’s report and completing its investigation of Mr. Clark’s complaint. Instead of accepting the Divisional Court’s interpretation and application of the Divisional Court decision in Forestall, the Board purported to distinguish the Forestall decision.

45The Board was bound by the doctrine of stare decisis to accept all the Divisional Court’s reasons for deciding to quash the Board’s first decision.

46It was not necessary for the Court to include a specific direction to the Board ordering acceptance of its interpretation of the Forestall decision because stare decisis requires the Board or any administrative decision maker to follow the findings of a reviewing court that led to its decision. See Régie des rentes v. Canada Bread Co. [2013] 3 S.C.R. 12 at para. 46. In that case, it was only the subsequent enactment of declaratory legislation that allowed the appellant to disregard the Court’s findings in the matter before it.

47Chief Justice McLachlin (Justice Fish concurring) provided a dissenting opinion in Régie des rentes, ultimately disagreeing about the effect of the subsequent enactment of legislation. However, the Court unanimously affirmed that tribunals do not have jurisdiction to reconsider matters that have already been decided by a higher court. At paragraph 50 of her dissent, Chief Justice McLachlin writes,

“In accordance with the rule of law principle, all administrative decision-makers are subject to judicial review by courts of inherent jurisdiction." The function of judicial review is ... to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes" (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 SCR 190 (SCC), at para. 28). An administrative decision-maker does not have the power to second-guess the final judgment of a court of inherent jurisdiction regarding the legality of its decisions. This would in effect undermine the process of judicial review, and threaten the rule of law.”

48The same principle was articulated by Federal Court of Appeal in the case of The Minister of Citizenship and Immigration v Lamine Yansane 2017 FCA 48. Specifically, at paragraph 25 the Court states:

“By referring the case to another immigration officer for re-consideration ‘in accordance with these reasons’ the first judge was not giving instructions… but merely reiterating the well-known principle that an administrative decision maker must comply with the decision of a Superior Court in applying the principle of stare decisis. In fact, it matters little whether the judgement allowing an application for judicial review contains such a statement; it goes without saying that an administrative tribunal to which a case is referred back must always take into account the decision and findings of the reviewing court, unless new facts call for a different analysis.” [Emphasis added]

49See also Peepeekisis Cree Nation No. 81 v Dieter, 2018 FC 411 at para. 27.

50If the Board believed that the Divisional Court’s reasons or findings for deciding to quash its decision were wrong, then its lawful recourse was an appeal and not the substitution of its own findings for the Court’s findings.

51In addition, it was not within the range of possible acceptable outcomes for the Board to substitute its interpretation of a Divisional Court decision for the Divisional Court’s interpretation of that decision.

52In the same vein, the Divisional Court in its reasons at paragraph 70 found and based its decision to quash on its determination that it was unreasonable for the Board to conclude that the applicant was obligated to refer the respondents’ neglect of duty complaint to the Chief of Police before the investigation of Mr. Clark’s complaint was completed.

53The Board’s second decision did not apply this Court’s finding.

54Specifically, the Board concluded, at page 6 of its second decision that the applicant’s decision to wait for the pathologist’s report before dealing with the respondents was “unnecessary and inappropriate”.

55The applicant required the pathologist’s report before it could complete its investigation of Mr. Clark’s complaint.

56For example, the report could have confirmed Mr. Clark’s complaint that he was assaulted by Constables MacLeod or Kroon. It could also have confirmed that Mr. Clark’s brain injury was aggravated by the failure to take him to the hospital immediately. Of course, the pathologist report confirmed neither of these claims, but the applicant could not know that until the pathologist provided her report.

57Because this Court found that it was reasonable for the Applicant to complete its investigation of Mr. Clark’s entire complaint before recommending that the Chief of Police proceed with a disciplinary hearing against the respondents, it was not open to the Board to conclude that the Applicant’s decision to wait for the pathologist’s report was unnecessary and inappropriate.

58The Court’s finding also meant the Board’s conclusion that waiting for the pathologist’s report was unnecessary and inappropriate was not within the range of possible acceptable outcomes.

59It was neither correct nor reasonable for the Board to base its decision upon a finding that was not open to it.

60The Board relied on new evidence submitted by the respondents in the form of two letters to the Chief of the Toronto Police Service in an unrelated case.

61The Board was entitled to consider new evidence provided by the respondents or the applicant because it is always possible that new evidence will support and justify the Board’s conclusion concerning an extension of time.

62However, absent new material evidence that would demand a different analysis, Divisional Court reasons for deciding to quash the Board’s first decision remain binding on the Board, Burton v. Canada (Minister of Citizenship and Immigration), 2014 FC 910, at para. 46.

63The new evidence in this case is not capable of rising to the level of demanding a different analysis.

64The new evidence established that, in an unrelated case, the applicant indicated to the Chief of the Toronto Police that there was enough evidence to proceed with charges against one of the officers involved in the incident under investigation even though the investigation of the others was not completed.

65This new evidence did not demand a different analysis because it is not capable of demonstrating that the applicant’s conventional practice when investigating a complaint is to issue different investigative reports for different officers at different times. In addition, the new evidence does not address the applicant’s decision in this case to wait until the investigation of Mr. Clark’s complaint was completed.

66In considering the new evidence the Board appreciated this distinction because in its reasons on page 6 it states:

“… Mr. Black relies on these letters to establish that, in appropriate circumstances this can be done. Given the different treatment of the two sets of officers in that case, that point seems obvious. The question is whether this case is an appropriate one differentiating between Rogers and Parperides on the one hand and the officers being investigated for assault on the other.”

67Unfortunately, while the Board accurately articulated the question left unanswered by the new evidence, it failed to appreciate that the Divisional Court had already determined that it was not necessary for the applicant to differentiate between the respondents and the officers being investigated for assaulting Mr. Clark and that it (the Board) was bound as a matter of stare decisis by that interpretation unless it concluded that the new material evidence was as such a nature that it demanded a different analysis.

[68]

Disposition

Accordingly, this application is allowed.

69The decision of the Regional Municipality of Niagara Police Services Board is quashed, and the matter is remitted to the Board for reconsideration in light of these reasons and the reasons of the Divisional Court in its first decision.

[70]

Costs

The applicant asked for costs against the Regional Municipality of Niagara Police Services Board on a substantial indemnity basis and conventional costs against the respondents, Parperides and Rogers.

71The applicant maintains that the Board flagrantly disregarded the first Divisional Court decision in this matter.

72The Board, prior to making its second decision, received submissions on effect of the first Divisional Court decision from the parties, considered those submissions before giving its second decision, and explained its conclusions in its second decision. While I am satisfied that the Board’s second decision failed to appreciate that it would be incorrect and unreasonable to reach conclusions which disregarded the reasons why the Divisional Court quashed the Board’s first decision, I am not satisfied that it flagrantly disregarded this Court’s decision in so concluding.

73The respondents Parperides and Rogers were simply defending themselves. There was nothing disrespectful in the matter in which they did that.

74I see no reason to depart from the normal practice of making no order concerning costs. Accordingly, there will be no order for costs.

MARROCCO A.C.J.S.C.

I agree _______________________________

HARVISON YOUNG J.

I agree _______________________________