CITATION: Canadian Broadcasting Corporation v. Ferrier, 2019 ONSC 34

DIVISIONAL COURT FILE NO.: DC-18-018-JR

DATE: 20190107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

WARKENTIN R.S.J., AITKEN and MULLIGAN JJ.

BETWEEN:

Canadian Broadcasting Corporation

Applicant

– and –

Lee Ferrier, Q.C., Exercising Powers and Duties of the Thunder Bay Police Services Board

Respondent

COUNSEL:

R. Gilliland, for the Applicant

D. Migicovsky, for the Respondent, Lee Ferrier, Exercising Powers and Duties of the Thunder Bay Police Services Board

J. Falconer and K. Ordyniec, for First Nation Public Complainants

H.A. Walbourne, for Chief of Police of the Thunder Bay Police Service

J.C.H. Iu and P. Stephenson Welch, for Independent Police Review Director

J.E. Mulcahy, for the Respondent Officers

HEARD at Thunder Bay: December 6, 2018

AITKEN J.:

Introduction

[1] The Canadian Broadcasting Corporation (“CBC”) brings an application for judicial review of a decision of the respondent, Lee Ferrier, Q.C., Exercising Powers and Duties of the Thunder Bay Police Services Board (“Ferrier”), dated September 20, 2018, (the “Decision”). In the Decision, Ferrier ruled that the application for an extension of time in which to serve a notice of disciplinary hearing on the Respondent Officers under s. 83(17) of the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), would be determined in camera.

[2] The CBC and the First Nation Public Complainants (the “Complainants”) take the position that Mr. Ferrier made an error in law in finding that the Dagenais/Mentuck[^1] line of cases dealing with the presumption of openness in judicial proceedings did not apply to a determination of an extension of time application under s. 83(17) of the PSA. The CBC and the Complainants argue that, pursuant to both common law principles and s. 35(3) of the PSA, any hearing held to determine an extension application is presumptively open to the public. Ferrier had discretion under s. 35(4) of the PSA to exclude the public, but he could only do so after applying the Dagenais/Mentuck test. His failure to apply this test resulted in an error in law.

[3] The Respondent Officers and the Chief of Police of the Thunder Bay Police Service (“TBPS”) take the position that Mr. Ferrier made no error of law and acted reasonably when deciding that the extension application should be determined in camera. The Independent Police Review Director (the “IPRD”) and Ferrier take no position on the application for judicial review, but participated in the proceedings to provide background, factual information, and context.

Standing and Party Status

[4] The CBC has standing to bring this application for judicial review on the basis of its representing “the public” and the public’s interest in upholding freedom of expression under s. 2(b) of the Charter[^2] (Dagenais, at para. 40; Toronto Star Newspapers Ltd. v. Ontario (2003), 67 O.R. (3d) 577 (C.A.), at paras. 13-15; and Judicial Review Procedure Act, R.S.O. 1990, c. J. 1, ss. 1 and 2(2)).

[5] The initial parties on this application for judicial review were the CBC and Ferrier. In her judgment regarding the CBC’s application for a temporary injunction enjoining Ferrier from holding an in camera proceeding to decide the extension application until the CBC’s application for judicial review could be heard, Pierce J. granted “intervenor status as a party” to the IPRD, the Complainants, the TBPS, and the Respondent Officers (Canadian Broadcasting Corporation v. Thunder Bay Police Services Board, 2018 ONSC 5872 (Div. Ct.), at para. 7). The parties who were granted intervenor status seek to be named as respondents, and not mere intervenors, to the application for judicial review. This is appropriate for the following reasons.

[6] The IPRD, the Complainants, the TBPS, and the Respondent Officers made submissions to Ferrier as to whether the extension application should be determined in camera. It is generally understood under the Judicial Review Procedure Act that all persons who participated in the administrative hearing under review should be named as respondents (Nobody v. Ontario (Civilian Police Commission), 2016 ONSC 5824, at paras. 27-30, and the authorities cited therein).

[7] There can be no doubt that the interests of the Complainants and the Respondent Officers may be impacted by Ferrier’s decision regarding the extension application and, for this reason, they should be parties to the judicial review application. As well, under s. 83(3) of the PSA, a member of the public who complains about the conduct of a police officer, and the police officer in question, are parties to disciplinary hearings under the PSA. (See also Figueiras v. (York) Police Services Board, 2013 ONSC 7419, 317 O.A.C. 179 (Div. Ct.), at para. 42; and Office of the Independent Police Review Director v. Regional Municipality of Niagara Police Services Board, 2016 ONSC 5280 (Div. Ct.) (“Niagara Police Services Board, 2016”), at paras. 41-42.)

[8] The TBPS also has an interest in Ferrier’s decision regarding the extension application because that decision will determine whether the TBPS Chief of Police will hold disciplinary proceedings against the Respondent Officers. Whether Ferrier conducts any hearing relating to the extension application in public or in camera could impact not only the Respondent Officers but also other officers of the TBPS. That decision could also impact the public’s perception of the TBPS.

[9] In regard to the IPRD, as explained in detail by Dambrot J. in Nobody, at paras. 40-53, the presence of the IPRD is necessary to ensure a full understanding of the role played by the IPRD respecting public complaints against police officers. That role includes not only the receipt and investigation of the public’s allegations of police misconduct against police officers in Ontario, but also general oversight responsibility as to how those complaints are ultimately dealt with by the Chief of Police who has authority over the officers in question. (See also Niagara Police Services Board, 2016, at para. 45.)

[10] Furthermore, and more specifically, in regard to the determination of the extension application, the key consideration is the reasonableness of the time taken by the IPRD to investigate the complaints against the Respondent Officers. Clearly, the IPRD has an interest in how that determination is made (Niagara Police Services Board, 2016, at paras. 46-47; and Figueiras v. (York) Police Services Board (May 22, 2013), Toronto, 568/12 (Div. Ct.), per Swinton J.).

[11] Thus, the IPRD, the Complainants, the TBPS, and the Respondent Officers shall all be respondents in these proceedings.

Factual Background

[12] On March 18, 2016, the IPRD received complaints from Brad DeBungee and Chief Jim Leonard (the “Complainants”) relating to the TBPS’s investigation of the death of Stacy DeBungee, whose body was discovered in the McIntyre River on the morning of October 19, 2015. Within hours, the TBPS advised that the death was not suspicious. The Complainants asked the IPRD to investigate allegations of misconduct against specific officers implicated in the investigation. The Complainants also asked the IPRD to conduct a systemic review into the relationship between the TBPS and the First Nations peoples it is meant to serve.

[13] On April 22, 2016, the IPRD decided to undertake its own investigation into the TBPS’s handling of the inquiry into Stacy DeBungee’s death. This is referred to as the day on which the complaint was retained by the IPRD under ss. 61(5)(c) and 83(18)(a)(ii) of the PSA. As well, on November 3, 2016, the IPRD announced the terms of reference for a systemic review into the TBPS’s policing of First Nations peoples.

[14] On February 15, 2018, the IPRD issued an investigative report (the “Report”) in which it found that there was sufficient evidence to believe, on reasonable grounds, that the Respondent Officers had committed misconduct of a serious nature in their investigation of Stacy DeBungee’s death. The Report was provided to the Complainants and to the TBPS. Given that more than six months had elapsed since the day on which the IPRD retained the investigation of the complaints, the IPRD directed the Chief of Police of the TBPS to bring an extension application to the Thunder Bay Police Services Board (the “Board”) under s. 83(17) of the PSA, seeking approval to serve a notice of hearing on the Respondent Officers. Absent the Board’s permission, no disciplinary action could be taken against the Respondent Officers under the PSA relating to the concerns raised by the Complainants and shared by the IPRD.

[15] The Board was originally scheduled to deal with the extension application on April 6, 2018. Prior to that date, the Board determined that, in view of the nature of the complaints and in the face of the outstanding and separate IPRD review of the relationship between the TBPS and the First Nations community in Thunder Bay, it was likely that having the Board decide the extension application would give rise to a reasonable apprehension of bias.

[16] On July 25, 2018, the Board’s application requesting the appointment of a “disinterested person” under s. 16 of the Public Officers Act, R.S.O. 1990, c. P. 45, to hear the extension application in place of the Board, resulted in the Superior Court of Justice appointing Ferrier to exercise the powers and duties of the Board under s. 83(17) of the PSA.

[17] On July 27, 2018, Ferrier sought the views of the parties as to whether the anticipated hearing of the extension application on September 21, 2018 should be in camera in view of the wording of ss. 35(3) and (4) of the PSA. He referred to an earlier conference call in which he had been advised that the general practice in Ontario was for any hearings regarding extension applications to be conducted in camera. Subsequently, counsel for the TBPS, the IPRD, and the Respondent Officers advised Ferrier of their agreement that the hearing be held in camera. Counsel for the Complainants advised that his clients were not in agreement.

[18] In a conference call on August 1, 2018, Ferrier provided counsel with a timeline for written submissions on the issue of whether the September 21, 2018 hearing should be held in camera. The Complainants, the TBPS, and the Respondent Officers filed written submissions; the IPRD declined to do so. On September 16, 2018, after having received notice from the Complainants’ counsel that the extension hearing in this matter likely would be held in camera, the CBC advised Ferrier of its interest in being heard on this issue. Ferrier afforded the CBC the opportunity of making written submissions in this regard, and the CBC did so prior to the deadline of September 19, 2018 given by Ferrier.

[19] On September 20, 2018, at 9:07 a.m., Ferrier released his decision that the extension application would be heard in camera. Later the same day, at the CBC’s request, Ferrier adjourned the hearing of the extension application scheduled for the following day to allow the CBC sufficient time to seek a stay of the hearing while it brought an application for judicial review of Ferrier’s Decision. As has already been mentioned, Pierce J. granted the stay on October 4, 2018 (Canadian Broadcasting Corporation v. Thunder Bay Police Services Board).

Legislative Framework

[20] Before considering the decision of Ferrier, it is important to review the legislative framework under the PSA. The following sections relate to the issue in question:

Proceedings open to the public

35 (3) Meetings and hearings conducted by the board shall be open to the public, subject to subsection (4), and notice of them shall be published in the manner that the board determines.

Exception

(4) The board may exclude the public from all or part of a meeting or hearing if it is of the opinion that,

(a) matters involving public security may be disclosed and, having regard to the circumstances, the desirability of avoiding their disclosure in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public; or

(b) intimate financial or personal matters or other matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public.

Rules and procedures

37 A board shall establish its own rules and procedures in performing its duties under this Act and, except when conducting a hearing under subsection 65 (9), the Statutory Powers Procedure Act does not apply to a board.

Review of Systemic Issues

57 In addition to his or her other functions under this Act, the Independent Police Review Director may examine and review issues of a systemic nature that are the subject of, or that give rise to, complaints made by members of the public under this part and may make recommendations respecting such issues to the Solicitor General, the Attorney General, chiefs of police, boards, or any other person or body.

Six-month limitation period, exception

83 (17) If six months have elapsed since the day described in subsection (18), no notice of hearing shall be served unless the board, in the case of a municipal police officer, or the Commissioner, in the case of a member of the Ontario Provincial Police, is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.

(18) The day referred to in subsection (17) is,

(a) in the case of a hearing in respect of a complaint made under this Part by a member of the public about the conduct of a police officer other than a chief of police or deputy chief of police,

(ii) the day on which the complaint was retained by the Independent Police Review Director under clause 61(5)(c); …

Employment record

85 (9) The chief of police or board, as the case may be, may cause an entry concerning the matter, the action taken and the reply of the chief of police, deputy chief of police or other police officer against whom the action is taken, to be made in his or her employment record, but no reference to the allegations of the complaint or the hearing shall be made in the employment record, and the matter shall not be taken into account for any purpose relating to his or her employment unless,

(a) misconduct as defined in section 80 or unsatisfactory work performance is proved on clear and convincing evidence; …

Confidentiality

95 Every person engaged in the administration of this Part shall preserve secrecy with respect to all information obtained in the course of his or her duties under this Part and shall not communicate such information to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations;

(b) to his or her counsel;

(c) as may be required for law enforcement purposes; or

(d) with the consent of the person, if any, to whom the information relates.

[21] In regard to statutory interpretation, the Supreme Court of Canada has been clear that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting Elmer Driedger, Construction of Statutes, 2nd ed, (Toronto: Butterworths, 1983), at p. 87).

Decision of Ferrier

[22] After considering the written submissions of the parties, Ferrier decided that the extension application would be determined in camera. He reasoned as follows:

• Forestall v. Toronto Police Services Board, [2007] O.J. No. 3059 (Div. Ct.) is a leading authority on the nature of extension applications under s. 83(17) of the PSA. Forestall stands for the proposition that the determination of an extension application is an administrative or procedural function; it is not a judicial or quasi-judicial function. The Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 does not apply to such a determination under s. 83(17) of the PSA. Although some degree of procedural fairness is required due to the importance of the decision, particularly for the officers under scrutiny, no oral hearing is necessarily required.
• Part V of the PSA dealing with complaints and disciplinary proceedings in regard to police officers is essentially dealing with employment-related matters. Such matters fall within the category of “intimate … personal matters” referred to in s. 35(4)(b) of the PSA (Toronto Police Services Board, Order MO-1186, Feb. 2, 1999 (ON IPC) and Ottawa Police Services Board, Order M-380, Aug. 26, 1994 (ON IPC)). Although meetings and hearings conducted by police boards shall be open to the public under s. 35(3) of the PSA, this is subject to the exceptions stipulated in s. 35(4) of the PSA which gives a police board the discretion to exclude the public from all or part of a meeting or hearing if it is of the opinion that intimate personal matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding their disclosure in the interest of any person affected (such as the Respondent Officers) outweighs the desirability of adhering to the principle that proceedings be open to the public.
• The Statutory Power Procedures Act does not apply to a hearing or board meeting during which an extension application is decided (PSA, s. 37).
• A police board shall establish its own rules and procedures in performing its duties under the PSA (PSA, s. 37).
• The Report of the IPRD referred to 33 witnesses including the Complainants, the Respondent Officers, other officers initially identified as responding officers, other officer witnesses, and other civilian witnesses. Publication of the Report could taint the evidence of witnesses, render ineffective an order excluding witnesses, and impact on the efficacy of cross-examinations. Officers initially identified as responding officers but against whom the IPRD had not authorized disciplinary proceedings, might suffer unfairly from the stigma attached with their conduct having been investigated by the IPRD. If the Report were made public but the extension application denied, the Respondent Officers would be left with a negative stigma attaching to them.
• An extension application precedes the commencement of proceedings. It is part of the investigative or pre-charge stage – not part of the subsequent proceedings. In analogous situations, investigative or pre-charge processes are not open to the public.
• “The Dagenais/Mentuck line of cases has no application to a board meeting where specific statutory provisions apply, where the Board is not a Court, there is not a judicial or quasi-judicial proceeding and the Board is performing an administrative act.”

Issue

[23] The only issue advanced on this application for judicial review is whether the Decision of Ferrier should be quashed due to his making an error of law by not applying the Dagenais/Mentuck test to the question of whether the extension application should be heard in camera.

[24] The Supreme Court of Canada articulated the Dagenais/Mentuck test as follows in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 26:

The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be entered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

Social Context

[25] It is important to consider the social context in which this issue arose. Most significantly, there is a very high level of distrust between the First Nations community and the TBPS, with many Indigenous peoples in the Thunder Bay area believing that the policing practices relating to them are racist.

[26] The Report of the IPRD regarding the TBPS’s investigation into Stacy DeBungee’s death was scathing in its criticism of the TBPS. Some of the observations within the Report included the following:

• “there was no basis to affirmatively rule out foul play based on observations made at the scene or event after the autopsy examination”
• “the deficiencies in the investigation were so substantial – and deviated so significantly from what was required as to provide reasonable and probable grounds to support an allegation of neglect of duty”
• “the evidence is clear that an evidence-based proper investigation never took place into [Stacy DeBungee’s] sudden death”

[27] Despite being advised that the Report was confidential, the Complainants shared the Report within the First Nations community and with the media. The Report could only have had the effect of reinforcing concerns about systemic racism within the TBPS.

[28] When the IPRD issued its Report, two other, separate, inquiries concerning systemic racism in policing in Thunder Bay were in progress. The IPRD was inquiring into allegations of systemic racism within the TBPS relating to its treatment of the Indigenous population. At the same time, Senator Murray Sinclair, on behalf of the Ontario Civilian Police Commission, was conducting a parallel inquiry into how the Board was exercising its oversight responsibilities in regard to the TBPS, particularly in regard to the TBPS’s treatment of the Indigenous peoples of Thunder Bay. As of September 20, 2018, the reports emanating from these separate systemic inquiries had not yet been issued. They have subsequently been released.

[29] The public, and particularly the First Nations community in Thunder Bay, has a strong interest in the circumstances surrounding the death of Stacy DeBungee and in the TBPS’s investigation of his death. There is a strong public interest in seeing that, if police misconduct is found in regard to that investigation, those responsible for that misconduct are held to account. There can be no question that Ferrier was well aware of the high degree of public interest in the outcome of the extension application hearing at the time he determined that the hearing would be held in camera.

[30] The CBC and the Complainants argue that the presence of such a high degree of public interest in the determination of the extension application under s. 83(17) of the PSA required the highest level of transparency in regard to each step in the disciplinary process against the Respondent Officers. According to the CBC and the Complainants, this should have led Ferrier, after applying the Dagenais/Mentuck test, to the inescapable conclusion that the hearing had to be open to the public.

[31] Pierce J., when granting a stay of Ferrier’s Decision so that this judicial review application could be brought, expressed the same sentiment (Canadian Broadcasting Corporation v. Thunder Bay Police Services Board, at paras. 48-49):

In my view, on the facts of this case, it is important for the court to consider the extent to which the public can expect openness in administrative decision-making. Because of the complaint underlying this process – that policing practices related to Indigenous citizens in Thunder Bay are racist – it is even more critical that every step in the complaint procedure be dealt with transparently.

Each step of the complaint process is a step on the way towards resolution to which transparency must attach if the process is to be credible to the community. Failing to proceed openly will only sow distrust in the complaints procedure. It will do nothing to address the community’s question about whether Thunder Bay’s approach to policing indigenous matters is racist.

[32] In her decision on the stay application, Pierce J. identified the question underpinning this case as being whether there has been systemic racism in policing of Indigenous peoples. The CBC and the Complainants, in their facta, identified the same underlying question. While there is no doubt that the overarching issue to be dealt with in regard to the policing of the Indigenous population of Thunder Bay is whether the TBPS has shown, and continues to show, racist attitudes and practices toward Indigenous peoples, that is not the specific issue Ferrier needs to address in determining the extension application. The focus of his analysis will be the reasonableness of the delay of more than two years between the IPRD’s retention of the DeBungee complaint and the issuance of a notice of disciplinary hearing to the Respondent officers. No doubt allegations regarding racism will be considered peripherally at the extension application hearing; however, such allegations will not be the prime focus of the hearing. The extent to which racism rears its ugly head in policing in Thunder Bay is the focus of the two separate reports, one by the IPRD and one by Senator Murray Sinclair, issued after the hearing of this judicial review application.

[33] One must not lose sight of the reality that the extension application is being determined in the context of possible disciplinary proceedings against employees. Ferrier did not err in situating the issue before him in that context, despite the high level of public interest in the outcome of any such disciplinary proceedings. We reject the submissions of the CBC and the Complainants that the level of public interest in this matter should mandate what legal test should be applied in the circumstances. We reject the argument that the level of public interest changes the nature of the decision-making process or the nature of the role being undertaken by Ferrier.

Standard of Review

Parties’ Positions

[34] The CBC and the Complainants argue that Ferrier’s determination that the Dagenais/Mentuck line of cases does not apply to the hearing of the extension application is reviewable on a standard of correctness because it raises constitutional issues. They argue that, assuming Ferrier applied the correct test in considering the issue, his application of the test to the matter at hand is subject to review on a standard of reasonableness.

[35] The TBPS and the Respondent Officers argue that Ferrier, in exercising the powers and duties of the Board, was interpreting the Board’s home statute and was performing a purely administrative or procedural function. His determination of the test to apply and his application of that test are both subject to review on a standard of reasonableness and are entitled to deference. (See McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paras. 21 and 38; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at paras. 22 and 33; and Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 40, regarding the deference to be afforded to tribunals interpreting their home statutes that are closely connected to their functions and that are very familiar to them.)

[36] Neither Ferrier, nor the IPRD, takes a position on the appropriate standard of review applicable to Ferrier’s Decision or the applicability of the Dagenais/Mentuck test to s. 83(17) extension applications.

Analysis

[37] In our view, for the reasons that follow, Ferrier’s Decision is reviewable on a standard of reasonableness. This result is consistent with the following direction in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54:

Deference will usually result where a tribunal is interpreting its own statute or statues, closely connected to its function, with which it will have a particular familiarity. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general, common law or civil law rule in relation to a specific statutory context.

[38] In Dunsmuir, at para. 62, the Supreme Court directed that reviewing courts should first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question before conducting their own review of relevant factors. That jurisprudence already exists relating to the function undertaken by the Board in deciding an extension application.

[39] There is ample case law standing for the proposition that the function being undertaken by a police board, or in this case by Ferrier exercising the powers and duties of the Board, when determining an extension application under s. 83(17) of the PSA, is administrative and procedural in nature. It is a screening function focused in part on the nature, breadth, length, complexity, and efficiency of the investigation undertaken by the IPRD. The function is not judicial or quasi-judicial. (See Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div. Ct.); Payne v. Peel (Regional Municipality) Police Services Board (2003), 168 O.A.C. 69(Div. Ct.); Forestall v. Toronto Police Services Board (2007), 228 O.A.C. 202 (Div. Ct.); Ackerman v. Ontario Provincial Police, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.); and Figueiras v. (York) Police Services Board, 2013 ONSC 7419 (Div. Ct.) (“Figueiras 2”).

[40] There is jurisprudence to the effect that the standard of review applicable to a police board’s decision in regard to an extension application is reasonableness. (See Figueiras 2, at para. 28; Niagara Police Services Board, 2016, at para. 62; Office of the Independent Police Review Direction v. Regional Municipality of Niagara Police Services Board, 2018 ONSC 4966 (Div. Ct.), at paras. 43, 51, and 59; and Bennett v. Toronto (Metropolitan Police Services Board, [1995] O.J. No. 4816 (Div. Ct.), at para. 2.)

[41] That this is the applicable standard of review is supported by the Supreme Court of Canada’s decision in Doré c. Québec (Tribunal des professions), 2012 SCC 12, [2012] 1 S.C.R. 395. In Doré, a lawyer appealed the decision of a disciplinary body reprimanding him for conduct determined to be contrary to the Code of ethics of advocates applicable to lawyers in the province of Québec and to be contrary to his oath of office. Applying the Dunsmuir principles, Abella J., at para. 24, concluded that reasonableness remained the applicable review standard for disciplinary panels. She observed that, in rendering their decisions, such tribunals have an expertise in connection with their home statutes that enables them to fully take into account the factual framework, context, and policy considerations alive in the case being considered.

[42] In Doré, Abella J. characterized the decision of the Disciplinary Council of the Barreau du Québec when reprimanding one of its members as an “adjudicated administrative decision” (para. 3). Thus, the decision in Doré, although administrative in nature, involved an adjudication of rights and obligations. The decision to be made by Ferrier in regard to an extension under s. 83(17) of the PSA involves no adjudication of rights as it does not consider the merits of the case.

[43] If Ferrier is of the opinion that, in the circumstances of this case, the delay in serving the notice of disciplinary hearing on the Respondent Officers was reasonable, then disciplinary proceedings will commence and employment consequences may follow for those officers following the disciplinary hearing. If Ferrier is of the opinion that the delay was unreasonable, then the Complainants’ complaint comes to an end, subject to their right to seek judicial review of that decision.

[44] There is no question that the decision regarding an extension is an important one for the Complainants and for the Responding Officers. It impacts the interest of the Complainants to have the Responding Officers disciplined for their alleged misconduct. That being said, it must be noted that the substantive right that the Complainants have under the PSA is to have their complaint considered by the IPRD in accordance with the provisions of ss. 59-61 of the PSA (Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 319 O.A.C. 324). The Complainants have no right to any particular remedy flowing from the investigation undertaken by the IPRD. As stated by the Supreme Court of Canada in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 54:

The police disciplinary hearing is part of the process through which the officers’ employer decides whether to impose employment-related discipline on them. By making the complainant a party, the PSA promotes transparency and public accountability. However, this process provides no remedy or costs for the complainant. A civil action, on the other hand, provides a forum in which a party that has suffered a wrong may obtain compensation for that wrong.

[45] The significance of a tribunal’s decision being non-adjudicative or preliminary and performed at a pre-hearing, investigative, or screening stage has been considered high in the determination of the appropriate standard of review.

[46] In Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267, 331 O.A.C. 201 (Div. Ct.), the Divisional Court determined that a decision of the Inquiries, Complaints and Report Committee (the “ICRC”) of the College of Nurses requiring a nurse to submit to a physical or mental examination as part of an inquiry into the nurse’s capacity to practice, was reviewable on a standard of reasonableness. The ICRC was not an adjudicative body. It was not subject to the Statutory Powers Procedure Act. The ICRC did not hold “in person” hearings, assess credibility, or make findings of fact. It was an investigative and screening body whose role was to determine whether the matter should be referred to the Fitness to Practice Committee. Its role has some similarities to that of a police board under s. 83(17) of the PSA considering whether, in all the circumstances, the time period in which to serve a notice of hearing should be extended.

[47] Similarly, in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), the Supreme Court of Canada described the function of the Nova Scotia Human Rights Commission in deciding whether to appoint a board of inquiry as one of screening and administration, not one of adjudication on the merits. The Supreme Court reiterated the normal practice that discretionary decisions of this nature by administrative tribunals are normally subject to judicial review on a reasonableness standard (paras. 23 and 27).

[48] Placing reliance on the Dagenais/Mentuck line of cases, counsel for the CBC and the Complainants argue that, because the Charter value of freedom of expression is implicated if proceedings are held in camera, Ferrier’s Decision is reviewable on a standard of correctness. We reject this submission.

[49] The Dagenais/Mentuck line of cases all deal with judicial or quasi-judicial proceedings. (See Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 22-31; and Toronto Star Newspapers Ltd., at paras. 4, 5, 7, 8, and 30.) That is not what we are dealing with here. We are dealing with preliminary matters in a process concerning disciplinary action within an employment context. No case law was cited to the effect that s. 2(b) of the Charter dealing with freedom of expression is implicated when employers are investigating or deciding on a course of action to deal with allegations of wrongdoing on the part of their employees. In other words, the “open court” principle espoused in the Dagenais/Mentuck line of cases is applicable to a different category of decision-making than that to be engaged in by Ferrier under s. 83(17) of the PSA. (See Toronto Star v. AG Ontario, 2018 ONSC 2586, 142 O.R. (3d) 266, at paras. 40, and 61-63; and In the Matter of Application Brought by the Toronto Star and the Criminal Lawyers’ Association, a decision of the Ontario Judicial Council, dated October 14, 2015, at para. 129, where this point was fully articulated.)

[50] In Doré, when considering whether the presence of Charter issues should make the standard of review one of correctness instead of reasonableness, Abella J. stated: “administrative decision-makers must act consistently with the values underlying the grant of discretion, including Charter values …” (para. 24). Abella J. concluded that even when a court is reviewing a disciplinary body’s application of Charter protections in the exercise of its discretion, the standard of review is reasonableness (para. 45). She further stated that: “[e]ven when Charter values are involved, the administrative decision-maker will generally be in the best position to consider the impact of the relevant Charter values on the specific facts of the case” (para. 54). Her conclusion in Doré was: “[n]ormally, if a discretionary administrative decision is made by an adjudicator within his or her mandate, that decision is judicially reviewed for its reasonableness” (para. 3).

[51] If reasonableness is the standard of review when a court is judicially reviewing an adjudicated administrative decision where Charter values are implicated, it must also be the appropriate standard of review where the court is assessing how a decision-maker, exercising a non-adjudicative administrative function, has dealt with Charter values.

[52] Furthermore, it is to be noted that ss. 35(3) and (4) of the PSA set out a statutory scheme as to how a police board, or in this case Ferrier acting as the Board, is to tackle the question of whether any particular board meeting or hearing is to be open to the public. Section 35(3) sets out the general rule that meetings and hearings of a police board shall be open to the public, subject to the discretion of the board to exclude the public from all or part of a meeting or hearing in two potential situations. Pursuant to s. 35(4)(b), one of those situations is if the board is of the opinion that intimate … personal matters may be disclosed of such a nature, having regard to the circumstances:

that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public.

[53] This is the balancing exercise to be done by a police board or, in this case, Ferrier, when deciding whether a board meeting or hearing should be open to the public or held in camera. There is no need for any reference to the Dagenais/Mentuck line of cases when the PSA statutory scheme, itself, sets out the balancing act to be undertaken and there is no ambiguity in the legislative provisions. As Iacobucci J. stated in Bell ExpressVu Ltd., at para. 62:

[T]o the extent this Court has recognized a “Charter values” interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.

See also R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 18; R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, at paras. 87-91; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 78-83; and Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673, at para. 20.

[54] In deciding that the extension application would be heard in camera, Ferrier was exercising the discretion given to a police board under its home statute both to establish its own rules and procedures under s. 37 consistent with its mandate under the PSA, and, more specifically, to exercise the discretion granted to it under s. 35(4) of the PSA to hold an in camera meeting or hearing. In exercising that discretion, Ferrier was required to consider the facts and to take into account policy considerations about which a police board is presumed to have a good understanding through its specialized knowledge and experience. These are all hallmarks suggesting a “reasonableness” standard of review.

[55] In Episcopal Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry, 2007 ONCA 20, 219 O.A.C. 129, the Court of Appeal considered the appropriate standard of review to be used by the Divisional Court when considering the decision of the Commissioner appointed under the Public Inquiries Act, R.S.O. 1990, c. P. 41 (the “PIA 1990”)[^3] to refuse to order a publication ban regarding the name of an individual implicated in the inquiry. Section 4(b) of the PIA 1990 Act read:

4. All hearings on an inquiry are open to the public except where the commission conducting the inquiry is of the opinion that,

(b) intimate financial or personal matters or other matters may be disclosed at the hearing that are of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public

in which case the commission may hold the hearing concerning any such matters in the absence of the public.

The wording of this section is virtually identical to that of s. 35(4)(b) of the PSA. As well, like a police board under the PSA, the Commission had the statutory authority to regulate its own procedures. Pursuant to that authority, the Commission had issued a rule of practice and procedure reiterating its discretion to conduct hearings in private and to issue orders like publication bans in certain circumstances.

[56] The CBC and the Complainants point to the fact that, in Episcopal, Sharpe J.A. found that the Dagenais/Mentuck test was the correct legal test for the Commissioner to apply under s. 4(b) of the PIA 1990 (Episcopal, at paras. 40 and 50). There are four points that, in our view, limit the significance of this finding:

• Episcopal at the Ontario Court of Appeal was decided five years prior to Doré at the Supreme Court of Canada. Doré is the leading authority on the issue of the appropriate standard of review of discretionary administrative decisions made by an adjudicator within his mandate. It determined the standard of review to be reasonableness.
• All of the parties, aside from the Cornwall Police, took the position that the Dagenais/Mentuck test applied to the determination to be made by the Commissioner in the Episcopal case. The Cornwall Police submitted that, since the Commissioner’s authority to issue a publication ban arose under the specific wording of the PIA 1990, the Commissioner was obliged to engage in a balancing exercise very similar, if not identical, to that mandated by the Dagenais/Mentuck test (para. 32). Thus, the correct legal test for the Commissioner to apply in Episcopal was not really in issue.
• The purpose of the public inquiry in Episcopal was very different from the extension application hearing in this case – despite the overall community context having some similarities. The purpose of the public inquiry in Episcopal was “to clear the air of allegations of conspiracy and cover-up and to ‘encourage community healing and reconciliation’” (Episcopal, at para. 43. See also paras. 46-49). The purpose of the extension application hearing in this case is to determine whether allegations of police misconduct against the Respondent Officers will proceed to a disciplinary hearing under the PSA. Interestingly, s. 9.1 of the PIA 1990 attempted to ensure that employees would be sheltered from any adverse employment consequences arising out of their involvement in a public inquiry, again signaling the very real difference in focus of a public inquiry under the PIA 1990 and disciplinary proceedings under the PSA.
• Courts have held that the Dagenais/Mentuck line of cases apply to judicial and quasi-judicial matters. The public inquiry in Episcopal was, at the very least, a quasi-judicial procedure involving witnesses being compelled to give evidence under oath or affirmation, the production of documentation specified by the Commission, and procedures akin to those seen in a courtroom. By contrast, an extension application hearing under s. 83(17) of the PSA is an administrative, procedural matter that does not rise to the level of judicial or quasi-judicial decision-making.

[57] Assuming no disagreement about the test to be applied by the Commissioner in exercising his discretion to grant or refuse a publication ban (Episcopal, at paras. 32 and 38), Sharpe J.A. went on to find that a discretionary balancing exercise of the nature set out in s. 4(b) of the PIA 1990 attracts the deferential standard of review of “reasonableness” (Episcopal, at paras. 30, 35, 37, and 50).

Application of the Reasonableness Standard of Review

[58] As stated in Dunsmuir, at paras. 47-49:

Reasonableness is a deferential standard … Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it 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.

[D]eference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.

In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

[59] The question to be asked is whether there was a reasonable basis in law and on the record before Ferrier for him to conclude that the extension application should be heard in camera. (See Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), at para. 17.) Put another way by Sharpe J.A. in Episcopal, at para. 37, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55:

[J]udicial review should succeed “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived” and that if “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”.

[60] In the Decision, Ferrier, at para. 31, found that: “[t]he Dagenais/Mentuck line of cases have no application to a board meeting where specific statutory provisions apply, where the Board is not a Court, there is not a judicial or quasi-judicial proceeding and the Board is performing an administrative act”. For the reasons set out above, we find that not only is this conclusion reasonable but it is also correct.

[61] The decision-making process undertaken by Ferrier was transparent. Before rendering a decision under ss. 34(3) and (4) of the PSA, Ferrier invited oral input from the parties and, when it was clear that the parties were not in agreement regarding this preliminary procedural matter, he gave all parties, including the CBC, the opportunity to submit written submissions relating to the issue. Ferrier’s nine-page decision shows that he considered the parties’ submissions prior to rendering the Decision.

[62] The reasons Ferrier provided in the Decision were clear, concise, and intelligible.

[63] As outlined in paragraph 22 above, Ferrier provided justification for his exercise of discretion to hear the extension application in camera. He reviewed the statutory framework set out in the PSA and relevant jurisprudence dealing with complaints and disciplinary proceedings under Part V of that legislation. He summarized the circumstances in which the issue had arisen and the essential nature of the proceedings – namely disciplinary proceedings in an employment context. Ferrier provided several reasons why, in his opinion, the dangers inherent in making an extension application hearing open to the public overrode any benefit that would flow from doing so. He came to this conclusion in the context of his having already decided that he would hold a hearing on the matter and would receive both oral and written submissions from all interested parties. Thus, Ferrier was already providing a level of openness and transparency that he was not obliged to do under the PSA.

[64] Ferrier reviewed the potential impact of an open hearing on the reputation and privacy interests of the Respondent Officers and of the other police officers who had been under scrutiny but whose conduct was not ultimately identified as being worthy of disciplinary action. In doing so, Ferrier was cognizant of the fact that, not only the Board, but other police boards across Ontario, since 1992, have been conducting board meetings or hearings, in which extension applications are decided under s. 83(17) of the PSA[^4] in camera. This regular practice of police boards, including the Board in Thunder Bay, established legitimate expectations on the part of the Respondent Officers, and other implicated officers, as to how misconduct allegations would be processed. This impacted the duty of fairness owed to the Respondent Officers. This was one circumstance that Ferrier was asked to take into account.[^5] (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 26.)

[65] It is clear from the Decision that Ferrier gave considerable thought to the important public interest in seeing that any police misconduct resulted in appropriate disciplinary action. He was concerned that any disciplinary hearing that might result from a successful extension application not be prejudiced through the tainting of witnesses or the undermining of cross-examinations. In this regard, not only did Ferrier have the public interest in mind, but also he was mindful of the Complainants’ interest in seeing justice done. The closing lines of the Decision make that abundantly clear:

I also wish to say to the complainants and to the indigenous community which are closely watching this proceeding that it is critical to maintain the integrity of the proceedings in case the Extension is granted.

That concern is at the heart of this decision.

[66] Ferrier was aware that the Complainants had been provided a copy of the Report pursuant to s. 68 of the PSA and that the Complainants had been specifically advised that: “… all information contained in the report of investigation is confidential and shall not be communicated to any other person without the consent of the person(s) to whom the information relates, nor is the confidential information contained in the report of investigation admissible in a civil proceeding pursuant to sections 26.1(11) and 83(8) of the Police Services Act”.[^6] Ferrier noted that, despite this instruction, the Complainants’ counsel had made the Report public. Ferrier concluded that this was not a reason to open the extension application hearing to the public. In his view, to do so would permit a party to defeat the effect of s. 35(4) of the PSA. This line of reasoning was open to Ferrier.

[67] Ultimately, Ferrier’s decision to hold the extension application hearing in camera was a reasonable outcome of his balancing the considerations under s. 35(4)(b) of the PSA when that section is considered within the overall scheme of the PSA and, more particularly, within Part V of the legislation.

Disposition

[68] The application for judicial review is dismissed. As no party is seeking costs, none are awarded.

___________________________ AITKEN J.

I agree WARKENTIN R.S.J.

I agree MULLIGAN J.

Date of Release: January 7, 2019

CITATION: Canadian Broadcasting Corporation v. Ferrier, 2019 ONSC 34

DIVISIONAL COURT FILE NO.: DC-18-018-JR

DATE: 20190107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

WARKENTIN R.S.J., AITKEN and MULLIGAN JJ.

BETWEEN:

CANADIAN BROADCASTING CORPORATION

-and-

LEE FERRIER, Q.C., EXERCISING POWERS AND DUTIES OF THE THUNDER BAY POLICE SERVICES BOARD

REASONS FOR JUDGMENT

AITKEN J.

Date of Release: January 7, 2019

[^1]: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. [^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^3]: The PIA 1990 was repealed on June 1, 2011. [^4]: Record of Proceedings, p. 13. [^5]: Record of Proceedings, p. 82. [^6]: Responding Record of the Respondent Officers, p. 44.