CITATION: Floria v. Toronto Police Service, 2021 ONSC 842
DIVISIONAL COURT FILE NO.: 197/20 DATE: 20210203
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, McCarthy and Kristjanson JJ.
BETWEEN:
IOAN FLORIA
Lawrence Gridin and Alex Alton, for the Appellant
Appellant
– and –
TORONTO POLICE SERVICE
Alexandra Ciobotaru and Mattison Chinneck, for the Respondent
Respondent
– and –
ONTARIO CIVILIAN POLICE COMMISSION
Intervenor
Matthew Peachey, for the Intervenor
HEARD at Toronto (by videoconference): January 18, 2021
Swinton J.
Overview
[1] The appellant Ioan Floria appeals a decision of the Ontario Civilian Police Commission (the “Commission”) dated August 17, 2020 (reported at 2020 ONCPC 6). The Commission dismissed his appeal from a decision of a Hearing Officer dated April 10, 2017 that found him guilty of four counts of misconduct contrary to the Code of Conduct, O. Reg. 268/10, issued pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). He appealed to the Commission with respect to three of the four findings of misconduct, as well as the penalty decision ordering his dismissal dated June 4, 2018.
[2] The appellant argues that the Commission made numerous errors in upholding the Hearing Officer’s decisions on misconduct and penalty, essentially repeating the arguments he made to the Commission. For the reasons that follow, I would dismiss the appeal.
Background
[3] The disciplinary action arose out of events in 2005 that led to criminal charges against the appellant. At the time, he was a Constable, serving in Traffic Services for the Toronto Police Service (“TPS”). He had been employed for about seven years. A Notice of Hearing alleging professional misconduct was issued by the TPS in November 2007, but the disciplinary proceedings were adjourned sine die pending the outcome of the criminal proceedings.
[4] The appellant was acquitted by a jury in June 2012 following a criminal trial. The disciplinary proceedings then resumed in July 2013. The prosecution proceeded with two counts of discreditable conduct, one count of insubordination, and one count of breach of confidence. On November 11, 2015, the Hearing Officer rejected the appellant’s motion to stay the proceedings on the basis that the delay amounted to an abuse of process.
[5] After a lengthy hearing on the merits that began in April 2016, the Hearing Officer found the appellant guilty on all counts. First, he was found guilty of the first charge of discreditable conduct because he failed to report and suppressed information about an alleged kidnapping of S.T. on November 18, 2005 and failed to provide support to the victim.
[6] S.T. was an acquaintance of the appellant. He and his brother G.T. were involved in the operation of a marijuana grow-op, working for V. S.T. was kidnapped and tortured over the course of two days. He was released when V paid a ransom. Rather than report information about S.T. to the police, the appellant engaged in his own investigation of the allegations. The Hearing Officer found that the appellant had suppressed evidence by failing to report the information he received about the incident. She found that he had a duty to report the crime S.T. had reported to him and to assist S.T. as a victim of crime. His failure to do so would bring discredit on the reputation of the TPS.
[7] Second, the appellant was found guilty of insubordination because he improperly ran 70 licence plates or names through the Canadian Police Information Centre (“CPIC”).
[8] Third, the appellant was found guilty of breach of confidence because he used the computer terminal of another police officer to do a CPIC inquiry. He did so to obtain information about a licence plate that had been provided to him by G.T., the brother of the kidnapping victim S.T. G.T. suspected the vehicle had been used in the kidnapping of S.T. After the CPIC inquiry, the appellant then gave the information he had obtained to G.T., with the result that a person was endangered who was not involved in the events.
[9] Finally, the appellant was found guilty of the second charge of discreditable conduct because he failed to immediately report information about a possible kidnapping in late December 2005. He received a call with the information from an acquaintance A while he was on duty, and he told A to call police. Later the next day, he disclosed the information after he was called in to provide translation assistance to another officer investigating the incident. The Hearing Officer found that the appellant had failed to report and suppressed information that would have mitigated the confinement, torture and sexual assault experienced by the two victims, and that this amounted to discreditable conduct.
[10] The Hearing Officer determined that dismissal was the appropriate penalty for the two discreditable conduct charges and the breach of confidence charge, given the gravity of the misconduct. With respect to the insubordination charge, she imposed a suspension of 30 days.
[11] The appellant appealed to the Commission with respect to the discreditable conduct and breach of confidence findings as well as the penalty of dismissal. He did not appeal the insubordination finding and penalty. His appeal was dismissed.
[12] He now appeals to the Divisional Court pursuant to the legislation in force at the time of his charges pursuant to the transitional provisions found in ss. 98(1) and 98(3) of the PSA (version in force after October 19, 2009). In accordance with the earlier legislation, an appeal may be made on a question that is not a question of fact alone, from a penalty or from any other action taken, or all of them (s. 71(2)).
The Issues on Appeal
[13] The appellant raised several issues, all of which were considered and rejected by the Commission. He argues that the Commission erred in the following ways:
By upholding the Hearing Officer’s decision to permit S.T. to give evidence by video link,
By upholding the Hearing Officer’s admission of the transcript of G.T.’s evidence from the criminal trial,
By upholding the decision finding the appellant guilty of different misconduct than that alleged,
By upholding the finding of breach of confidence,
By upholding the Hearing Officer’s refusal to stay the proceedings on the grounds of abuse of process because of unreasonable delay, and
By upholding dismissal as an appropriate penalty.
Analysis
The Standard of Review
[14] Given Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 appellate standards of review apply in this appeal of the Commission’s decision – notably, correctness on a question of law and palpable and overriding error on questions of fact or mixed fact and law, unless there is an extricable legal question (at para. 37).
[15] While the appellant’s Notice of Appeal raised an issue with respect to the standard of review applied by the Commission to the decisions of the Hearing Officer, that argument was not pursued before the Divisional Court.
1. The Hearing Officer had the power to hear S.T.’s evidence by video link
[16] S.T. and G.T. were described by the Hearing Officer as central witnesses in the proceeding (Ruling on Video Evidence, p. 15, Appeal Book (“AB”) at p. 276). Both men received emergency relocation assistance to move out of Canada after their testimony in the criminal trial due to concerns about their safety. In a ruling dated December 18, 2015, the Hearing Officer held that they could testify via video link, as neither would return to Canada for safety and financial reasons. S.T. subsequently testified for several days via Skype, and he was cross-examined at length by the appellant’s then counsel.
[17] The appellant argues that the Hearing Officer had no authority to permit the video evidence, and the Commission erred in upholding her ruling to that effect. The appellant submits that s. 5.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) permits an electronic hearing only if the tribunal has adopted rules pursuant to s. 25.1 of the SPPA to deal with electronic hearings. At the time the disciplinary proceeding commenced, the rules of procedure applicable to disciplinary tribunals of the TPS did not provide for electronic hearings.
[18] The Hearing Officer held that the applicable rules did not provide for electronic hearings, and that the rules adopted in March 2015 that permitted electronic hearings did not have retrospective effect. That aspect of her ruling has not been appealed.
[19] However, the Hearing Officer relied on s. 15, which states,
Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
She also relied on s. 2 of the SPPA, which provides that the Act shall be liberally construed “to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.”
[20] The Commission upheld the Hearing Officer’s decision, relying on s. 25.0.1 of the SPPA, which provides:
A tribunal has the power to determine its own procedures and practices and may for that purpose,
(a) make orders with respect to the procedures and practices that apply in any particular proceeding; and
(b) establish rules under section 25.1.
[21] The Commission correctly concluded that the Hearing Officer had the power to allow the video evidence of S.T. However, my analysis is different from that of the Commission.
[22] Section 1 of the SPPA defines an “electronic hearing” as “a hearing held by conference telephone or some other form of electronic technology allowing persons to hear one another.” In contrast, an “oral hearing” is defined as “a hearing at which the parties or their representatives attend before the tribunal in person.”
[23] Section 5.1 deals with written hearings, while s. 5.2 deals with electronic hearings. Both require that the tribunal adopt rules before such hearings are permissible.
[24] In my view, the hearing before the Hearing Officer was an oral one, and s. 5.2 does not come into play. The parties and their counsel were present before the Hearing Office throughout the proceeding, as were most witnesses. None of them were participating electronically. Only the witness S.T. gave evidence electronically. As the Hearing Officer said in her ruling allowing both S.T. and G.T. to testify by video (Ruling at p. 20, AB at p. 281):
Essentially, this is an oral hearing wherein two witnesses will provide their evidence through a video link. The remainder of the witnesses will provide viva voce evidence. This decision is of particular application and is specific to the facts of this case and the extreme circumstances of this case.
[25] The appellant relied on Bufalino v. Shukla, 2017 ONSC 987 in support of his argument that the hearing before the Hearing Officer was an electronic hearing. I do not find this case helpful. In Buffalino, the chair of the panel appeared electronically. However, this created no problem, as the board’s rules expressly permitted electronic hearings (at para. 37).
[26] The appellant also argues that s. 5.2 of the SPPA sets out the conditions in which an electronic hearing can be held, and a tribunal cannot invoke a general section such as s. 25.0.1 to confer broader powers to permit electronic hearings. In support, he relies on Stanley v. Office of the Independent Police Review Director, 2020 ONCA 252.
[27] Stanley is distinguishable. It dealt with a tribunal’s power to reconsider and reopen a decision in the absence of rules permitting reconsideration. Section 21.2(1) of the SPPA specifically permits a tribunal to reconsider its decision if it has made rules under s. 25.2 to deal with the matter. As the Office of the Independent Police Review Director (“OPIRD”) had not adopted such rules, the Court of Appeal held that OPIRD did not have the power to reconsider a decision.
[28] It is important to understand the context in Stanley. Under the common law, a tribunal that has reached a final decision is functus officio, subject to certain exceptions (at para. 46). Absent the power granted in s. 21.2(1) of the SPPA, the OPIRD would not have the authority to reopen a decision. Given that there were no rules allowing reconsideration at the time of the decision, the OPIRD had no power to reconsider.
[29] In the present case, s. 5.2 deals with electronic hearings as an alternative to oral hearings. By its terms, s. 5.2 does not prevent a tribunal from hearing the evidence of a witness electronically in a hearing that is otherwise an oral one. As I have said above, the hearing in this matter was an oral one, with the parties, counsel and the tribunal member present in the same room. The fact that S.T. gave his evidence via Skype did not change the nature of the hearing.
[30] The appellant argues that the Hearing Officer had no authority to hear video evidence, unlike the Superior Court in Chandra v. Canadian Broadcasting Corporation, 2015 ONSC 5385. It is true that the Rules of Civil Procedure expressly allow video evidence in civil proceedings. However, Chandra is of no assistance in this case. I agree with the Commission that the Hearing Officer had the power, pursuant to s. 25.0.1 of the SPPA, to control her own procedures and practice, and that section allowed her to accept the evidence of a witness by video.
[31] S.T. was outside Canada and did not wish to return because of safety concerns. The Hearing Officer had no way to compel him to appear. She properly considered whether there was any prejudice to the appellant if S.T. testified by Skype and concluded that there was no denial of procedural fairness. Indeed, the process would allow the appellant to cross-examine S.T., and it would assist her in determining S.T.’s credibility.
[32] I conclude that the Hearing Officer had the power to order S.T.’s evidence be given by video link. Her decision is not in conflict with s. 5.2 of the SPPA, as she was not conducting an electronic hearing. Accordingly, the Commission made no error of law in upholding her ruling that S.T.’s evidence could be given via video link.
2. The admission of G.T.’s transcript did not result in a denial of natural justice
[33] G.T. was an important witness with respect to the breach of confidence charge as well as the charge relating to suppression of information about S.T.’s kidnapping. S.T.’s testimony via Skype was to be followed by G.T.’s. However, their mother died unexpectedly during S.T.’s testimony, with the result that there was some delay. G.T. was concerned about further delay for financial reasons, as the testimony of S.T. was taking longer than expected. The TPS prosecutor was also concerned about added expense, as a police officer had to be present while S.T. and G.T. gave testimony from their home country. Ultimately, the Hearing Officer ruled that the transcript of G.T.’s evidence at the criminal trial was admissible evidence despite the fact that it was hearsay.
[34] The Hearing Officer relied on s. 15(1) of the SPPA, which allows a tribunal to accept hearsay evidence. It states,
Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
(a) any oral testimony; and
(b) any document or other thing,
relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
[35] The appellant concedes that transcript evidence from a criminal trial can be admitted in a subsequent disciplinary hearing. However, he argues that admission of G.T.’s transcript was improper because the use of the transcript denied him natural justice. G.T. was a key witness on the breach of confidence count. The details of that charge formed a very small part of the criminal trial, so any cross-examination by the appellant at trial was not an appropriate substitute for cross-examination in the disciplinary hearing. In addition, there were serious issues with G.T.’s credibility arising from some inconsistent statements and an alleged conspiracy with S.T. to commit perjury which the appellant was not able to put to G.T. on cross-examination.
[36] The Commission concluded that the Hearing Officer implicitly relied on the principle of threshold reliability for the admission of the hearsay evidence. She found that the transcript met that test, as G.T. had testified under oath in the criminal trial, he was cross-examined by the appellant, and there was an official transcript of the evidence. In admitting the evidence, she stated that the truth of that evidence had yet to be determined.
[37] The appellant relied on the case of Gilbert v. Ontario (Provincial Police), 2000 16843 (Ont. C.A.) before the Commission and again before this Court. There, the prosecution in a police discipline case sought to introduce the complainant’s transcript from the preliminary inquiry in an earlier criminal proceeding for sexual assault. The Court of Appeal held that to allow the evidence would result in a denial of natural justice, because of the officer’s inability to cross-examine on a key matter during the criminal proceeding – the complainant’s recovered memory. Therapist notes with respect to her recovered memory had only been obtained after the preliminary inquiry.
[38] In the appeal to this Court, the appellant also relied on B and Catholic Children’s Aid Society of Metropolitan Toronto (1987), 59 O.R. (2d) 417, 1987 4187. There an individual sought to have his name removed from the Child Abuse Register. The hearing officer had allowed a social worker to testify about a child’s complaint of sexual abuse by the individual. The child had subsequently denied that the abuse happened. The Divisional Court held that the admission of the hearsay evidence was a denial of natural justice, given that the complainant could not be cross-examined, although there was no evidence that she was unavailable to testify.
[39] In each of those cases, there was absolutely key evidence on which the party in jeopardy had not had any opportunity to cross-examine. Here there was cross-examination of G.T. at the criminal trial.
[40] The Commission considered the appellant’s argument that he was denied natural justice because the allegations respecting the breach of confidence charge were not extensively dealt with in the cross-examination of G.T. at trial. The Commission concluded that the inability to cross-examine G.T. further in the disciplinary hearing did not amount to a denial of natural justice. In the circumstances of this case, I see no error by the Commission.
3. The Commission did not err in upholding the charges of discreditable conduct
[41] The appellant submits that with respect to Charge #1 (discreditable conduct by suppressing evidence of S.T.’s kidnapping) and Charge #4 (discreditable conduct by suppressing evidence of the second kidnappings), he was originally charged with discreditable conduct by failing to report these matters. Those charges were withdrawn before the disciplinary hearing commenced, and the prosecution proceeded on the more serious allegations that he engaged in discreditable conduct by suppressing evidence. The appellant submits that the Hearing Officer found a failure to report, not suppression of information.
[42] Whether the appellant’s conduct amounted to discreditable conduct is a question of mixed fact and law reviewable on the palpable and overriding error standard. The test for discreditable conduct is whether a dispassionate person, fully apprised of the facts and circumstances and aware of the applicable rules and regulations, would assess the conduct as discreditable.
[43] The Commission noted that the Hearing Officer found that the appellant had a duty to cause an investigation, given the nature of the information and his role as a police officer. The Commission stated (at para. 91):
Working in Traffic Services the appellant did not have a duty to start an investigation, but we agree that he had a duty to alert his supervisors, allow them the opportunity to assess the information and conduct whatever investigation they thought was warranted. Accepting the Hearing Officer’s definition of suppress from the Oxford Dictionary as including to inhibit, the appellant had information that he did not share and he should have done so. Objectively, the public would have expected more of a police officer and the appellant’s failure to meet that expectation would bring discredit to the reputation of the service.
[44] The appellant has not demonstrated any error of law or any palpable and overriding error of fact, and so this ground of appeal must fail.
4. The Hearing Officer’s finding of breach of confidence was reasonable
[45] The appellant disputes the Hearing Officer’s finding on the breach of confidence charge relating to whether he gave the results of a CPIC licence search to G.T. He submits that the inference that he must have given the results to G.T. was not the only rational inference arising from the evidence. He argues that there was no evidence that he was the one who ran the search and gave the information to G.T., but rather that the Hearing Officer relied on speculation and filled evidentiary gaps to conclude that it must have been him.
[46] The Hearing Officer properly applied the law regarding circumstantial evidence. She reasonably found that there was no common-sense link between G.T. and the officer whose computer was used for the licence check. She also found G.T.’s testimony was credible on this issue. On the balance of the evidence, the Hearing Officer rejected the appellant’s explanations.
[47] I would not give effect to this ground of appeal. The appellant has failed to demonstrate any error of law or palpable and overriding error of fact by the Hearing Officer or the Commission.
5. The Hearing Officer did not err in refusing to stay the proceedings for delay
[48] The Supreme Court held in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 that an inordinate delay in an administrative proceeding may amount to an abuse of process, such that the proceeding should be stayed (at para. 121). However, the Court emphasized that a lengthy or inordinate delay alone is not sufficient. Rather, the delay must result in significant prejudice to the party seeking a remedy. He or she must show significant prejudice to the fairness of the hearing, impairing the ability to defend (at para. 102). Alternatively, the party must show that the delay has caused significant psychological or reputational harm. At para. 115, the majority stated:
The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute.
[49] The Court also emphasized that the determination of inordinate delay is contextual, stating at para. 122:
The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community’s sense of fairness would be offended by the delay.
[50] I agree with the Commission’s conclusion upholding the Hearing Officer’s ruling on abuse of process. The Hearing Officer carefully examined the length of the delay and the reasons for it, as the Commission observed. However, I note that the Commission seems to focus only on the analysis of the length of the delay by the Hearing Officer (at paras. 31-33).
[51] In administrative law, the length of the delay is not the only consideration in determining whether there has been an abuse of process. The tribunal must also consider the prejudice from the delay to determine whether the continuation of the proceeding is an abuse of process. While the Commission recognized the need for evidence of real and significant prejudice arising from the delay when it set out the test in Blencoe (Reasons, para. 27), it fails to examine this aspect of the test when it considers the Hearing Officer’s reasons, focusing on her analysis of the delay.
[52] The Hearing Officer did consider the evidence of prejudice put forth by the appellant. She discussed his evidence that his memory was impaired, and he had suffered embarrassment, stress and hardship (AB at pp. 248-49). However, she concluded that the appellant had not met the high test to warrant a stay of proceedings. For example, she stated that “[t]here were dormant periods, but they were not so egregious as to offend the community’s sense of fairness” (Ruling at p. 24, AB at p. 249).
[53] I see no error in her conclusion. Her findings of fact deserve deference. The appellant failed to put forth evidence before the Hearing Officer to show that his ability to defend the case was seriously impaired, and the record before this Court does not show significant prejudice arose during the hearing. While counsel argued that one witness, A, could not testify about the fourth count because of dementia, the parties entered an agreed statement of facts as to his evidence.
[54] Moreover, the record does not show significant prejudice to the reputation or mental health such that the administration of the disciplinary process is called into disrepute. The Hearing Officer made no error in rejecting the abuse of process motion, and the Commission correctly upheld her decision on this issue.
6. The Commission did not err in upholding the penalty of dismissal
[55] The appellant argues that the penalty was too severe, and an appropriate penalty would be a demotion or a short suspension. Alternatively, he argues that he should have been given an opportunity to resign, so that he would retain the financial benefit of his sick leave bank.
[56] The Commission correctly observed that the Hearing Officer considered the relevant factors to be weighed in determining the penalty. The Commission stated that the first charge of discreditable conduct was sufficiently serious that it justified dismissal, for the reasons given by the Hearing Officer in her decisions on the merits and on penalty (at para. 100). As well, the Commission held that the Hearing Officer was entitled to consider the misconduct cumulatively and also consider the suspension imposed for insubordination.
[57] The appellant engaged in very serious misconduct. As the Hearing Officer observed (at p. 40 of the penalty decision, AB at p. 203),
I do not find that Constable Floria can be rehabilitated to the point where he can continue to be an asset to his employer and the community as a police officer. His repeated misconduct has overshadowed any degree of mitigation and his integrity and honesty have been lost and cannot be restored.
She also described his conduct as “egregious and reprehensible” (penalty decision at p. 54, AB at p. 217).
[58] I see no error of law or principle in the decision of the Commission to uphold the penalty of dismissal. The decision to dismiss was reasonable and appropriate in the circumstances.
Conclusion
[59] Accordingly, the appeal is dismissed. The parties are agreed that there will be no order of costs.
___________________________ Swinton J.
I agree
McCarthy J.
I agree
Kristjanson J.
Date of Release: February 3, 2021
CITATION: Floria v. Toronto Police Service, 2021 ONSC 842
DIVISIONAL COURT FILE NO.: 197/20 DATE: 20210203
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, McCarthy and Kristjanson JJ.
BETWEEN:
IOAN FLORIA
Appellant
– and –
TORONTO POLICE SERVICE
Respondent
– and –
ONTARIO CIVILIAN POLICE COMMISSION
Intervenor
REASONS FOR JUDGMENT
Swinton J.
Date of Release: February 3, 2021