CITATION: D’Arthenay v. Ontario Provincial Police, 2024 ONSC 4773
DIVISIONAL COURT FILE NO.: DC-23-00001401-00JR
DATE: 20240910
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fitzpatrick, O’Brien, and Cullin JJ
BETWEEN:
Courtney D’Arthenay Applicant
– and –
Ontario Provincial Police and Commissioner of the Ontario Provincial Police Respondents
– and –
Canadian Civil Liberties Association and P.C. Jaimee McBain Interveners
J. Safayeni and O. Eng, Counsel for the Applicant
J. Tam, Counsel for the Respondents
W. McDowell and A. Jarvis, Counsel for the Canadian Civil Liberties Association
J. Gervin, Counsel for Jaimee McBain
HEARD in Oshawa: June 25, 2024
O’BRIEN J.
reasons for DECISION
Overview
[1] The central issue on this application is whether the chief of police was required to provide reasons for a decision that police misconduct was “not of a serious nature” where the police misconduct involved an accident that caused a civilian death.
[2] Late at night on September 29, 2020, while crossing Highway 12 near Midland, Tyler Dorzyk was struck and killed by an Ontario Provincial Police (the OPP) vehicle driven by Provincial Constable Jaimee McBain. P.C. McBain was on a coffee run for a colleague. Mr. Dorzyk’s common-law spouse, the applicant, filed a complaint with the Office of the Independent Police Review Director (the OIPRD). The applicant complained about the conduct of both P.C. McBain and another officer, Sergeant Amy Thompson, who attended at the scene shortly after the incident.
[3] The OIPRD concluded both P.C. McBain and Sgt. Thompson had engaged in discreditable conduct. It found P.C. McBain did not operate her vehicle in a safe manner. Given the rainy weather, road conditions and lighting, she should have been more cognizant of her speed and of the surroundings. The OIPRD found Sgt. Thompson made comments that were insensitive and lacked impartiality when she arrived on the scene. In response to the accusation that P.C. McBain was at fault for the collision, Sgt. Thompson commented on how the civilian witness who had been with Mr. Dorzyk was dressed. She specifically noted that he was wearing a garbage bag, with the implication that he and Mr. Dorzyk had contributed to the accident because they had been difficult to see.
[4] Under the Police Services Act, R.S.O. 1990, c. P.15 (the PSA), where the OIPRD determines there are reasonable grounds to believe the conduct of the police officer under investigation constitutes misconduct, it is required to refer the matter to the chief of police, in this case, the Commissioner of the OPP. The chief of police shall then hold a hearing unless they are of the opinion the misconduct was “not of a serious nature.” In that situation, the chief of police may resolve the matter informally without holding a hearing by following certain steps as further set out in the legislation. One of those steps is a requirement that the chief of police seek the complainant’s consent to the proposed resolution of the complaint.
[5] Here, the letter from the OPP (on behalf of the chief of police) concluded the misconduct of both police officers was “not of a serious nature” and that the matter could be determined informally without a hearing. The letter listed the factors generally considered to determine seriousness but did not state which factors were important in the circumstances of this case or how the factors had been applied. The letter concluded the misconduct could be managed without a formal disciplinary hearing. After the OPP filed its record of proceeding in this application, the applicant learned that the OPP required both officers to receive non-disciplinary counselling. The OPP never sought the complainant’s consent to this outcome.
[6] The applicant submits the OPP decision was unreasonable. In her submission, the decision was not justified because, while it listed factors generally considered in determining seriousness, it failed to identify which factors were considered important in the complaints about the two officers. The decision also treated the two officers identically without explanation. With respect to P.C. McBain, the applicant submits the only reasonable outcome was a determination that her misconduct was serious.
[7] The OPP submits the decision was reasonable. It says this was a “gate-keeping” decision in the context of a matter between an employer and an employee and that the complainant’s rights are minimal in the process. It also submits that the record makes apparent the OPP’s explanation for finding the conduct was not serious. It denies that the only possible, acceptable outcome regarding P.C. McBain was that her conduct was serious. The OPP also submits that any remedies that would expose the officers to potential discipline on the same issues already addressed by the non-disciplinary counselling would be contrary to the principles of fairness and finality.
[8] For the reasons that follow, I agree with the applicant that the decision of the OPP was unreasonable in failing to justify why the conduct of P.C. McBain was not serious. Given the difference in the conduct of the two officers, it also was unreasonable not to address the officers separately in the decision. I do not agree that the only reasonable outcome regarding P.C. McBain was that her conduct was serious. Therefore, the decision is remitted to the OPP for a fresh decision addressing the misconduct of both officers.
Preliminary Issue: Delay in Filing Application
[9] In its written argument, the OPP submitted the applicant should not be granted an extension of time to file her application for judicial review. The applicant filed the application after the 30 days required by s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the JRPA). The OPP rightly did not pursue this position in oral argument. The applicant’s explanation for the delay was persuasive. She delayed because she believed, based on communications from the OPP, that she should raise her concerns with the OIPRD. She demonstrated that it was always her intention to challenge the decision. Once she was aware that her recourse was judicial review, she acted promptly. Her application also has substantial merit as discussed below. An extension of time is therefore granted under s. 5(2) of the JRPA.
Standard of Review
[10] There is no dispute that the standard of review of the OPP’s decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23. With respect to questions of procedural fairness, the court will apply the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 22-27.
Was the decision reasonable?
[11] The applicant submits written reasons were required to justify why the conduct of the officers was “not serious” and the reasons provided did not justify the conclusion. The OPP does not expressly dispute that written reasons were required in the determination of whether the officers’ misconduct was serious. But it submits the reasons provided met its obligations since the complainant had minimal procedural rights and the explanation for why the misconduct was not serious was apparent in the record.
A. Written reasons were required
[12] In my view, the complainant’s procedural rights in the circumstances of this case were not as low as the OPP has suggested. In coming to the conclusion that reasons providing proper justification were required, three considerations from the factors set out in Baker are particularly important.
[13] First, unlike some decisions in investigative processes that may have minimal bearing on a complainant’s rights, the decision at issue here affected the complainant’s rights directly. Where the OIPRD concludes an officer has committed misconduct, it is required to refer the matter to the chief of police: PSA, s. 68(3). Pursuant to s. 68(5), the chief of police is then required to hold a hearing into the matter, unless the chief of police is of the opinion the misconduct was “not of a serious nature.” In a hearing under the PSA, the complainant has party status and is accorded the full slate of participatory rights: PSA, s. 83(3); Challans v. Timms-Fryer, 2017 ONSC 1300 (Div. Ct.), at paras. 16-18.
[14] By contrast, where the chief of police concludes the matter is not of a serious nature, according to s. 68(6), “the chief of police may resolve the matter informally without holding a hearing if the police officer and the complainant consent to the proposed resolution.” If the complainant does not consent to the proposed resolution, the chief of police may nonetheless proceed with the resolution by following a procedure that gives the police officer but not the complainant further procedural rights: PSA, s. 68(7).
[15] In other words, the determination that misconduct is not of a serious nature limits the complainant’s procedural rights from full party status in a quasi-judicial hearing to an informal resolution procedure in which the complainant’s consent must be sought but is not required. For this reason, this court stated in Green v. Toronto Police Service, 2016 ONSC 6433, at para. 8 that “[c]haracterizing possible misconduct as being ‘not of a serious nature’ is significant.”
[16] Second, transparency and accountability are important in the statutory scheme. The public has a strong interest in holding police accountable for potential misconduct. As part of this, the PSA includes provisions for independent oversight of police action. This court has described the PSA as having “transparency and public accountability as its fundamental purpose”: Figueras v. York (Police Services Board), 2013 ONSC 7419 (Div. Ct.), [2013] O.J. No. 5911, at para. 43, and as having a complaints system “intended to be transparent and accessible, in order to promote public confidence in police and policing”: Nobody v. Ontario (Civilian Police Commission), 2016 ONSC 7261 (Div. Ct.), 20 Admin. L.R. (6th) 170, at para. 14. Reasons are particularly helpful in a decision the misconduct was not serious because s. 71 of the PSA allows a complainant to ask the OIPRD to review such a decision.
[17] Third, a complainant has a legitimate expectation of receiving reasons justifying why conduct is not “of a serious nature” when the officer’s conduct caused a civilian death. It will not be readily apparent to many members of the public how police misconduct causing death is not considered serious. At a minimum, there is a legitimate expectation in having this explained.
[18] The facts of this case underscore that expectation. According to the OIPRD report, GPS records showed P.C. McBain was travelling at a speed between 72 km/h and 97 km/h where the posted speed limit was 60 km/h. This rate of speed was of particular concern because the environmental conditions were poor. The incident occurred just after midnight, so it was dark. It was raining, the roads were wet, and the intersection was poorly lit. The OIPRD analysis highlighted that P.C. McBain was in a marked police cruiser and speeding. She was not responding to a call for service but instead was returning from a trip to Tim Hortons to buy a coffee for a colleague. The report also noted the heightened public expectations of the conduct of police officers when driving given that they are often among the first to respond to motor vehicle collisions caused by distracted driving and speeding.
[19] Subsection 68(4) of the PSA specifically requires the Director to state if they are of the opinion the conduct was not serious. It provides:
68(4) If the Independent Police Review Director is of the opinion that the conduct of the police officer constitutes misconduct or unsatisfactory work performance that is not of a serious nature, he or she, in referring the matter to the chief of police under subsection (3), shall so indicate.
[20] Here, the OIPRD did not state the conduct was not serious. It instead expressly left that question open for the OPP to decide. In the letter sent to the OPP with its report, the OIPRD stated “you are required to hold a hearing into this matter unless you are of the opinion that the misconduct is not of a serious nature.”
[21] Overall, the nature of P.C. McBain’s misconduct in this case together with the OIPRD’s refusal to conclude it was not serious raised a legitimate expectation that reasons would be provided for the OPP decision.
[22] The analysis above should not be taken to mean written reasons are necessarily required in every case the chief of police finds the misconduct was not serious. In Green, this court found the reasons could be gleaned from the analysis in the OIPRD report. But in that case, the OIPRD had expressly concluded the conduct was not of a serious nature and the chief of police agreed. That case also involved a strip search and did not involve conduct that caused a death.
[23] A.Z. v. Office of the Independent Police Review Director, 2023 ONSC 6365 is also distinguishable. There, this court stated at para. 50 that there was no requirement to provide reasons for the finding that misconduct was not serious. That case did not involve a death. It also did not involve a report from the OIPRD, since the OIPRD referred the matter to the relevant police service to conduct the investigation. The chief of police therefore relied on the report from his own police service. That police service did not have a statutory obligation like the one in s. 68(4) to indicate if they reached an opinion that the misconduct was not of a serious nature. The chief of police in A.Z. could more easily rely on the conclusions in the report than in the current case where the OIPRD expressly left the question of seriousness for the OPP to decide.
[24] For these reasons, the OPP was obligated to provide reasons explaining why P.C. McBain’s conduct was not serious. I also conclude reasons were required to address Sgt. Thompson’s misconduct. I do not need to determine whether the conduct of Sgt. Thompson on its own would require reasons to be provided. While her misconduct did not cause a civilian death and was not as serious as the misconduct of P.C. McBain, reasons were required on the specific facts of this case because there was a death caused by her colleague, her conduct arose from the same incident, and the two officers were the subject of the same complaint. These circumstances were sufficient to raise a reasonable expectation that reasons would be provided.
B. The reasons provided did not justify why the misconduct was not serious
[25] I agree with the applicant that the OPP’s decision did not provide sufficient justification for its conclusions and was therefore unreasonable. Vavilov states at para. 96 that where reasons contain a “fundamental gap” or are based on an unreasonable chain of analysis, the reviewing court should not disregard the flawed basis for the decision and substitute its own justification for the outcome: see also Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, at para. 101. As the Supreme Court of Canada has emphasized: “[I]t is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons…”: Vavilov, at para. 86 (emphasis in original); Mason, at para. 59.
[26] Here, the OPP issued a single paragraph explaining why the misconduct of both officers was not serious, despite the very different conduct of the two officers. After concluding the misconduct was not of a serious nature, the decision provided a list of generic factors to be considered in determinations of seriousness:
In cases of substantiated misconduct, I consider many mitigating and aggravating factors to determine seriousness. These factors may include, but are not limited to: the public interest, intentions of the officer, consistency of dispositions, acknowledgement/remorse of the officer, any personal gain on behalf of the officer, a lack of understanding, the consequences/impact of the misconduct, employment history, deceit/dishonesty, duration of misconduct (single incident or protracted over time), rank and where the behaviour falls on the spectrum of misconduct. This does not in any way minimize the issue you have brought to our attention, but I feel this conduct can be managed without the necessity of holding a formal disciplinary hearing.
[27] There is no way to know from this paragraph which factors were considered important in this case. With respect to P.C. McBain, there is no recognition of or explanation for why other factors outweighed the fatal consequences of her misconduct. The identical treatment accorded to P.C. McBain and Sgt. Thompson despite their respective misconduct being so different underscores the absence of justification for the decision.
[28] I do not accept the OPP’s submission that the reasons can be supplemented by a review of the record in this case. The OIPRD report highlighted the aggravating factors described above, including that P.C. McBain was speeding when she ought to have been taking extra caution in the poor environmental conditions. With respect to Sgt. Thompson’s conduct, the OIPRD found her comments inappropriate, lacked impartiality, and were such that a reasonable person would believe she was shifting blame to the witness and the victim. Moreover, it is not obvious how the factors listed in the OPP decision apply to either officer.
[29] The OPP submits the court may also look to the reports of the Special Investigations Unit (SIU) and the Professional Standards Unit (PSU). The SIU investigated the incident because it involved a police officer and a civilian death. The PSU conducted an internal investigation into the officers’ conduct. The OPP relies on the SIU’s conclusion that no criminal charges should be laid, nor should any provincial charges be laid pursuant to the Highway Traffic Act. It also relies on the PSU’s conclusion that the conduct of both officers should be dealt with by less formal means such as performance management.
[30] In my view, the record provides material that could be used to support either conclusion about seriousness. Although the SIU concluded no criminal charges should be laid, it also stated that there were reasonable grounds to believe P.C. McBain operated her vehicle “in a dangerous fashion” and the question of whether P.C. McBain transgressed the limits of care prescribed by criminal law was “close to the line.”
[31] The PSU report found the measured excess speed did not meet the requirement for misconduct and was best suited to be dealt with by performance management. It also found there was no evidence Sgt. Thompson made any effort to detract from the SIU’s position as lead investigator. This report was less thorough than that of the OIPRD and did not involve interviewing witnesses nor the same level of detailed analysis.
[32] Most importantly, the OIPRD reviewed all this material, found misconduct, and did not advise it considered the conduct “not of a serious nature” as it would have been statutorily obligated to do had it reached that conclusion. Instead, it left the question open for the OPP to decide. In these circumstances, the OPP was bound to identify why the misconduct was not serious. This was not an onerous requirement. The reasons did not need to be long, but they needed to explain why, on the OPP’s application of the relevant factors, the conduct was not of a serious nature.
C. There was not only one reasonable outcome
[33] The applicant submits the decision is also unreasonable because there was only one reasonable outcome regarding P.C. McBain, which is that the misconduct was serious. I disagree. While it was important for the OPP to justify its conclusion and particularly to explain why conduct causing a fatality was considered “not of a serious nature”, it was also incumbent on the OPP to weigh all the relevant factors. The fatality itself was enormously serious, but that does not compel a finding that the misconduct itself was serious in all the circumstances: see Green, at paras. 17-19. It is the role of the OPP to weigh all the relevant circumstances and reach a justified and transparent conclusion on that question.
What is the appropriate remedy?
[34] Given my conclusions above, the matter must be remitted to the OPP for a fresh decision in which the OPP provides reasons addressing its conclusions regarding both officers’ misconduct.
[35] If the OPP concludes with justified reasons the misconduct of either officer was “not of a serious nature” it also will also be required to seek the consent of the complainant to the proposed resolutions. This is specifically required by s. 68(6) of the PSA and was not done in this case. Subsection 68(6) provides that if the chief of police is of the opinion the misconduct was not of a serious nature, the chief may resolve the matter informally without a hearing “if the police officer and the complainant consent to the proposed resolution” (emphasis added).
[36] I do not consider the requirement to seek consent an unimportant formality. I recognize that s. 68(7) read together with s. 66(10) allows the chief of police to impose a penalty or take action without the complainant’s consent. But the consequence of a “not serious” finding is that the complainant loses the procedural rights she would have had were the matter referred to a hearing. The requirement to seek her consent is a remaining minimum procedural protection that gives her the opportunity to provide input regarding the resolution. It cannot be ignored.
[37] I reject the OPP’s submission that it would be contrary to principles of fairness and finality to expose the officers to potential discipline for the same misconduct already addressed through non-disciplinary counselling. The principle the OPP relies on arises from labour law. It is intended to prevent employers from imposing discipline twice – for example, if the employer acts precipitously and then imposes further or different discipline after a more thorough investigation: See, for example, Trillium Health Partners v. Canadian Union of Public Employees, Local 5180, 2021 ONSC 1045 (Div. Ct.), 457 D.L.R. (4th) 171, at para. 35. That principle cannot be read as a basis to preclude a reviewing court from remitting a matter to a disciplinary body when it has quashed a decision. It is of course appropriate for the decision-maker to consider any penalty previously served when determining any new penalty.
Disposition
[38] Therefore, the OPP decision is quashed. The matter is remitted to the OPP for fresh decisions regarding the misconduct of both officers. In accordance with the agreement of the parties, the respondents shall pay the applicant costs in the amount of $30,000 all-inclusive.
_______________________________ O’Brien J.
I agree _______________________________
Fitzpatrick J.
I agree _______________________________
Cullin J.
Released: September 10, 2024
CITATION: D’Arthenay v. Ontario Provincial Police, 2024 ONSC 4773
DIVISIONAL COURT FILE NO.: DC-23-00001401-00JR
DATE: 20240910
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Fitzpatrick, O’Brien, and Cullin JJ
BETWEEN:
Courtney D’Arthenay
Applicant
– and –
Ontario Provincial Police and Commissioner of the Ontario Provincial Police
Respondents
– and –
Canadian Civil Liberties Association and P.C. Jaimee McBain
Interveners
REASONS FOR DECISION
O’BRIEN, J.
Released: September 10, 2024