CITATION: Zarabi-Majd v. Toronto Police Service, 2025 ONSC 277
DIVISIONAL COURT FILE NO.: 271/24
DATE: 20250114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McGee, Davies, Shore JJ.
BETWEEN:
Firouzeh Zarabi-Majd
Applicant
– and –
Toronto Police Service
Respondent
– and –
Ontario Civilian Police Commission
Respondent
Melanie Webb, for the Applicant
Noah Schachter, for the Toronto Police Service
Olivia Filetti and Morgana Kellythorne, for the Ontario Civilian Police Commission
HEARD at Toronto: November 18, 2024
By the Court
1. Overview
[1] Firouzeh Zarabi-Majd was a police officer with the Toronto Police Service (TPS). In October 2019, Ms. Zarabi-Majd went on medical leave because she was experiencing post-traumatic stress disorder. While on leave, Ms. Zarabi-Majd was charged with seven counts of discreditable conduct and four counts of insubordination under the Police Services Act.
[2] In terms of the discreditable conduct charges, it was alleged that Ms. Zarabi-Majd used her personal Twitter account to make inappropriate, false, abusive, obscene and libelous comments about the Chief of the TPS, other TPS Officers and members of the TPS Board. Ms. Zarabi-Majd was ordered to stop posting messages about several TPS Officers. It was alleged that Ms. Zarabi-Majd failed to comply with that order. It was also alleged that Ms. Zarabi-Majd harassed an officer in an effort to convince that officer to testify at a criminal trial.
[3] In terms of the insubordination charges, it was alleged that Ms. Zarabi-Majd failed to comply with several orders to attend the Professional Standards Branch of the TPS to be interviewed as part of two internal investigations. It was also alleged that Ms. Zarabi-Majd failed to comply with orders to attend before the TPS Disciplinary Tribunal in response to her charges.
[4] Ms. Zarabi-Majd’s discipline hearing was scheduled for three days starting November 1, 2022. Several months before the hearing, Ms. Zarabi-Majd brought two adjournment applications. Ms. Zarabi-Majd took the position that, because of her post-traumatic stress disorder, she was too sick to attend. On both occasions she asked that the hearing be adjourned sine die (i.e. indefinitely). The Hearing Officer denied both adjournment requests. The Hearing Officer accepted that Ms. Zarabi-Majd had post-traumatic stress disorder but found that her illness did not restrict her from participating in the hearing.
[5] Ms. Zarabi-Majd did not attend the discipline hearing and it proceeded in her absence. Ms. Zarabi-Majd was found guilty of four counts of discreditable conduct and four counts of insubordination, and was dismissed from the TPS.
[6] Ms. Zarabi-Majd appealed the findings of misconduct and the penalty to the Ontario Civilian Police Commission. Her appeal was dismissed on April 4, 2024.
[7] Ms. Zarabi-Majd now seeks judicial review of the Commission’s decision. She raises the following four grounds:
i. The Commission’s decision that the Hearing Officer did not breach her right to be accommodated was unreasonable;
ii. The Commission erred in upholding the Hearing Officer’s decision because the discipline hearing was procedurally unfair;
iii. The Commission erred in finding that the right to security of the person and the right to equality were not engaged in this case; and
iv. The Commission failed to properly balance all the relevant Charter values.
[8] We would not give effect to any of these grounds of appeal.
B. Duty to Accommodate
[9] Administrative tribunals have an obligation under the Ontario Human Rights Code to accommodate a party’s disability-related needs. However, the fact that a party has a disability is not enough to trigger the duty to accommodate: Murphy v. Ontario (Environment), 2018 HRTO 1715 at para. 37. Before that duty arises, there must also be a finding that the party’s ability to access the service of the administrative tribunal will be adversely affected by their disability: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. In other words, it is the impact of Ms. Zarabi-Majd’s disability on her ability to participate in the hearing that is the relevant consideration in terms of whether the Tribunal either had a duty to accommodate her or breached that duty.
[10] There was no dispute that Ms. Zarabi-Majd had post-traumatic stress disorder. There was, however, a dispute over whether Ms. Zarabi-Majd’s illness impacted her ability to participate in the discipline hearing. Ms. Zarabi-Majd took the position she was unable to participate in the hearing because of her post-traumatic stress disorder and that an indefinite adjournment was the only reasonable accommodation for her disability. The Hearing Officer rejected that argument. The Hearing Officer made a factual finding that Ms. Zarabi-Majd’s illness did not restrict her from participating in the hearing. The Hearing Officer found that Ms. Zarabi-Majd was using her illness as an excuse to avoid being held accountable for her conduct.
[11] Ms. Zarabi-Majd does not challenge the Hearing Officer’s factual findings on this judicial review application. Nor does she challenge the Commission’s decision to uphold the adjournment rulings. Rather, she argues that, having found that she had post-traumatic stress disorder, the Hearing Officer failed to provide her with other adequate accommodations such as granting an adjournment for a specific length of time or allowing her to respond to written questions instead of giving viva voce evidence at the hearing.
[12] We do not accept Ms. Zarabi-Majd’s argument.
[13] After dismissing Ms. Zarabi-Majd’s request for an indefinite adjournment, the Hearing Officer tried to engage Ms. Zarabi-Majd in a discussion about other possible accommodations. On October 1, 2022 – a month before the discipline hearing was scheduled to start – the Hearing Officer wrote the following to Ms. Zarabi-Majd’s counsel:
There are many options we can explore to ensure Constable Zarabi-Majd's needs are met. For example, would she prefer to participate virtually or in person? Would she like a hybrid approach to this option, i.e., half virtual / half in person? If in person, would she prefer we utilize a tribunal room outside a Toronto Police Service facility? Does the start time of 0900hr need to be adjusted? Would she like me to adjust the tribunal hours to afternoons or evenings? Would she like us to build a schedule which indicates breaks per every hour or two? Would she prefer to see participating police officers in civilian attire as opposed to uniform? With respect to providing evidence, Constable Zarabi-Majd can achieve this through her representative, as she has done to date - or perhaps there is another idea in this regard I have not considered. These are just a few options that come to mind. It is certainly not an exhaustive list, but it should give you some idea as to the flexibility the tribunal has.
The Hearing Officer suggested scheduling a case conference to discuss what accommodations would be suitable.
[14] Ms. Zarabi-Majd did not respond to the Hearing Officer’s October 1, 2022 email.
[15] The Hearing Officer sent a second message to Ms. Zarabi-Majd’s counsel on October 14, 2022 and said, “I remain open to discuss accommodation needs/requests required by Cst. Zarabi-Majd.”
[16] On October 21, 2022, Ms. Zarabi-Majd’s counsel responded by saying, “Constable Zarabi-Majd remains completely unable to participate in the hearing as set out in her medical documentation. The required accommodation is an adjournment, which she understands has been denied.”
[17] Ms. Zarabi-Majd now argues that the accommodations proposed by the Hearing Officer were not responsive to her needs. However, Ms. Zarabi-Majd did not propose other accommodations. She never requested a shorter adjournment. She never asked to be permitted to give her evidence in writing rather than viva voce. Nor did Ms. Zarabi-Majd accept the invitation to discuss other options. In the end, Ms. Zarabi-Majd simply chose not to attend the hearing and it proceeded in her absence.
[18] The process of devising appropriate accommodations for a health-related disability must be collaborative: Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362 at paras. 35–36, Rodgers v. Lowest Rates Inc, 2023 HRTO 468 at paras. 51–52. The person seeking accommodation must participate in the process of finding appropriate accommodations and has an obligation to accept reasonable accommodations offered: Central Okanagan School District No. 23 v. Renaud, 1992 81 (SCC), [1992] 2 S.C.R. 970 at 994-995. To the extent the Hearing Officer had an obligation to accommodate Ms. Zarabi-Majd even though her illness did not prevent her from participating in the hearing, we find the Hearing Officer discharged that obligation by proposing possible accommodations to Ms. Zarabi-Majd and remaining open to other suggestions (short of an indefinite adjournment).
[19] Ms. Zarabi-Majd has not shown that the Hearing Officer breached the duty to accommodate and the Commission’s finding that the Hearing Officer did not breach that duty is reasonable.
C. The Hearing Officer’s decision to proceed in Ms. Zarabi-Majd’s absence was not procedurally unfair.
[20] When considering Ms. Zarabi-Majd’s allegations of procedural unfairness, the question for this Court is whether the Hearing Officer afforded Ms. Zarabi-Majd the requisite level of procedural fairness in light of the nature of the decision, the nature of the statutory scheme, the importance of the decision to the Applicant, the legitimate expectations of the Applicant and the procedure followed by the Manager: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27. There is no applicable standard of review.
[21] Ms. Zarabi-Majd argues the discipline hearing was procedurally unfair because it proceeded in her absence. We disagree.
[22] The Hearing Officer had discretion to proceed in Ms. Zarabi-Majd’s absence if satisfied that Ms. Zarabi-Majd was given notice of the hearing and failed to attend: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 7(1).
[23] The Hearing Officer found that Ms. Zarabi-Majd was given notice of the hearing dates. The Hearing Officer also found that Ms. Zarabi-Majd made a “conscious, fully informed and educated decision” not to participate in the hearing. Finally, the Hearing Officer found that Ms. Zarabi-Majd understood the discipline hearing could proceed in her absence. Those findings were open to the Hearing Officer.
[24] Ms. Zarabi-Majd was served with a Notice of Hearing that required her to attend on November 1, 2022. She was clearly aware of the hearing dates because she brought two applications to adjourn the hearing. When those adjournment requests were denied, Ms. Zarabi-Majd, through her counsel, continued to take the position that she was not well enough to attend. Ms. Zarabi-Majd’s lawyer sent a letter to that effect to the Hearing Officer two weeks before the hearing.
[25] Ms. Zarabi-Majd was also aware the hearing could proceed in her absence. Counsel for the TPS brought a motion to proceed in Ms. Zarabi-Majd’s absence at the same time as Ms. Zarabi-Majd’s first adjournment application. The Hearing Officer declined to hear the TPS motion at that time. The Hearing Officer said she would consider the TPS motion only if Ms. Zarabi-Majd’s adjournment motion was dismissed and Ms. Zarabi-Majd failed to attend the hearing. Ms. Zarabi-Majd was, therefore, on notice that the hearing might proceed in her absence if she did not attend and if the TPS renewed its motion.
[26] The Hearing Officer’s factual findings that Ms. Zarabi-Majd was aware of the hearing dates and made a fully informed decision to not attend are unassailable. The Hearing Officer did not err in exercising her discretion to proceed in Ms. Zarabi-Majd’s absence and her decision to do so did not render the hearing procedurally unfair.
D. The Ontario Civilian Police Commission did not err in its Charter analysis.
[27] Ms. Zarabi-Majd makes two distinct arguments about the Commission’s Charter ruling. First, she argues the Commission erred in finding that the right to security of the person and the right to equality were not engaged in her case. Second, she argues the Commission erred in finding that her dismissal from the TPS was a proportionate limitation on her freedom of expression.
[28] We would not give effect to either argument.
[29] To understand our conclusion, we must summarize the allegations against Ms. Zarabi-Majd and the way in which the Charter issues arose in some detail.
[30] As set out above, Ms. Zarabi-Majd was found guilty of four counts of insubordination and four counts of discreditable conduct. Three of the four counts of discreditable conduct relate to statements Ms. Zarabi-Majd made on Twitter. In other words, Ms. Zarabi-Majd was punished for her expressive activity.
[31] Unlike the hearing on the merits of the charges, the disposition hearing did not proceed in Ms. Zarabi-Majd’s absence. She participated in the disposition hearing and was represented by counsel. Ms. Zarabi-Majd’s counsel did not raise any Charter issues in her submissions on the appropriate disposition and the Hearing Officer did not consider whether dismissing Ms. Zarabi-Majd from the TPS was consistent with Charter-protected rights or values.
[32] Nor did Ms. Zarabi-Majd’s counsel raise any Charter issues in her appeal of the Hearing Officer’s decision to the Ontario Civilian Police Commission.
[33] The Commission raised the application of the Charter itself and asked for supplementary submissions on whether Ms. Zarabi-Majd’s dismissal was a disproportionate limit on her Charter-protected rights.
[34] Ms. Zarabi-Majd’s supplementary submissions focused almost exclusively on whether the disciplinary proceedings and her dismissal were a proportionate limit on her freedom of expression. Her supplementary submissions made only the most passing reference to the right to life, liberty and security of the person under s. 7 of the Charter and the right to equality under s. 15 of the Charter but did not explain how those rights were engaged or how they should factor into the analysis.
[35] The Commission conducted a full analysis of whether the proceedings and Ms. Zarabi-Majd’s dismissal were a proportional limit on her freedom of expression under s. 2(b) of the Charter but found that the right to security of the person under s. 7 of the Charter and the right to equality under s. 15 of the Charter were not engaged.
[36] Ms. Zarabi-Majd now argues the Commission failed to appreciate that the purpose of her tweets was to protect and promote the safety and equality of female officers within the TPS, which are values protected by ss. 7 and 15 of the Charter. Ms. Zarabi-Majd further argues that the Commission’s decision that ss. 7 and 15 of the Charter were not engaged tainted its decision that her dismissal was a proportionate limit on her Charter-protected rights.
a. Standard of review
[37] The parties do not agree on the standard of review we should apply to the Commission’s decision that the security of the person and equality interests are not engaged in this case. Ms. Zarabi-Majd argues that that decision should be reviewed on a correctness standard. The TPS, on the other hand, argues the standard of review is reasonableness. This difference in position stems from two recent decisions of the Supreme Court of Canada: the 2023 decision in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 and the more recent decision in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22, both of which involve the judicial review of administrative decisions that engaged Charter rights or values.
[38] To determine what standard of review applies, we must start with the Supreme Court of Canada’s decision in Doré v. Barreau du Québec, 2013 SCC 12. The issue in Doré was very similar to the issue in this case – whether the disciplinary decision of the Barreau du Québec to reprimand a lawyer for the content of a letter he wrote to a judge infringed the lawyer’s freedom of expression under s. 2(b) of the Charter. The Court grappled with whether to apply a reasonableness standard of review to the Barreau du Quebec’s decision (because it involved the exercise of discretion by an administrative tribunal with expertise) or a correctness standard of review (akin to the review done by the courts when considering whether an infringement of a Charter right is justified under the s. 1): Doré at para. 52. The Court concluded that the reasonableness standard of review should apply. The Court held that the question on judicial review of an administrative decision that engages Charter rights or values is whether the decision reflects a proportionate balancing of the Charter protections at play with the objectives of the statutory framework within which the decision was made: Doré at paras. 57-58.
[39] In 2019, the Supreme Court conducted a sweeping review of the standards of review applicable on judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The Court concluded that the presumptive standard of review is reasonableness and reviewing courts should only depart from that presumption in very limited circumstances: Vavilov, at para. 10. For example, a correctness standard will apply to some legal questions, including constitutional questions and general questions of law of central importance to the legal system: Vavilov, at paras. 53-57. In Vavilov, the Supreme Court expressly declined to overrule or alter the framework articulated in Doré.
[40] Two more recent Supreme Court cases have addressed the standard of review that applies on judicial review where an administrative decision engages Charter rights or values. First, in Commission scolaire francophone, the Supreme Court held that, post-Vavilov, reasonableness continues to be the standard of review that applies when reviewing discretionary decisions that engage Charter rights or values: Commission scolaire francophone at para. 60. However, in York Region, the Supreme Court ruled that a correctness standard applies to constitutional questions related to “whether a Charter right arises, the scope of its protection, and the appropriate framework of analysis.” The Court reasoned that those were the sorts of constitutional questions that require “a final and determinate answer from the courts”: York Region, at para. 63, Vavilov at paras. 53 and 55.
[41] At first blush, the Supreme Court’s rulings in Commission scolaire francophone and York Region may appear inconsistent. In our view, however, there is a way to reconcile the two decisions, which is to apply a correctness standard to the issue of whether the Charter applies or how a Charter right should be defined (following the decision in York Region) and to apply a reasonableness standard to the issue of whether the decision is a proportionate limit on the applicable Charter rights or values (following the decisions in Commission scolaire francophone and Doré).
[42] We, therefore, find the standard of review of the Commission’s decision that ss. 7 and 15 are not engaged is correctness. But a reasonableness standard applies to the Commission’s decision that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression.
b. The Commission was correct that ss. 7 and 15 of the Charter are not engaged.
[43] Ms. Zarabi-Majd argues the Commission erred in finding that the right to security of the person under s. 7 of the Charter and the right to equality under s. 15 of the Charter are not engaged in her case. She argues the tweets for which she was punished “are clearly characterized by advocacy against reprisal for reporting sexual violence and the silencing of victims with non-disclosure agreements.” She also argues that her tweets were a form of advocacy for accountability for systemic sexual violence and systemic racism within the TPS.
[44] The starting point for whether ss. 7 and 15 of the Charter are engaged must be language of the charges, the TPS policy on the use of social media and the Hearing Officer’s factual findings.
[45] Ms. Zarabi-Majd was found guilty of three counts of discreditable conduct for tweets that contain “vulgar terms, obscenities, libelous and false information and degrading comments.” One count related to tweets about and aimed at the TPS Board, members of Toronto municipal government and members of the public (count 3). The other two counts related to tweets about the Chief of Police (count 9 and 11).
[46] The TPS Policy governing social media use by its members permits officers to make public comments about political, community and social issues in their personal capacity. However, the policy prohibits officers from posting information that “may compromise the integrity and good reputation of the Service.” The TPS Standards of Conduct prohibit its members from making public comments that “amount to criticism of the Service or the Board” or that “amount to a personal attack on the character or integrity of an individual.”
[47] Ms. Zarabi-Majd does not challenge the constitutionality of either the TPS Policy or Standards of Conduct. Rather, she argues that the Commission was required to consider whether her dismissal was a reasonable limit of the right to equality and the right to security of the person because her tweets were designed to promote security and equality for racialized female officers within the TPS. She argues that her dismissal was not proportionate because it will have a chilling effect on other officers who advocate for equality and security from harassment within the TPS.
[48] However, the Hearing Officer made very different factual findings about the content and purpose of some of Ms. Zarabi-Majd’s posts. The Hearing Officer found some of her tweets to be racist, offensive, obscene, vulgar, disrespectful, degrading, false and libelous. The Hearing Officer found other tweets contain “inflammatory comments.” For example, in one post, Ms. Zarabi-Majd accused the Mayor of Toronto of being “a complicit sexual predator enabler.” In another post, she accused the Chief of Police of holding sex parties at which rookie officers were “pimped.” In one message directed at the Chief of Police, Ms. Zarabi-Majd called him a sexual predator, a thug, a woman abuser and a coward. At the end of that same message, Ms. Zarabi-Majd wrote, “Fuck patriarchy. Fuck white supremacy. Fuck enablers. We deserve better than you and so does your daughter.” The Hearing Officer found that Ms. Zarabi-Majd engaged in a “relentless campaign” that was designed to “not only damage, but to destroy the reputation of the TPS as a whole, its senior members, and the Board.” The Hearing Officer also found that Ms. Zarabi-Majd’s tweets were likely to discredit the TPS in the eyes of a reasonable member of the community and diminish public confidence in the Chief. Those findings were open to the Hearing Officer on the evidence adduced at the hearing in Ms. Zarabi-Majd’s absence.
[49] The Hearing Officer’s decision focused on Ms. Zarabi-Majd’s false, offensive, obscenity-filled tweets that were intended to destroy the reputation of the Chief and other members of the Board. Those comments engage her right to freedom of expression but do not engage any of the rights or values underlying ss. 7 and 15 of the Charter. The Commission was, therefore, correct in finding that ss. 7 and 15 were not engaged in this matter.
c. The Commission’s finding that Ms. Zarabi-Majd’s dismissal is a proportionate limit on her freedom of expression is reasonable.
[50] Having found that the Commission was correct that ss. 7 and 15 were not engaged, the remaining question is whether the Commission’s decision upholding Ms. Zarabi-Majd’s dismissal is reasonable. To be reasonable, the decision must reflect a “proportionate balancing” of her Charter rights and the statutory objectives of the Police Services Act: Commission scolaire francophone at para. 67. The decision must also show that the Commission meaningfully considered the impact its decision might have on others: Vavilov, at paras. 128 and 133.
[51] The Commission made no error in finding that the objectives of the Police Services Act are to ensure transparency and enhance public confidence in policing: Figueiras v. (York) Police Services Board, 2013 ONSC 7419 at para. 54. The restrictions in the TPS Policy and Standards of Conduct on the use of social media by officers are consistent with the objectives of the Police Services Act. The Commission found that Ms. Zarabi-Majd was aware of the limits placed on her social media use by the TPS Policy and Standards of Conduct when she took oath to become a police officer.
[52] The Commission also made no error in finding that Ms. Zarabi-Majd was not punished for her use of social media generally. Rather, Ms. Zarabi-Majd was punished only for those posts that violated the TPS Policy and Code of Conduct, and undermined public confidence in the TPS. Under the Police Services Act, an officer cannot be disciplined for misconduct while off duty unless there is a connection between the conduct and “the occupational requirements for a police officer or the reputation of the police force”: Police Services Act, R.S.O. 1990, c. P.15, s. 80(2).
[53] Despite finding that ss. 7 and 15 were not engaged in this case, the Commission fully considered Ms. Zarabi-Majd’s argument that her Twitter posts were intended to raise awareness about the TPS work environment and expose TPS wrongdoing. The Commission considered and rejected Ms. Zarabi-Majd’s argument that her Twitter posts had significant public value that were intended to promote the objectives of the Police Services Act, including maintaining public confidence in policing. The Commission found that Ms. Zarabi-Majd’s argument was an attempt to relitigate the factual findings made by the Hearing Officer.
[54] The Commission also rejected Ms. Zarabi-Majd’s argument that she had no way other than Twitter to address her concerns about misconduct within the TPS. That finding was reasonable.
[55] Finally, the Commission considered and rejected Ms. Zarabi-Majd’s argument that punishing her for her Twitter posts would discourage other TPS employees from reporting harassment within the Service. The Commission found that, given the “exceptional circumstances” of Ms. Zarabi-Majd’s matter, including the content and volume of her posts as well as the very public nature of her criticisms, her dismissal from the TPS would not impact the reporting of harassment through appropriate channels.
[56] In the end, the Commission found that Ms. Zarabi-Majd’s dismissal was proportionate. On the one hand, the Commission found that Ms. Zarabi-Majd’s dismissal from the TPS would not have a chilling effect on the expressive rights of other officers beyond the limits imposed by the Police Services Act and the TPS policies. On the other hand, the Commission found that the findings of misconduct and Ms. Zarabi-Majd’s dismissal were “necessary to protect public confidence in policing.”
[57] We see no basis to interfere with the Commission’s conclusion that the penalty was a proportionate limit on the values underlying freedom of expression in light of the objectives of the Police Services Act.
E. Conclusion and Costs
[58] Ms. Zarabi-Majd’s application for judicial review is dismissed.
[59] The TPS is not seeking any costs on this judicial review application and no costs are awarded.
McGee J.
Davies J.
Shore J.
Date: January 14, 2025
CITATION: Zarabi-Majd v. Toronto Police Service, 2025 ONSC 277
DIVISIONAL COURT FILE NO.: 271/24
DATE: 20250114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McGee, Davies, Shore JJ.
BETWEEN:
Firouzeh Zarabi-Majd
Applicant
– and –
Toronto Police Service
Respondent
– and –
Ontario Civilian Police Commission
Respondent
REASONS FOR JUDGMENT
BY THE COURT
Date of Release: January 14, 2025