WARNING

The President of the panel hearing this appeal directs that an order restricting publication of certain documents in the Motion Record in this proceeding, pursuant to the Order of Swinton J., dated December 8, 2010, shall remain in effect until the conclusion of the criminal trial.

COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Provincial Police) v. Rutigliano, 2012 ONCA 484

DATE: 20120706

DOCKET: C53914

O’Connor A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Commissioner, Ontario Provincial Police

Appellant

and

Michael Rutigliano

Respondent

David Rose, for the appellant

Owen M. Rees, amicus curiae

Heard and released orally: July 4, 2012

On appeal from the order of the Divisional Court (Ferrier, Aston and Lederer JJ.), dated January 5, 2011.

ENDORSEMENT

[1] The appellant is the Commissioner of the Ontario Provincial Police (“OPP”). The respondent Michael Rutigliano (“Rutigliano”) was at the relevant time a sergeant of the OPP. He was charged under the Police Services Act, R.S.O. 1990, c.P.15 (“PSA”) with discreditable conduct.

[2] The then Commissioner appointed Retired Superintendent Maurice Elbers as the Adjudicator for the discipline hearing relating to Rutigliano. Rutigliano objected to the appointment on the basis of reasonable apprehension of bias and moved for the Adjudicator to recuse himself. In a ruling dated October 15, 2010, the Adjudicator dismissed Rutigliano’s motion. He concluded that “[t]he cases and the evidence supplied to me in this Motion does not meet the test required for a recusal of the Adjudicator.”

[3] Rutigliano sought judicial review of this decision in the Divisional Court. In an oral decision dated January 5, 2011, the court (Ferrier, Aston and Lederer JJ.) held that there was a reasonable apprehension of bias as a result of the information the Adjudicator received, and the Adjudicator’s comments, during two previous PSA charges against Rutigliano. It ordered that the Adjudicator be removed from the proceedings.

[4] On June 17, 2011, this court granted the Commissioner’s motion for leave to appeal.

[5] Rutigliano retired from the OPP on July 1, 2011. By operation of s. 90(1) of the PSA – “no further action shall be taken under this Part in respect of the complaint after the date of resignation” – the proceedings against Rutigliano came to an end.

[6] On consent, the Commissioner sought an order appointing former counsel for Rutigliano as amicus curiae. On February 3, 2012, O’Connor A.C.J.O. granted the order, but with this observation: “It remains open to the panel to decide whether it should hear the appeal in light of the fact that it is moot.”

[7] Amicus’ first position is that the court should not hear the appeal because, in light of Rutigliano’s retirement after leave to appeal was granted, it is moot since no hearing under the PSA can proceed.

[8] In order to respond to this submission, it is necessary to follow the two-step analysis set out by Sopinka J. in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, at para. 16:

First, it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to decide the case.

[9] In this appeal, the first question is easy to answer. Rutigliano is retired. The PSA proceedings against him cannot proceed. The substratum of his appeal has disappeared: see Borowski, at para. 26.

[10] On the second question, we decline to exercise our discretion to hear the appeal. Rutigliano has been retired for more than a year. The alleged events giving rise to the disciplinary hearing involving him took place almost a decade ago, on October 17, 2002. Moreover, we note that at one point in the proceedings, the prosecutor agreed that a new Adjudicator should be appointed in light of Rutigliano’s concern that there might be a reasonable apprehension that the designated Adjudicator might be biased.

[11] Further, the appellant submits that the Divisional Court’s decision changes the law relating to the reasonable apprehension of bias of adjudicators. We do not think that the Divisional Court’s decision alters the well-known test in this domain.

[12] Finally, the Commissioner contends that the issue posed by this appeal is important for PSA prosecutions and, potentially, in other contexts as well, including for judges in criminal courts in small jurisdictions.

[13] We disagree. The focus of the Divisional Court’s decision – a brief oral decision – was highly fact-specific. There is nothing of a jurisprudential nature in the decision that would apply to judges presiding in small jurisdications.

[14] In Tamil Co-operative Homes Inc. v. Arulappah, (2000), 2000 CanLII 5726 (ON CA), 49 O.R. (3d) 566 (C.A.), at para. 26, Doherty J.A. stated:

A review of the cases in which the Supreme Court of Canada has heard moot appeals demonstrates that there was a strong public interest in the resolution of the issues raised in those cases. The issues involved questions of broad social and constitutional importance.

[15] The discrete discipline complaint against a retired OPP officer does not come within this description.

[16] The appeal is dismissed as moot. No order as to costs.

“D. O’Connor A.C.J.O.”

“J.C. MacPherson J.A.”

“Paul Rouleau J.A.”