COURT OF APPEAL FOR ONTARIO

2014 ONCA 363

DATE: 20140506

DOCKET: C57694

Gillese, Rouleau and Tulloch JJ.A.

BETWEEN

Clare Endicott

Applicant (Respondent)

and

The Office of the Independent Police Review Director

Respondent (Appellant)

Heather Mackay, for the appellant

Alexi Wood and Safina Lakhani, for the respondent

Heard: February 12, 2014

On appeal from the order of the Divisional Court (Justices Anne M. Molloy, Thomas R. Lederer and Mark L. Edwards), dated May 2, 2013, with reasons reported at 2013 ONSC 2046, affirming the order of Justice Frances P. Kiteley, dated November 2, 2012, with reasons reported at 2012 ONSC 6250.

Rouleau J.A.:

OVERVIEW

[1] The issue raised in this case is a narrow one. Is the decision of the Independent Police Review Director (“Director”) not to deal with a complaint about the policies of or services provided by a police force or the conduct of a police officer the exercise of a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1(“JRPA”), or is it simply an exercise of discretion authorized by that statute and falling outside the definition of a statutory power of decision? If the decision is the exercise of a statutory power of decision, then s. 10 of the JRPA requires the Director, upon receipt of a notice of application for judicial review, to file a record of the proceedings in which the decision was made. If it is not the exercise of a statutory power of decision, the Director need only file materials as a respondent to an application.

[2] A subsidiary issue raised in this appeal is the need for guidance as to the content of the record of proceedings in those cases where one is required.

FACTS

[3] The respondent, Clare Endicott, is in her late 70s and says she suffers from a neurodegenerative disorder, possibly Huntington’s disease. In April 2011, she ordered a “helium hood” from the United States. The hood is designed to assist people in taking their own lives. The respondent says she ordered the hood for the eventuality that, in five to ten years, her medical condition became unbearable and she wanted to end her life. The respondent never received the hood. It seems the United States Federal Bureau of Investigation obtained information of her order and contacted the Toronto Police Services (“TPS”).

[4] On August 19, 2011, the TPS attended at the respondent’s Toronto residence. The respondent, however, was at her cabin in Muskoka. According to the respondent, the TPS officers spoke with two of her neighbours, obtaining the phone number of her son and the phone number for her cabin in Muskoka. Two Ontario Provincial Police (“OPP”) officers arrived at her cabin shortly thereafter, demanding that she accompany them. After a stand-off lasting more than an hour, the respondent agreed to leave by ambulance to be examined in hospital. The examining doctor found her cooperative and without any suicidal intentions.

[5] In the following weeks, the respondent filed two separate complaints with the Director about the conduct of individual officers and policies of the TPS and the OPP. The respondent alleged that the police officers violated her liberty and privacy rights in the above two incidents at her residence in Toronto and her cabin in Muskoka, respectively.

[6] In each case (with minor variations in punctuation) the Director’s letter in response stated as follows:

The [Office of the Independent Police Review Director] is aware of your concerns. However, taking all the information into consideration, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, we have no jurisdiction to deal with this matter, and our file is now closed.

[7] On February 1, 2012, the respondent brought an application for judicial review to quash the Director’s decision. The Director conceded that his decision is subject to judicial review and agreed to produce all relevant documents with respect to the complaints in a responding application record. However, the Director contended that, because he was exercising a discretionary power and not exercising a statutory power of decision as defined in the JRPA, he was not required to produce a record of proceedings as contemplated by s. 10 of the JRPA.

The decisions below

Divisional Court (single judge)

[8] As a preliminary matter, the respondent argued that the Director was required to file a record pursuant to s. 10 of the JRPA. The Director resisted and the motion judge concluded that the screening decision of the Director pursuant to s. 60 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”), is the exercise of a “statutory power of decision” and, as a result, ordered the Director to produce a record of proceedings.

[9] The motion judge viewed the PSA as conferring on members of the public a statutory right to file a complaint and to have that complaint dealt with in accordance with ss. 59 and 60 of the PSA. The Director’s decision as to what will happen with such a complaint was, in her view, the exercise of a power or duty under ss. 59 and 60. As a result, in deciding not to deal with the respondent’s complaints, the Director was exercising a statutory power of decision.

Divisional Court (3 judge panel)

[10] The Director brought a motion to review the motion judge’s decision before a full panel of the Divisional Court. The court unanimously dismissed the motion to review and ordered the Director to produce a record of proceedings within 30 days. The panel, however, expanded on the motion judge’s order and stipulated that the record of proceedings “include everything that was before the [Office of the Director], whether written, oral or electronic, at the time it made its decision.”

Leave to appeal to the Court of Appeal

[11] The Director then sought leave to appeal from the decision of the Divisional Court. On September 25, 2013, a panel of this court granted the Director leave to appeal.

ISSUES

[12] The issues raised in this appeal are as follows:

1. Was the Director’s decision to “screen out” the respondent’s complaints the exercise of a “statutory power of decision” as provided in the JRPA?; and

2. If the Director was exercising a statutory power of decision and must produce a record of proceedings pursuant to s. 10 of the JRPA, what is the record of proceedings to contain?

ANALYSIS

Relevant Statutory Provisions

[13] Section 58 of the PSA provides for a process pursuant to which members of the public can lodge complaints with the Director about:

(a) the policies of or services provided by a police force; or

(b) the conduct of a police officer.

[14] Section 59 then sets out the duties of the Director upon receipt of a complaint. It provides as follows:

(1) The Independent Police Review Director shall review every complaint made to him or her by a member of the public under this Part, and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer.

(2) Subject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61.

[15] The PSA also gives the Director broad discretion to decide not to deal with a complaint. The Director refers to this as the “screening in” or “screening out” process. That power is outlined in s. 60 of the PSA. The relevant parts of that section are as follows:

60. (1) The Independent Police Review Director may, in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part.

(4) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:

1. The complaint is frivolous or vexatious or made in bad faith.

2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.

3. Having regard to all the circumstances, dealing with the complaint is not in the public interest.

(7) If the Independent Police Review Director decides not to deal with a complaint, other than a complaint described in subsection (9), in accordance with this section, he or she shall notify the complainant and the chief of police of the police force to which the matter relates in writing of the decision, with reasons, and in the case of the chief of police, shall also give notice of the substance of the complaint.

[16] The parties agree that the Director’s decision pursuant to s. 60 not to deal with a complaint is reviewable pursuant to the JRPA. The question for this court is whether, as the Director argues, his decision pursuant to s. 60 is of a discretionary nature amounting to the exercise of a statutory power but not satisfying the narrower requirements of a statutory power of decision, or whether, on the contrary, his decision pursuant to s. 60 does satisfy the latter requirements.

[17] A statutory power of decision is defined in s. 1 of the JRPA as follows:

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[18] Pursuant to s. 10 of the JRPA, if the Director’s decision was the exercise of a statutory power of decision, he must, upon receipt of a judicial review application, file a record of proceedings. Section 10 of the JRPA reads as follows:

10. When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the court for use on the application the record of the proceedings in which the decision was made.

Was the Director’s decision the exercise of a statutory power of decision?

[19] The respondent maintains that the Director’s decision was a “decision deciding or prescribing” her “legal rights”. This would bring the Director’s decision squarely within subparagraph (a) of the definition of “statutory power of decision” in the JRPA. (The respondent has not advanced any argument under subparagraph (b).) Both the motion judge and full panel of the Divisional Court agreed. Because the Director’s decision was one that affected the respondent’s rights, when the Director was served with a judicial review application, he was, in the respondent’s submission, required to “file in the court for use on the application the record of the proceedings in which the decision was made.”

[20] The Director, however, argues that the Divisional Court erred in its understanding of the way in which the complaint process operates pursuant to the PSA. Central to the Director’s argument is his position that the complainant does not have a “right” to have a complaint dealt with in any particular way. In the Director’s submission, the PSA gives him broad statutory discretion to “screen out” complaints. This discretion to screen out complaints, when exercised, does not meet the definition of a statutory power of decision. The party making the complaint has no “legal right” that is engaged when the screening process is used by the Director. In the Director’s submission, the decision under appeal runs counter to the established jurisprudence recognizing that discretionary decisions by a tribunal as to whether or not a matter should be investigated are found not to be the exercise of statutory powers of decision.

[21] The Director further submits that because a record of proceedings is not defined in the JRPA, but is defined in s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), a record of proceedings should only be required where the SPPA applies to a decision. For the SPPA to apply to a decision there must have been a “proceeding” as provided in s. 3 of the SPPA, namely a proceeding “where the tribunal is required … to afford to the parties to the proceeding an opportunity for a hearing before making a decision.” Clearly, the Director’s decision to screen out the respondent’s complaints was not a proceeding as contemplated by the SPPA because no hearing was held, nor has it been argued that the Director was under any obligation to afford to the respondent or to any other “party” the opportunity for one. This, in the Director’s submission, lends further support to his position.

[22] The Director maintains that the Divisional Court’s decision would seriously impair his ability to screen out complaints as intended by the PSA. If decisions to screen out complaints are held to be the exercise of a statutory power of decision affecting a complainant’s rights, then, the Director argues, such decisions will be impressed with additional fairness requirements including the requirement to give notice to the complainant and to give the complainant the opportunity to make submissions. This would result in the process being bogged down in unnecessary process and procedure, thereby defeating the intention of the legislature that the complaint process set up under the PSA strike an appropriate balance between the right of a complainant to fairly bring forward a complaint and have it investigated and dealt with properly, while at the same time allowing the Director broad discretion to screen out complaints that are without foundation or that, for other reasons outlined in s. 60, ought not to be pursued.

[23] I would not give effect to the Director’s submissions. In my view, the Divisional Court correctly interpreted the statutory complaint scheme created by the PSA. As I will explain, a proper reading of the relevant statutory provisions makes it clear that a person who lodges a complaint has the right to have that complaint pursued unless a decision is taken by the Director pursuant to the PSA that the complaint should be screened out. The complainant’s right to have the complaint pursued is thereby ended; in other words, the complainant’s legal right is thereby “decided”.

[24] I turn now to the statutory provisions of the PSA. As repeatedly affirmed by the Supreme Court of Canada, the “modern principle” of statutory interpretation is 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”: Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21 (quoting Elmer Driedger, Construction of Statutes, 2d ed.(Toronto: Butterworths, 1983)).

[25] It is immediately apparent that the statutory provisions of the PSA establishing the complaints procedure and assigning to the Director his role are quite different from the complaint procedures set out in other statutes cited by the Director as being comparable. The Director has, for example, referred the court to s. 75(1) of the Health Professions Procedural Code (“HPPC”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The complaint procedure established by s. 75(1) was interpreted in Batacharya v. The College of Midwives of Ontario, 2012 ONSC 1072, and the court determined in that case that a decision by the college’s registrar not to pursue a complaint did not constitute the exercise of a statutory power of decision. The statutory provision in the HPPC, however, does not require the registrar to proceed with a complaint. To the contrary, a decision has to be made for the complaint to be pursued. The wording of s. 75(1) is that “[t]he Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct …” (emphasis added). The discretion is exercised to allow a complaint to be pursued.

[26] By contrast, s. 59(1) of the PSA provides that the Director “shall review every complaint … and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer” (emphasis added). The complainant is therefore assured by statute, that unless the director decides otherwise, the complaint will be pursued. A determination will first be made as to whether the complaint is about a policy or service of the police force or about the conduct of a police officer. Section 59(2) then provides that “[s]ubject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61” (emphasis added). Section 61 of the PSA directs how various complaints are to be dealt with on the merits.

[27] The use of “shall” in these provisions, as a matter of both grammatical and ordinary sense and of established legislative usage, imposes statutory obligations on the Director, upon receipt of a complaint from a member of the public, to pursue the complaint. The Director must deal with the complaint in accordance with the provisions of the PSA. His discretion to “screen out” certain complaints is circumscribed and requires a decision. Section 60 provides that the director “may … decide not to deal with a complaint”. Absent a decision by the Director, the complaint must be dealt with in accordance with the terms of the PSA. The statute gives the complainant that right. Unlike other statutes such as the HPPC, the Director’s discretion is not in deciding whether he will deal with a complaint. Rather, his discretion is deciding whether to stop a complaint from proceeding in accordance with the process established by the PSA. In fact, all complaints, even those that are susceptible to being screened out pursuant to s. 60 are, absent a decision by the Director to screen them out, dealt with and investigated. The PSA states only that he “may” decide not to deal with a complaint that falls within one of the categories listed in s. 60. Therefore, absent intervention, s. 59 ensures that the complaint will be pursued and investigated in accordance with the process set out in s. 61.

[28] My conclusion that the Director’s decision to screen out the respondent’s complaints is the exercise of a statutory power of decision does not, as the Director suggests, mean that the SPPA applies to that decision or that additional fairness requirements are imposed on the Director in carrying out his screening out function. The respondent’s right to have the complaint dealt with in accordance with the PSA comes with the limits to that right imposed by the PSA. It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage. The SPPA, therefore, has no application and the concerns raised by the Director that the complaints process will be bogged down with procedural requirements is without foundation.

[29] My conclusion that the complainant has a right to have the complaint proceed in accordance with the PSA does not mean that the complainant has an unqualified right to have the complaint proceed to the investigation stage. It is presumed that the complaint will proceed to investigation but that presumption is qualified. The legislature has given the Director broad discretion in s. 60 to screen out complaints without an investigation being undertaken.

[30] The Director’s broad power to screen out complaints provides the balance in the complaint procedure that former Chief Justice of the Superior Court of Justice, the Honourable Patrick LeSage, considered necessary. The changes to the police complaints system that are now the subject of this appeal had their genesis in the report authored by Mr. LeSage: Report on the Police Complaints System in Ontario by Patrick J. LeSage (Toronto: Ministry of the Attorney General of Ontario, 2005). Therein, he expressed the view that access to the complaint process should be made easier for those with legitimate complaints about the police but also recognized that increasing access to the complaints system could tax the system’s resources. As he explained, at p. 64:

Removing the current systemic barriers to the reception of complaints needs to be balanced by conferring greater discretion on the recipient of complaints to determine whether a complaint should be pursued. There will be cases where the evidence to support a complaint is so tenuous that resources should not be expended to pursue them. Also, there will be cases where the “complaint” is really not one that is suitable for the complaints system to resolve. For example, a dispute as to whether a traffic ticket has been wrongly issued is a matter for the courts. While the current system allows a chief of police’s decisions to not pursue a complaint to be reviewable by OCCOPS, such a review is time intensive and inimical to the efficient resolution of complaints.

Facilitating access should mean the reception of all complaints, but it also requires that judicious screening of complaints be made as early as possible to protect the integrity of the system.

[31] Before turning to the second issue, I will respond to the Director’s submission that the decision in Jacko v. Ontario (Chief Coroner) (2008), 2008 CanLII 69579 (ON SCDC), 306 D.L.R. (4th) 126 (Div. Ct.), lends strong support to his position that the exercise of his discretion to screen out a complaint is not the exercise of a statutory power of decision.

[32] In Jacko, the Jackofamily asked the coroner to conduct an inquest into the death of their son. When the coroner declined to do so, the family applied for judicial review and sought to have the coroner produce a record of proceedings. Thus, the Divisional Court was faced with the question whether the coroner’s decision not to proceed with an inquest was the exercise of a statutory power of decision within the meaning of s. 10 of the JRPA. Although arising in the context of different legislation, namely, the Coroners Act, R.S.O. 1990, c. C.37, the question before the court in Jacko was the same question posed in the present case.

[33] Section 20 of the Coroners Act lists a number of considerations that the coroner is to take into account when making a determination whether an inquest is necessary or unnecessary. If the coroner decides that an inquest is unnecessary, certain relatives of the deceased are empowered by s. 26 of the Coroners Act to ask for a review of that decision. The section affords them the opportunity to state the reasons for their request either personally, by an agent or in writing. The coroner is then to advise the person in writing of his or her decision and, where the decision is not to hold an inquest, reasons for the decision are to be provided in writing. The relative is also provided with the right to request that the chief coroner review the coroner’s decision. The section further provides for a similar process allowing the relative to submit reasons for requesting the inquest to the chief coroner for purposes of the chief coroner’s review and states that the decision of the chief coroner is final.

[34] The Divisional Court in Jacko found that the coroner’s decision whether or not to hold an inquest was based purely on the public interest and not on any “rights” of the deceased’s family. The coroner’s decision, therefore, was not the exercise of a statutory power of decision.

[35] In my view, Jacko can be distinguished. The statutory scheme established by the Coroners Act is significantly different from the scheme set up under the PSA. Section 59 of the PSA imposes a statutory obligation on the Director to deal with a complaint as provided in s. 61 unless the Director determines that the complaint falls within the criteria set out in s. 60 and he decides not to deal with the complaint. A complainant under the PSA therefore has a right to have the complaint dealt with in accordance with s. 61 unless those two conditions are met.

[36] By contrast, there is no default requirement under the Coroners Act that, absent a screening out decision, a relative’s request under s. 26 is to result in an inquest or further investigation of the case. The relative’s request is to have the coroner reconsider a decision already made not to hold an inquest. That case does not, in my view, assist the Director.

What is to be included in the record of proceedings?

[37] The JRPA does not contain any provision setting out what is to be included in the record of proceedings. The SPPA by contrast does set out what is to be included in a record of proceeding where that Act applies. Section 20 of the SPPA provides as follows:

20. A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

[38] As I have explained above, the SPPA has no application to the Director’s decision to weed out a complaint filed under the PSA. As s. 20 of the SPPA explicitly states, the record of proceeding contemplated under that Act is a record of proceeding prepared following a hearing. The screening out decision of the Director is fundamentally different and, in my view, little guidance can be taken from s. 20 of the SPPA in answering the question of what the Director is to include in his record of proceedings.

[39] The motion judge’s order simply provided that the Director was to file “a record of proceedings” without stipulating what the record should contain. The panel of the Divisional Court, sitting in review of the motion judge’s decision, substantially expanded the order and required that the record of proceedings “include everything that was before the [Office of the Director], whether written, oral or electronic, at the time it made its decision.”

[40] In my view the motion judge’s order was the appropriate order in the circumstances. As I noted earlier, the JRPA does not stipulate what is to be included in a record of proceedings. It would seem reasonable to conclude that, depending on the decision-maker and the type of decision made, the contents of such a record will be substantially different. The parties’ facta and oral submissions provided limited assistance on this point. As a result, at the conclusion of oral submissions, the parties were asked to provide written submissions on what should be included in any record of proceedings.

[41] The position taken by the respondent in these submissions was that the Director should be required to file a record of proceedings that includes:

(a) Ms. Endicott’s complaint;

(b) Internal notes or memoranda regarding Ms. Endicott’s complaint;

(c) Copies of any audio or oral recordings, including voicemails (in the native format; transcripts are not required);

(d) Copies of any relevant communication, including those in electronic format such as emails;

(e) Interview notes, with any witnesses (with any information removed as necessary under privacy legislation);

(f) Copies of all correspondence between Ms. Endicott and the Director or his office;

(g) Any general policies, memoranda, or notes relevant to the decision of Ms. Endicott’s complaint (subject to deliberative secrecy); and

(h) A list of all documents the Director has determined need not be produced.

[42] For his part, the Director only addressed what should be included in a record filed in response to an application for judicial review. He submitted that such a record should include:

(a) The complaint form and any attachments provided by the complainant;

(b) The reasons for decision;

(c) Information from the Director’s files that is directly relevant to or was part of the screening decision and is not subject to solicitor/client privilege, deliberative secrecy or statutory confidentiality; and

(d) Any evidence relied on in making the screening decision which is directly relevant to the issues raised in the application.

[43] I view the extent of the material ordered by the Divisional Court and the list proposed by the respondent to be overly broad and unnecessarily detailed. It is well settled that the starting point for defining what a record of proceeding is to contain when no statutory definition is provided is the decision of Denning L.J. in R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), at pp. 351-52. There Denning L.J. stated that:

…throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision.

[44] The statement was expanded upon by Sharpe J.A., writing for the majority in Payne v. Ontario Human Rights Commission (2000), 2000 CanLII 5731 (ON CA), 192 D.L.R. (4th) 315, wherein he stated, at para. 161:

An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court’s inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in R. v. Medical Appeal Tribunal, Ex parte Gilmore, [1957] 1 Q.B. 574 (Eng. C.A.) at 583:

The court has always had power to order an inferior tribunal to complete the record … [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order.

[45] The Director has indicated a willingness to file the materials listed in paragraph 42 above in response to an application for judicial review. With the exception of the materials referred to in item (d) of that list, I have assumed that he would file similar materials as part of a record of proceedings if we were to confirm the divisional court’s decision. The materials referred to in item (d) only become relevant once the respondent has set out the issues she wishes to raise on judicial review. In my view, the materials listed in paragraph 42, items (a), (b) and (c), satisfy what is required in a record of proceedings in this context. Arguably, the breadth of the materials that could be encompassed within item (c) may, in some cases, exceed what is required or be subject to interpretation. In light of the Director’s apparent willingness to include the materials listed in items (a), (b) and (c), in my view nothing more is needed in this case than to require that the Director file a record of proceedings so constituted. If further direction is required, it can be addressed in the judicial review proceedings.

[46] Defining the record in the way proposed by the respondent or as ordered by the Divisional Court is in my view unwarranted and can be confusing. The statutory power of decision exercised by the Director in this case is clearly at the lower end of statutory decision-making in terms of deliberative process, rights affected and complexity. As explained by the Director, screening out decisions will only infrequently involve consideration of more than the complaint form and attachments provided by the complainant. Stipulating that any record filed must contain “audio or oral recordings, including voicemails” suggests that there is an obligation on the Director to catalogue and keep records of all voicemails that may, at some later point, have to be produced in response to a judicial review application challenging a screening out decision. Given the nature of the screening out decision contemplated by the PSA, requiring the production of records of proceedings defined in this way is overly broad and, in my view, unhelpful.

[47] It may well be that, depending on the nature of a complaint and the challenge brought to the screening out decision made by the Director, a record of proceedings in a given case will contain materials that go beyond those listed by the Director, as quoted above. It may also become clear in the course of this proceeding or other proceedings that the court will be called upon to order the Director to produce additional materials. That, however, is for another day and need not be decided in the context of this appeal.

CONCLUSION

[48] For these reasons, I would allow the appeal only to the extent of striking paragraph three of the Divisional Court’s order wherein it stipulated what was to be contained in the record of proceedings, and substitute an order that the Director file a record of proceedings that complies with these reasons. In all other respects, I would dismiss the appeal. The Director does not seek costs and, as a result, I would make no order as to costs.

Released: May 6, 2014 “Paul Rouleau J.A.”

(E.E.G.) “I agree E.E. Gillese J.A.”

“I agree M. Tulloch J.A.”