Wall v. Office of the Independent Police Review Director
[Indexed as: Wall v. Ontario (Office of the Independent Police Review Director)]
Ontario Reports
Court of Appeal for Ontario,
Feldman, Blair and Pepall JJ.A.
December 11, 2014
123 O.R. (3d) 574 | 2014 ONCA 884
Case Summary
Administrative law — Judicial review — Costs — Respondent bringing successful application for judicial review of director's decision not to proceed with complaint under Police Services Act — Divisional Court awarding costs in favour of respondent's pro bono counsel in amount of $20,000 — Costs award affirmed on appeal.
Police — Complaints — Section 60(2) of Police Services Act providing that director may refuse to deal with complaint that is filed more than six months after facts on which it is based occurred — Director erring in treating that provision as limitation period and in failing to apply discoverability principle in deciding not to proceed with complaint — Director's reasons inadequate as he failed to explain why he was not extending s. 60(2) time period in circumstances where complainant only became aware of facts which gave rise to complaint after six-month period had expired — Police Services Act, R.S.O. 1990, c. P.15, s. 60(2).
W was arrested during the G20 summit in Toronto solely because he was wearing a bandana around his neck. He filed a complaint with the Office of the Independent Police Review Director. The director found that the allegation of misconduct on the part of the arresting officers was substantiated and serious. When W received a copy of the investigative report that was prepared in the course of investigating his complaint, he learned for the first time that orders to arrest everyone wearing certain items of clothing possibly came from higher ranking officers and that those orders may have been conveyed to the higher ranks at a meeting attended by the chief of the Toronto Police Services. W filed a complaint against the police chief and any other officers involved in or having knowledge of the meeting. Section 60(2) of the Police Services Act provides that the director may refuse to deal with a complaint that is filed more than six months after the facts on which it is based occurred. The director advised W that he was not going to proceed with the complaint as it was out of time. W brought a successful application for judicial review of that decision. The Divisional Court found that the director erred in treating s. 60(2) as a limitation period and in failing to apply the discoverability principle; that he breached the statutory requirement that he give reasons and the principles of procedural fairness and natural justice in failing to do so; and that his decision was unreasonable both because of the lack or inadequacy of the reasons and because, as a result, it was not possible to determine whether the director considered the relevant factors in exercising his statutory discretion not to proceed with the complaint. The court awarded costs in favour of pro bono counsel for W in the amount of $20,000. The director appealed.
Held, the appeal should be dismissed.
The Divisional Court did not err by applying the concept of discoverability to s. 60(2). The director is required by the scheme and language of the Act and principles of fairness to take into account discoverability principles when exercising [page575] his s. 60 function. The Divisional Court also did not err in finding that the director's reasons were inadequate as he failed to explain why he was exercising his discretion not to proceed with the complaint. The director's discretion to deal or not deal with a complaint that brings s. 60(2) into play is unfettered. Section 60(3) mandates that in making a determination under s. 60(2), the director "shall consider . . . whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with". It was not possible to tell whether the director applied his mind to that mandatory consideration. The matter should be remitted to the director for reconsideration.
The costs award was appropriate. The director was an adversarial litigant even though he had a public interest mandate to pursue. The public generally had an interest in learning more about what may have gone wrong with policing at the highest levels in relation to the G20 summit, and it was W who successfully pursued that issue. W would not have been able to do so without the assistance of pro bono counsel.
Engel v. da Costa, [2008] A.J. No. 422, 2008 ABCA 152, 429 A.R. 184, 70 Admin. L.R. (4th) 244, 54 C.P.C. (6th) 352, 90 Alta. L.R. (4th) 219, 167 A.C.W.S. (3d) 798 [Leave to appeal to S.C.C. refused 2008 48616 (SCC), [2008] S.C.C.A. 284, 460 A.R. 400n]; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62, 50 Admin. L.R. (3d) 302, 23 C.C.E.L. (3d) 84, 120 A.C.W.S. (3d) 492 (Div. Ct.), distd
Other cases referred to
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Endicott v. Ontario (Independent Police Review Office), [2014] O.J. No. 2189, 2014 ONCA 363, 319 O.A.C. 324, 373 D.L.R. (4th) 149, 70 Admin. L.R. (5th) 59, 239 A.C.W.S. (3d) 823; R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34, 4 W.C.B. 171
Statutes referred to
Employment Standards Act, 2000, S.O. 2000, c. 41, s. 96 [as am.]
Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 4(1)
Police Act, R.S.A. 2000, c. P-17, s. 43(11) [as am.]
Police Services Act, R.S.O. 1990, c. P.15 [as am.], ss. 26.2(a), Part V [as am.], ss. 58(1) [as am.], 59 [as am.], (2), 60 [as am.], (1), (2), (3) [as am.], (c), (4), (5), (6), (7), 61 [as am.]
Authorities referred to
LeSage, Patrick J., Report on the Police Complaints System in Ontario (Toronto: Ontario Ministry of the Attorney General, 2005)
Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014)
APPEAL from the order of the Divisional Court (Molloy, Aston and Harvison Young JJ.), [2013] O.J. No. 2624, 2013 ONSC 3312, 362 D.L.R. (4th) 687 (Div. Ct.) allowing an appeal from [page576] a decision of the Office of the Independent Police Review Director dated February 2, 2012.
Heather Mackay, for appellant.
Clayton C. Ruby and Nader R. Hasan, for respondent.
The judgment of the court was delivered by
BLAIR J.A.: —
Background
[1] On June 27, 2010, Jason Wall was walking along Yonge Street near Gerrard Street in the City of Toronto when he was arrested by two officers of the Toronto Police Services. His apparent crime was that he was wearing a bandana around his neck during the tense days of the G20 summit of world leaders held in Toronto. He was released without charges the next day, after 28 hours in custody.
[2] Like several hundred of the more than 1,100 protesters arrested during the summit, Mr. Wall filed a complaint with the Office of the Independent Police Review Director ("OIPRD"). The Director "screened in" the complaint for investigation pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (the "Act"), and after investigation found that the allegation of misconduct was substantiated against the arresting police officers and that it was of a serious nature. Disciplinary hearings under the Police Services Act proceeded against the officers and a civil action has been settled.
[3] The circumstances leading up to the present appeal arise out of the investigative report that was prepared in relation to the two arresting officers as part of the process of investigating Mr. Wall's complaint. Portions of that report indicated that the arrest may have occurred as a result of orders from higher ranking officers. Those orders are said to have directed that anyone dressed in certain getup (including the wearing of a bandana) was to be arrested and charged with being disguised with the intent to commit an indictable offence (the charge on which the appellant was arrested). The report revealed that the orders may have been conveyed to the higher ranks at a meeting at which the chief of the Toronto Police Services, William Blair, had attended.
[4] Mr. Wall received a copy of the investigative report shortly after its release on September 7, 2011. On January 25, 2012, he filed "a follow-up" complaint (or, alternatively, a second complaint) [page577] against Chief Blair and any other officers involved in or having knowledge of the meeting.
[5] The January 25 complaint was filed in this alternative fashion because of a potential difficulty posed by s. 60(2) of the Police Services Act, which provides that the Director may refuse to deal with a complaint that is filed more than six months after the facts on which it is based occurred. Mr. Wall and his counsel recognized there was a risk that, if the subsequent complaint were considered a new complaint, as opposed to a follow-up complaint, s. 60(2) could create a timing problem. While his first complaint had been filed on December 28, 2010 -- within the six-month period after the G20 summit -- the January 25, 2012 complaint was not; the facts on which it was based (albeit unknown to Mr. Wall until shortly before) had all occurred well outside the six-month period.
[6] Their concerns proved well-founded. On February 2, 2012, the Director advised that he was not going to proceed with the complaint because it was out of time.
[7] Mr. Wall sought judicial review of that decision. The Divisional Court quashed the Director's decision not to proceed and remitted the matter back to the Director for his reconsideration whether to proceed. The OIPRD appeals that decision, with leave.
[8] For the reasons that follow, I would dismiss the appeal.
The Complaint(s) and the Director's Decisions
[9] On December 28, 2010, Mr. Wall filed his complaint with the OIPRD outlining his version of what had happened. In his affidavit, he stated that he requested "a full investigation into [his] illegal arrest, the illegal searches of [his] person, shoulder bag, and cellular telephone, as well as [his] subsequent mistreatment in the Prisoner Processing Centre" (emphasis added).
[10] Eight months later, the Director issued his investigative report concluding that Mr. Wall's allegations were "substantiated" and "serious in nature". He found there was a sufficient body of evidence to establish reasonable grounds to believe that misconduct had occurred in connection with the complaint.
[11] The arresting officers -- Constables Vincent Wong and Blair Begbie -- were subsequently prosecuted for disciplinary offences under the Police Services Act. On December 13, 2013, the Honourable Walter S. Gonet, hearing officer, found that Cst. Wong -- who had conducted the actual arrest -- had committed police misconduct by making an unlawful and unnecessary arrest without good and sufficient cause. He dismissed the allegations against Cst. Begbie, who was with Cst. Wong at the time. [page578]
[12] The Director's investigative report was very thorough insofar as it dealt with the allegations concerning the two arresting officers. For the first time, however, it revealed that Constables Wong and Begbie were (or were under the impression they were) acting on instructions from higher command. The Director took no steps to inquire into any such instructions.
[13] Cst. Begbie is said in the report to have stated that
[H]e was briefed by Sergeant Gibb, who had never briefed them before. Sergeant Gibb advised Constable Begbie that he had just come from a meeting with the Chief of Police and he had specific instructions for that day.
[T]he instructions [from command] were ". . . that anybody wearing a bandana or mask or gas mask concealing their identity were to be arrested for disguise with intent and I specifically wrote that in my book that morning".
(Emphasis in original)
[14] The report also noted that
Constable Begbie was asked by O.I.P.R.D. Investigators "If you weren't given the orders or weren't given the information that you received from Sergeant Gibb, during your parade, would you have laid that same charge against the complainant?" to which Constable Begbie stated "No. There were other charges that we considered during that time, for example Breach of the Peace or Participate in a Riot, but having come directly from that briefing and told that this is sort of the order of the day and this is what we want to happen today, that's why we went with that charge."
(Emphasis in original)
[15] Cst. Wong is said in the report to have stated that
[W]e were given instruction in regards to what had happened on the Saturday which was the day before and presumabl[y] over night as well and we were given specific direction in regards to people that were wearing banners, gasmask[s], [and] goggles and that they were going to be arrestable or that they were to be arrested for Disguise with Intent, which is a Criminal Code Offence and as well anyone with a backpack was to be searched and if they refused to be search[ed] then they would be arrestable for obstruct police which is a Criminal Offence and as well as people, weapons including bottles and canisters of liquid were to be investigated and arrested for Possession of Weapons.
(Emphasis omitted)
[16] Both Cst. Wong and Cst. Begbie are reported to have stated that "these instructions were from 'Upper Command'".
[17] Mr. Wall first learned of the instructions from higher command when he received the report on September 7, 2011. He filed his follow-up or second complaint on January 25, 2012.
[18] Eight days after receipt of the follow-up or second complaint, the Director advised Mr. Wall that he would not proceed with it. His decision in its entirety reads as follows: [page579]
The Office of the Independent Police Review Director (OIPRD) has carefully reviewed your complaint about the conduct of Chief William Blair of the Toronto Police Service.
The OIPRD is aware of your concerns. S. 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred. Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred.
To find out more about OIPRD screening process and the Police Services Act, please visit our website at www.oiprd.on.ca.
The Divisional Court Decision
[19] In a careful and thorough decision on behalf of the Divisional Court, Molloy J. reviewed the factual circumstances underlying Mr. Wall's arrest, the nature of his complaint, and the relatively new statutory framework that was enacted to deal with complaints against the police and to establish the OIPRD, in response to the recommendations in the 2005 report of the Honourable Patrick LeSage.1 She concluded that the Director's decision must be quashed on, broadly, two bases.
[20] The first turned on the Director's treatment of the six-month period for the filing of a complaint, as set out in s. 60(2) of the Police Services Act. She concluded that the Director erred in treating that provision as a limitation period, and compounded the error by failing to apply the "discoverability" principle in making his decision not to proceed.2
[21] The second error revolved around the "reasons" provided by the Director. In the Divisional Court's view, the Director breached the statutory requirement that he give reasons and breached the principles of procedural fairness and natural justice in failing to do so. In addition, the Director's decision was unreasonable both because of the lack or inadequacy of the reasons and because, as a result, it was not possible to determine whether the Director considered the relevant factors in exercising his statutory discretion not to "screen in" the complaint.
[22] These two grounds overlap. In effect, Molloy J. concluded that fairness and the provisions of the Police Services Act [page580] required that the Director take into account both (a) the fact that Mr. Wall was unaware of the potential involvement of higher ranks in the orders leading to his arrest until after the six-month period had elapsed, and (b) his obligation to provide adequate reasons explaining why he was not extending the s. 60(2) time period in all the circumstances.
[23] Molloy J. declined to grant an order of mandamus requiring the Director to refer the complaint against Chief Blair for investigation, as sought by Mr. Wall. She reasoned that the Director had not demonstrated a closed mind nor had he "used up" his discretion, and that mandamus was not necessary. There is no cross-appeal from that decision.
[24] She also awarded costs in favour of pro bono counsel for Mr. Wall in the amount of $20,000. The Director seeks to set aside that order as well.
Analysis
[25] The Director argues that the Divisional Court erred in three ways:
(a) by applying the concept of "discoverability" to s. 60(2) of the Police Services Act when there was clear legislative intention to the contrary;
(b) by finding that the Director failed to provide reasons for his decision and that he was required to provide "detailed reasons" for his screening decision; and
(c) by ordering the Director to pay costs or, in the alternative, excessive costs, to Mr. Wall.
[26] Although there is some overlap between (a) and (b), I will deal with each of these grounds in turn.
[27] I note at the outset that the standard of review for the Divisional Court's determination that s. 60(2) incorporates discoverability principles is correctness, as it raises a question of law. The standard of review for the Director's decision not to deal with the appellant's complaint is reasonableness, as it was a discretionary decision.
"Discoverability"
[28] As explained below, I am persuaded that the Director is required by the scheme and language of the Police Services Act and principles of fairness to take into account discoverability principles when exercising his s. 60 function. [page581]
[29] "Discoverability" is the term used -- usually in the limitation period context -- to describe the principle that a time limit ought not to begin to run against a complainant until the moment when the complainant knew, or ought reasonably to have known, that he or she had the basis for a complaint. In essence, it is a fairness principle, designed to balance the need for finality against exposure to liability by potential defendants, and the need to avoid an injustice to the individual seeking to assert legitimate claims that were unknown to him or her before the time expired.
[30] The Director argues that the Divisional Court erred by incorporating this concept into the operation of s. 60(2) of the Police Services Act.
[31] I disagree. There are three principal reasons why the timing of when a complainant knew (or ought reasonably to have known) that there was a basis for a complaint is a factor the Director is required to consider when exercising his functions under s. 60(2) of the Act. First, there is nothing in the Act that indicates discoverability is excluded from the Director's consideration. Second, the overall scheme of Part V of the Act favours the notion that complaints are generally to be dealt with. Third, s. 60(3) of the Act requires the Director to consider the public interest.
[32] The view that discoverability must be taken into account is consistent with the scheme set out in Part V of the Act. Part V provides for the supervision and treatment of complaints made to the Director by members of the public concerning police policies, services or conduct, and the disciplinary proceedings that may or may not flow from those complaints. Section 26.2(a) of the Act mandates the Director "to manage complaints made to him or her by members of the public". Part V lays down the procedure for doing so.
[33] Any member of the public may make a complaint to the Director under Part V about the policies of or services provided by a police force, or about the conduct of a police officer: s. 58(1). Sections 59 and 60 of the Act set out the parameters of the Director's review of such complaints. Their full text is attached as an appendix to these reasons.
[34] In brief, however, the Director is required by s. 59 to review every complaint made, to classify it (as a complaint about policies or services or the conduct of a police officer), and to ensure that it is dealt with in accordance with the mechanisms set out in s. 61 and following.3 [page582]
[35] However, to shield the police against an avalanche of frivolous or improper complaints, s. 60(1) provides that the Director [at para. 17] "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" (emphasis added). Under s. 60(4), the Director may decide not to deal with a complaint if it is frivolous, vexatious or made in bad faith, could more appropriately be dealt with under another statute, or if in the circumstances, dealing with the complaint would not be in the public interest. The Director also has the discretion to decide not to deal with a complaint in cases where, generally speaking, the complainant is not directly affected by the police policy, services or conduct: s. 60(5) and (6).
[36] Section 60(2), discussed above, enables the Director to decide not to deal with a complaint [at para. 20] "made more than six months after the facts on which it is based occurred". The Director is required by the terms of s. 60(3) to consider a number of factors when deciding not to deal with a complaint filed after the six-month period. The Director must consider whether the complainant is a minor or a person with a disability, whether the complainant is or was subject to criminal proceedings relating to the events forming the basis for the complaint, and whether in the circumstances it would not be in the public interest to deal with the complaint.
[37] As these provisions indicate, the default scenario under the Act is that the Director is obligated to screen in a complaint for review and to have it dealt with in accordance with Part V unless one of the saving factors in s. 60 applies. The Director [at para. 11] "shall ensure that every complaint reviewed . . . is referred or retained and dealt with": s. 59(2) (emphasis added). But the Director [at para. 17] "may, in accordance with [s. 60], decide not to deal with a complaint": s. 60(1) (emphasis added). This default paradigm is significant, in my view, in determining whether and, if so, to what extent "discoverability" factors into the exercise of the Director's discretion not to proceed with a complaint. It also bears on the scope of the requirement to give reasons, which I deal with below.
[38] Although the six-month period provided for in s. 60(2) is often loosely referred to as a "limitation period", the parties all agree that it is not a limitation period in the formal legal sense. The Divisional Court adopted that interpretation as well, stating, at para. 35:
The six month period referred to in s. 60(2) is not a limitation period, but rather a guideline -- a point in time at which the Director may wish to consider not dealing with the complaint, depending on various factors including [page583] the reasonableness of the delay and the specific factors the Director is directed to take into account under s. 60(3). All counsel at the hearing essentially agreed with that interpretation.
[39] Although the parties agree that s. 60(2) does not contain a limitation period, they have differing views on where that interpretation leads them. Mr. Wall argues that the six-month period is "a presumptive period that must yield to the interests of justice and the public interest". The Director says it is not a limitation period, but "simply provides the Director with the discretion to screen in a complaint that has been received by his office six months after the facts on which the complaint was based occurred". The Director submits that he is not mandated to take into account notions of discoverability in exercising his discretion not to screen in the complaint. In doing so, he adopts an analysis that leans towards treating s. 60(2) as a limitation period.
[40] The Director submits that nothing in the language of s. 60(2) or in the provisions of s. 60(3) outlining the factors the Director is to consider in exercising his discretion to screen in the complaint or not to do so, mandates that he take into account whether or not six months have elapsed since the complainant knew or ought to have known that he or she had grounds for a complaint. He concedes, however, that he has discretion to consider whether discoverability in that sense is a factor in the appropriate case.
[41] The Director seeks to rely on the principle of implied exclusion to argue that if the legislature had intended discoverability to apply, it would have said so expressly. That principle is explained by Ruth Sullivan in Sullivan on the Construction of Statutes, 6th ed. (Markham, Ont.: LexisNexis Canada, 2014), at 8.90, as follows:
An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature's failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. . . . The force of the implication depends on the strength and legitimacy of the expectation of express reference. The better the reason for anticipating express reference to a thing, the more telling the silence of the legislature.
[42] In this vein, the Director points out that s. 4(1) of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B expressly states that "a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered". Counsel points to s. 96 of the Employment Standards Act, 2000, S.O. 2000, c. 41 in support of the argument that [page584] where discoverability was not meant to apply, the legislature did not include it.
[43] The Director also relies on the decision of the Alberta Court of Appeal in Engel v. da Costa, [2008] A.J. No. 422, 2008 ABCA 152, 429 A.R. 184, leave to appeal to S.C.C. refused 2008 48616 (SCC), [2008] S.C.C.A. No. 284, 460 A.R. 400n. There, the court considered a provision in the Alberta Police Act, R.S.A. 2000, c. P-17, s. 43(11), dealing with complaints made more than one year after the events on which they were based. The court concluded, at para. 31, that "[d] iscoverability is not a principle which must necessarily apply to complaints under s. 43 of the Police Act".
[44] I do not find these submissions persuasive in the context of the Ontario legislation. First, it is agreed that s. 60(1) of the Police Services Act does not provide for a limitation period. It is therefore unnecessary to be as concerned with shoring up the goals of finality underpinning limitation period legislation. Second, s. 60(2) expressly provides the Director with discretion -- the Director "may decide not to deal with a complaint" -- which implies in itself a more flexible approach to screening post-six-month complaints in or out (emphasis added). The legislation considered in Engel is quite different: it requires the decision maker to dismiss a late complaint -- "shall dismiss any complaint that is made [outside of the time period]" (emphasis added). Third, even if the principle of implied exclusion is applicable, I am satisfied, for the reasons outlined below, that the language of the Act gives rise to little expectation that discoverability principles were to be excluded by implication.
[45] It is true that s. 60(3), prescribing the factors the Director is to consider when exercising his or her discretion to screen in a complaint post-six months, does not specifically refer to discoverability principles. However, it would be odd -- given that s. 60(2) does not provide for "a limitation period", and given the default paradigm in the scheme favouring complaints being dealt with -- if the legislature intended to exclude discoverability principles from the Director's consideration. In my view, there is nothing expressed or implied in the language of the Act to support such an intention. Indeed, s. 60(3)(c) requires the Director to consider "whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with" . The Director has a discretion, but it is not an unfettered discretion. To the contrary, it is a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness.
[46] Complaints regarding police misconduct raise issues that are important to society, both from the perspective of the [page585] complainant and that of the police services. It is generally in the public interest that complaints which are not frivolous or vexatious or made in bad faith -- grounds upon which any complaint, timely or not, may be screened out -- be reviewed. I am satisfied that the "public interest" factor the Director is required to consider under s. 60(3)(c) of the Act encompasses an obligation to consider discoverability issues in deciding whether or not to deal with a post-six-month complaint under s. 60(2).
[47] For these reasons, I would not give effect to the Director's argument that the Divisional Court erred by importing notions of "discoverability" as a factor to be considered in the discretionary s. 60(2) exercise.
Reasons
[48] The Divisional Court concluded (a) that the Director had failed to give "reasons" as required by s. 60(7); and (b) in any event, that he had failed to provide Mr. Wall with reasons that complied with the principles of procedural fairness -- both leading to the added consequence that the decision was thus rendered unreasonable.
[49] There is no dispute that the Director is required to give reasons when deciding not to deal with a complaint. Section 60(7) dictates as much; it requires that the complainant is to be notified "in writing of the decision, with reasons" (emphasis added). The duty of procedural fairness at common law calls for as much as well.
[50] Nor is there any dispute that what will constitute adequate reasons will vary with the context and nature of the decision being made. The debate revolves around the scope and extent of the "reasons" requirement in the context of the Director's decision not to deal with a complaint under s. 60.
[51] The Director submits that he was making a screening decision rather than a full administrative hearing decision, and that his notification letter to Mr. Wall complied with his duty to give reasons in those circumstances. He disputes what he says is the Divisional Court's conclusion that he was required to give "detailed" reasons in the screening context.
[52] I disagree. The statutory and common law prerequisite for reasons -- i.e., adequate reasons -- in this context acts as a balancing safeguard: the legislature has mandated that the Director "ensure that every complaint reviewed" is dealt with (s. 59(2)), but made this requirement subject to the discretion to screen out complaints in accordance with s. 60. The requirement in s. 60(7) to give "reasons" in writing may be viewed as a quid pro quo for the exception created by the screening out provision. [page586]
[53] Here, the Director's notification to Mr. Wall was -- for want of a better description -- underdeveloped and succinct. I have recited the contents of the February 2, 2012 decision in their entirety earlier in these reasons. For ease of reference, the operative portion consists of the following three sentences:
The OIPRD is aware of your concerns. S. 60(2) of the Police Services Act permits the Director not to deal with a complaint if the complaint is made more than six months after the facts on which it is based occurred. Taking all the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred.
[54] The Director argues that the Divisional Court erred in finding that he had given no "reasons" at all for his decision, that is, that the letter of February 2, 2012 was simply a notification in writing of the decision without any reasons for that decision. Although the court's decision can be read in that fashion, I would not go so far as to say the letter falls into the "no reasons at all" category. But it comes close. I do not think it matters to the reasons analysis, however, because the same factors emphasized by the court in stating that the letter constituted "no reasons" also undermine the adequacy of the reasons. I agree with the Divisional Court that in its brevity and lack of explanation, the letter is devoid of any reasons adequate to allow for judicial review of the Director's decision to screen out Mr. Wall's complaint relating to the higher ranks of the police service.
[55] Stating that "[t]he OIPRD is aware of your concerns", as the operative portion of the letter begins, is empathetic, but does not provide a reason for the decision. The reference in the second sentence to the six-month time frame provided for in s. 60(2) is merely a reference to the section of the legislation relied upon. While it may signal the direction which the reasoning path might follow, it is of little further assistance in that regard.
[56] Only the final sentence of the operative portion of the letter could conceivably qualify as reasoning and, with respect to it, I agree with the analysis of the Divisional Court, at paras. 47 to 48:
The [final] sentence states that:
-- "Taking all the information into consideration" (without any reference or explanation as to what information is referred to)
-- the Director has "decided not to proceed with the complaint" (which is the decision, not the reasons for the decision)
-- "as it was made more than six months after the facts on which it is based." [page587]
The only portion of the sentence that could even potentially be considered reasons is the clause "as it was made more than six months after the facts on which it is based." However, this last clause merely recites the fact that the complaint is more than six months after Mr. Wall's arrest. Essentially, the l[e]tter says, "I have the power to not deal with a complaint which is more than six months after the fact, and therefore that is what I am doing." Answering the question "Why?" with the statement "Because I can" is not providing reasons. It is the opposite of providing reasons.
(Emphasis added)
[57] The Director's discretion to deal with, or not to deal with, a complaint that brings s. 60(2) into play is not an unfettered discretion as previously noted. Section 60(3) mandates that "[i]n making a determination under subsection (2), the Independent Police Review Director" -- for purposes of this appeal -- "shall consider . . . (c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with" (emphasis added).
[58] Did the Director apply his mind to this mandatory consideration? We have no way of telling. Did it matter that a report from his own office contained evidence that higher ranking police officers, including possibly the chief of police, had given orders to lower ranks (which include the arresting officers in Mr. Wall's case) to effect illegal arrests? Surely this must have been of some concern to the Director, but we don't know. Did he consider whether clearing the air surrounding such potentially serious allegations was called for in the public interest? Or whether the "discoverability" factors at play raised questions of fairness and openness in that context? Again, the letter is silent.
[59] We are left only with the cursory and generic statement: "Taking all of the information into consideration, I have decided not to proceed with the complaint as it was made more than six months after the facts on which it is based occurred." That is not adequate to meet the Director's obligation to provide reasons in such circumstances.
[60] The Director argues that the Divisional Court's decision required him to provide "detailed reasons" when exercising his screening function under s. 60(2) and that this will unduly tax the resources of the OIPRD, given the number of complaints it receives. I reject this argument on two grounds. First, the court did not say at any point in its decision that the Director is required to give "detailed reasons". Indeed, the court recognized that, as the explanation for a screening decision, the Director's reasons are subject to less stringent requirements than might be the case at other levels of administrative decision-making. Second, potentially inadequate resourcing does not provide an escape from the Director's duty to give reasons and to comply [page588] with the requirements of procedural fairness. Concerns about resourcing are better directed elsewhere.
[61] After observing that the decision here, as a screening decision, did not attract the highest level of procedural fairness, the Divisional Court went on to state, however, at para. 42, that:
[I]t does terminate the ability of the complainant to pursue his complaint of mistreatment against the police, and does therefore affect his rights. The public interest mandate of the OIPRD and the importance of ensuring public confidence in the scheme for reviewing the conduct of police officers are factors supporting greater accountability and transparency than might be required of other "screening" type decisions. Further, since the Director is required by the legislation to take into account certain factors, providing reasons would serve to focus the Director's mind on those factors as well as reassure both the individual and the public that they have been taken into account. Since these decisions are reviewable on judicial review, it is essential for the court to see the reasoning process of the Director and the factors he took into account in making his decision. Finally, there is a specific legislative requirement to give reasons and therefore a legitimate expectation that reasons will be provided.
[62] I agree with this analysis. "Detail" is a function of the need to explain the exercise of a statutory power of decision; it is not a descriptor distinguishing between the types of reasons required. The Director's reasons for screening out a complaint under s. 60(2) of the Police Services Act need not be lengthy. They need not be complex. But, as the Divisional Court observed, they must at least answer the question "Why?" The complainant, and the court (for purposes of review), are entitled to know the rudiments of the explanation for why the complaint has been screened out. The Director's notification to Mr. Wall fails that test.
[63] Given the Director's failure to comply with his statutory and common law duties to provide adequate reasons, the Divisional Court also found that the decision was unreasonable. It did not meet the criteria set out in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9 for "justification, transparency and intelligibility within the decision-making process" (at para. 47). The Director's "reasons" do not provide any "justification" for the decision, the reasoning is not transparent and the basis of the decision is unknown. The decision says nothing about why the Director chose to exercise his discretion not to proceed in the context of this particular case. Again, the Divisional Court put it well, at para. 64:
I do not know why the Director made the decision that he did. I cannot say whether the decision falls within a range of acceptable outcomes, because I have no idea what prompted the decision. I do not know if the public interest was considered. I do not know if the principle of discoverability was taken into account. I do not know if the responsibility of senior officers other [page589] than Chief Blair was even averted to. I therefore find that the Dunsmuir criteria are not met. This decision cannot be said to be reasonable.
[64] The Director relies heavily on an earlier decision of the Divisional Court, Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.). However, Gismondi is not dispositive.
[65] First, it is distinguishable. Although the reasons provided by the Human Rights Commission in Gismondi were similarly succinct to those of the Director here, they were found to be adequate in the circumstances because they could be considered along with other material that was before the commission at the time of its decision -- including the submissions of the other party and the commission's case analysis report -- and the complainant had been advised that these materials would be considered by the commission in rendering its decision. That was not the case here. While the original OIPRD report existed, it did not address Mr. Wall's complaints about the higher ranks; to the contrary, as he submits, it was precisely because that report was incomplete that he filed his complaint.
[66] Second, the court made it clear in Gismondi that it would have been preferable had the tribunal given fuller reasons (thereby suggesting that in future cases, fuller reasons should be given). This admonition was not heeded in the present case.
[67] For these reasons, the Director's decision cannot stand.
Fresh evidence
[68] Finally, I do not accept the submission that requiring the Director to give fuller reasons will place an unacceptable burden on the resources of the OIPRD. As indicated above, potentially inadequate resourcing does not provide an escape from the Director's duty to give reasons and to comply with the requirements of procedural fairness, in my opinion.
[69] In an effort to buttress his point, the Director sought to introduce fresh evidence consisting of OIPRD reports, designed to demonstrate the economic impact of the requirement to give "detailed" reasons, including various statistics about the workload of the OIPRD. I would not admit this evidence. It does not comply with the test for the admission of fresh evidence, as set out in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126. Some, at least, could readily have been put before the Divisional Court, but was not, because the Director chose not to provide a record of proceedings as required by the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 10: see Endicott v. Ontario (Independent Police Review Office), [2014] O.J. No. 2189, 2014 ONCA 363, 373 D.L.R. (4th) 149. In any event, the fresh evidence is not [page590] particularly relevant or likely to affect the result of the appeal because, as noted above, the Divisional Court did not require the Director to provide "detailed reasons".
Costs
[70] The Divisional Court ordered that the Director pay costs to Mr. Wall. The Director submits that it erred in making that determination and, in any event, that the costs awarded -- $20,000 -- were excessive.
[71] I would not give effect to either of these submissions.
[72] As he did below, the Director argues that this is public interest litigation and that he was required to participate "because [the litigation] raised issues of first instance for the Divisional Court regarding [the Director's] constituent statute and involved significant and novel legal issues". The participation of a public party in such situations benefits the public generally. Further, Mr. Wall's counsel were acting on a pro bono basis and there is therefore no hardship to him in bearing his own legal costs. The proper order in such circumstances is for each party to bear their own costs, the Director concludes.
[73] The Divisional Court recognized these considerations, yet exercised its discretion to order costs in favour of Mr. Wall. I see no error in principle or in law in this disposition.
[74] The Director was an adversarial litigant in the process even though he had a public interest mandate to pursue. At the same time, the public generally had an interest in learning more about what may have gone wrong with policing at the higher levels in relation to the G20 summit, and it was Mr. Wall who successfully pursued that issue. And did so with the assistance of pro bono counsel.
[75] As the Divisional Court said, at para. 88:
Mr. Wall is a private citizen. The law firm of Ruby Shiller Chan Hasan has acted for Mr. Wall in this matter on a pro bono basis, with their only chance of any recovery being a cost award in the discretion of the court. The issues involved in this proceeding are complex. Mr. Wall would not have been able to present his case effectively without the able assistance of his counsel. It is of considerable benefit to the public and to this court that public interest issues of this nature be brought forward. Unless firms such as this one are prepared to assist, many issues of importance to the public generally and also to specific individuals simply could not proceed. This is an access to justice issue. In my view, the law firm should be entitled to recover costs in the normal course, on the same basis as is granted to counsel for clients with significant corporate interests every day in our courts.
[76] There is no basis for interfering with that conclusion. [page591]
[77] The Director also contests the amount awarded -- $20,000. However, the Divisional Court reviewed the law firm's bill of costs including the division of labour between senior and junior counsel. It made a downward adjustment from the nearly $28,000 claimed on the basis of some duplication of time. I agree that $20,000 represented "a fair and reasonable award for costs given the public nature of the respondent, the time spent by counsel, the nature of the case, the complexity of the issues and the public interest in encouraging experienced and competent counsel to take on these kinds of cases" (at para. 89).
Disposition
[78] I would therefore dismiss the appeal, affirm the decision below, and remit the matter to the Director for reconsideration in accordance with para. 2 of the order of the Divisional Court. I note that the Director's counsel assured us that the Director will reconsider as directed, should that be the case, as it is.
[79] While I would grant leave to appeal the costs award, I would dismiss the appeal as to costs as well.
[80] Mr. Wall is entitled to his costs of the proceedings in this court, fixed in the amount of $13,500, all inclusive.
Appeal dismissed.
APPENDIX
Police Services Act, R.S.O. 1990, c. P.15
59(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.
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.
(2) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if the complaint is made more than six months after the facts on which it is based occurred.
(3) In making a determination under subsection (2), the Independent Police Review Director shall consider, [page592]
(a) whether the complainant is a minor or is under a disability within the meaning of the Accessibility for Ontarians with Disabilities Act, 2005;
(b) whether the complainant is or was subject to criminal proceedings in respect of the events underlying the complaint; and
(c) whether, having regard to all the circumstances, it is in the public interest for the complaint to be dealt with.
(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:
The complaint is frivolous or vexatious or made in bad faith.
The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.
Having regard to all the circumstances, dealing with the complaint is not in the public interest.
(5) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public about a policy of or service provided by a police force if the policy or service did not have a direct effect on the complainant.
(6) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public about the conduct of a police officer if the complainant is not one of the following:
A person at whom the conduct was directed.
A person who saw or heard the conduct or its effects as a result of being physically present at the time and place that the conduct or its effects occurred.
A person who,
i. was in a personal relationship with a person described in paragraph 1 at the time that the conduct occurred, and
ii. suffered loss, damage, distress, danger or inconvenience as a result of the conduct.
- A person who has knowledge of the conduct, or has in his or her possession or under his or her control anything relating to the conduct, if, in the Independent Police Review Director's opinion, the knowledge or thing constitutes compelling evidence that the conduct complained of is misconduct as defined in section 80 or unsatisfactory work performance and the evidence would likely be admissible in a court proceeding.
(7) If the Independent Police Review Director decides not to deal with a complaint . . . in accordance with this section, he or she shall notify the complainant and the chief of police to which the matter relates in writing of the decision with reasons[.]
Notes
1 The Hon. Patrick J. LeSage, Q.C., Report on the Police Complaints System in Ontario (Toronto: Ontario Ministry of the Attorney General, 2005).
2 "Discoverability" is the principle that a time limit ought not to run against a complainant until that period has passed following the moment when the complainant knew, or ought reasonably to have known, that he or she had the basis for a complaint.
3 The particulars of these mechanisms are not important for the purposes of the appeal.
End of Document