COURT OF APPEAL FOR ONTARIO

CITATION: Ottawa Police Services v. Diafwila, 2016 ONCA 627

DATE: 20160816

DOCKET: C60683

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Ottawa Police Services

Applicant (Respondent)

and

Constable Emmanuel Diafwila

Respondent (Appellant)

Paul Champ, for the appellant

Robert E. Houston, for the respondent, Ottawa Police Services

Benson Cowan and Melanie Goren, for the respondent, Ontario Civilian Police Commission

Heard: January 26, 2016

On appeal from the judgment of the Divisional Court (Justices Thomas R. Lederer and James A. Ramsay, Justice Catherine D. Aitken dissenting) dated March 10, 2015, with reasons reported at 2015 ONSC 931.

Miller J.A.:

I. Overview

[1] The appellant was hired by the Ottawa Police Services (“OPS”) in 2006 as a fourth class constable. He received annual performance reviews in 2007 and 2008, and was promoted to third and then second class constable. Nevertheless, there were concerns about his technical policing skills and his ability to make sound, independent decisions in the patrol setting. Some of his colleagues at the OPS voiced concerns that his shortcomings not only jeopardized his own physical safety, but the safety of his colleagues and the public.

[2] The OPS made efforts to bring the appellant up to an adequate standard of policing, implementing a Performance Improvement Plan (PIP) that included remedial course work and hundreds of hours of personal coaching. Although the appellant invariably did well in his course work, his performance on patrol remained problematic. Subsequently, the OPS removed him from patrol and assigned him to an information desk for 11 months, before a reintroduction to patrol that the appellant characterizes as a foreordained failure.

[3] Following an investigation, the Chief of the OPS brought a Notice of Chief’s Complaint dated December 23, 2010, charging the appellant with unsatisfactory work performance pursuant to the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”) and its Regulations. A hearing was held before a hearing officer acting as the Chief’s delegate, pursuant to s. 76(9) of the Act. After 24 days, and hearing from 18 witnesses, the Hearing Officer found the appellant guilty of unsatisfactory work performance. The Hearing Officer ordered that the appellant be given 7 days to voluntarily resign from the OPS, failing which he would be dismissed.

[4] The appellant appealed the decision of the Hearing Officer to the Ontario Civilian Police Commission (the “Commission”) which allowed the appeal and set aside the decision of the Hearing Officer. The decision of the Commission was then set aside by the Divisional Court on judicial review. The Divisional Court ordered the matter to be remitted back to the Commission for a rehearing of the appeal. The appellant appealed to this court.

[5] I would allow the appeal, which would have the effect of reinstating the appellant. For the reasons set out below, the Divisional Court erred in setting aside the decision of the Commission. Although the appellant succeeds in this appeal on administrative law grounds, I do not pronounce on the ultimate issue – his fitness to serve as a police officer. That remains an on-going matter within the purview of the OPS, for the OPS to address according to the policies that it created but did not, in this instance, follow.

II. Background

(1) The Appellant’s Work History with the OPS

[6] The appellant joined the OPS as a probationary constable in 2006 and, as with all probationary constables, performed 500 hours of probationary service with a coach officer. The appellant’s supervisors determined that, unlike most other constables, the appellant was not yet ready for independent patrol at the end of his probationary service, and assigned him an additional 100 hours of coaching. The appellant completed the additional coaching in January 2007 and was then assigned to independent patrol. He patrolled independently for two years, during which time he was promoted to third class constable (2007) and then second class constable (2008).

[7] As required by the Act and the Regulations promulgated thereunder, the OPS established and maintains a performance review policy. That policy requires the OPS to maintain a daily tracking log for each officer, and conduct an annual performance review. The interpretation of that policy is a critical issue on this appeal, and is explained in greater detail below.

[8] In January 2009, the appellant was told that he would be placed on a performance improvement plan (“PIP”) due to various deficiencies in his performance. There was some delay in presenting the appellant with the PIP. When the appellant was eventually shown the PIP in March 2009, he was surprised by many of the allegations of poor performance.

[9] The PIP included assigning a coach officer for the appellant, which is an unusual degree of remedial instruction for a non-probationary constable. The initial assignment for coach officer was less than ideal, culminating in the appellant alleging harassment (although stopping short of bringing a formal complaint) and the OPS assigning different coach officers from May 2009.

[10] By June 2009, the appellant was still not performing at the required level. On July 22, 2009 he was removed from patrol duties and assigned to the Information Desk, where his work was of an administrative nature. He performed well in that role. He was, however, anxious to return to patrol and pressed for reassignment. Nearly a year later, the OPS agreed to return him to patrol but remained concerned about his patrol skills. To address his skill deficit, in June 2010 the OPS placed him on a Personal Learning Plan that was developed by the Professional Development Centre of the OPS. Pursuant to the Personal Learning Plan, he was provided with courses that were developed to address his specific training needs, including training in “real life” scenarios. As always, he performed well in his courses. In the fall of 2010, the appellant returned to patrol duties with the support of a coach officer.

[11] In a letter dated November 19, 2010 from Superintendent Daniel Delaney, the appellant was told that the PIP was no longer in effect and had been superseded by the Personal Learning Plan. The letter indicated that the appellant had been placed with a new coach officer and would receive 250 coaching hours to ready him for independent patrol. The coach officer was to track the appellant’s performance and provide immediate feedback, and he was to receive regular progress reports after 10, 20 and 25 shifts.

[12] The appellant began working with the new coach officer, Constable Varga, on October 27, 2010.

[13] After 200 hours of coaching, however, the OPS gave up. The appellant was informed soon after, on December 19, 2010, that he would not be assigned to independent patrol. On December 22, 2010, he was placed on administrative leave, effective the following day.

[14] The appellant was provided with a Notice of Chief’s Complaint against him. That notice marked the start of these proceedings. A subsequent investigation led to the charge of unsatisfactory work performance being laid against the appellant on November 15, 2011.

(2) The Regulatory Regime

[15] As the interpretation of the regulatory regime governing unsatisfactory work performance by a police officer is central to this appeal, I will set out the applicable regulations and policies below, prior to canvassing the decisions of the Hearing Officer, the Commission, and the Divisional Court.

[16] Section 76 of the Act provides the authority for a chief of police to bring a complaint about the conduct of a police officer and start an investigation. If, at the conclusion of the investigation, the chief of police believes on reasonable grounds that the police officer’s conduct constitutes misconduct or unsatisfactory work performance, s. 76(9) requires the chief of police, or his or her delegate, to hold a hearing.

[17] If the unsatisfactory work performance charge is proved at the hearing on “clear and convincing evidence”, the chief of police is authorized to impose one of the penalties – ranging from temporary suspension to immediate dismissal – enumerated in s. 85.

[18] Further direction on the procedures for assessing police officer work performance is provided by the General Regulation, O. Reg. 268/10 (the “Regulation”), which requires a chief of police to establish work performance policies and follow those policies:

29. (1) Every chief of police shall establish policies for the assessment of police officers’ work performance.

(2) The chief of police shall make the policies available to the police officers.

(3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance,

(a) the police officer’s work performance shall have been assessed in accordance with the established procedures;

(b) the chief of police shall advise the police officer of how he or she may improve his or her work performance;

(c) the chief of police shall accommodate the police officer’s needs in accordance with the Human Rights Code if the police officer has a disability, within the meaning of the Human Rights Code, that requires accommodation;

(d) the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer’s work performance; and

(e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance.

[19] The chief of the OPS established two policies for assessing police officers’ work performance, as required by s. 29(1): Policy 3.19, “Performance Review”, and Policy 3.14, “Unsatisfactory Work Performance”.

[20] The Performance Review policy establishes an annual performance review process consisting of three steps: (1) an initial interview, (2) on-going tracking, and (3) a performance review at the end of each review period. It contemplates a Performance Improvement Plan (PIP) for members with substandard performance. It also provides that unsatisfactory work performance “shall be dealt with in accordance with [the] Unsatisfactory Work Performance Policy”.

[21] The Unsatisfactory Work Performance Policy provides, in part:

3. After identifying unsatisfactory work performance, in consultation with the member and where appropriate with Human Resources, [Supervisors shall] establish and implement a plan, consistent with Ontario Regulation 123/98 [now O. Reg. 268/10], to support the member in achieving satisfactory performance.

4. While implementing the Unsatisfactory Work Plan [Supervisors shall];

a. Ensure that the member understands the objective of his performance and where improvement is required

b. Ensure that there are no barriers impeding the member[’]s work performance

c. Make every reasonable effort to ensure that the member receives appropriate training, coaching or mentioning [sic] to assist him/her in achieving the desired standard

d. Continually update the evaluation of the member’s work performance

e. Continually update the member on their progress towards meeting the standard

f. Assess the placement of the member in cases where the member is unable to apply the job knowledge and skills, after receiving appropriate training, considering as possible options rotation of duties or a lateral transfer

g. Ensure that the member is aware of the support services available to them, when there is evidence that the member’s failure to achieve the desired standard is a result of personal problems

[22] As noted, the Notice of Chief’s Complaint setting out the complaint against the appellant was dated December 23, 2010. Following the requisite investigation, the appellant was served with a Notice of Disciplinary Hearing on November 23, 2011.

(3) The Proceedings

(a) The Hearing

[23] The s. 76(9) hearing took place before a hearing officer, in this case a retired superintendent, acting as delegate of the chief.

[24] At issue at the hearing were both: (1) the substantive issue of whether the OPS had provided clear and convincing evidence that the appellant’s performance as a police officer was unsatisfactory, and (2) the procedural issue of whether the OPS had satisfied the preconditions established in s. 29(3) of the Regulation before making the complaint and laying the charge of unsatisfactory work performance.

[25] The appellant argued that the OPS had not followed the Regulation in assessing his performance and instituting remedial training, particularly because many of the allegations against him were not documented in his tracking log or performance reviews, and because he was not told precisely what to do in order to satisfy the OPS.

[26] The Hearing Officer found the appellant to have been in an anomalous situation not directly governed by the Regulation: the appellant had exceeded the probationary period but was not yet ready for independent patrol. Accordingly, he found that “normal procedures for assessing performance would not readily apply” and concluded that the OPS “had to create a system” to observe, assess, and record the appellant’s performance “to assist him in overcoming the obstacles to his success.” He found that although the OPS had not followed its normal procedure in assessing the appellant, the appellant’s anomalous situation meant it was not required to do so. He concluded that the ad hoc procedures that the OPS implemented complied with the demands of procedural fairness:

[E]ven though one might argue that the strict requirements of the regulation were deviated from, the deviation did not result in any unfairness to the officer. He was given ample opportunity to rectify any performance deficiencies, but failed to do so. He was provided with a remarkable amount of coaching, mentoring and one-on-one feedback over a significant period of time; but to no avail.

[27] The Hearing Officer determined that the OPS followed a fair procedure for evaluating the appellant:

In short, it is my view that the process undertaken by the Ottawa Police Service – although far from perfect – provided [the appellant] with an abundance of opportunities to:

• know the nature of performance improvements required

• obtain the assistance and advice of experienced officers and trainers

• clarify with some specificity the nature of improvement required, and

• demonstrate his ability to perform the required tasks of an independent patrol officer over a significant period of time[.]

[28] With respect to the substantive allegations, the Hearing Officer concluded that despite being given “an extraordinary length of time and countless resources” to assist him, the appellant was “simply not suited to many if not most aspects of policing” and constituted a risk to himself, other members of the OPS, and the public. The Hearing Officer concluded that the appellant was guilty of unsatisfactory work performance and ordered that he be dismissed from the OPS if he did not first resign within seven days.

(b) Appeal to the Ontario Civilian Police Commission

[29] The appellant was successful on an appeal brought to the Commission under s. 87 of the Act.

[30] I will briefly set out the Commission’s powers under the Act before addressing its decision. The Commission is an administrative tribunal established by Part II of the Act. It has extensive powers and a broad regulatory and policy role with respect to the civilian oversight of policing. It not only adjudicates appeals from disciplinary hearings of police services, as in this case, but has direct investigatory powers and can hold first-instance misconduct hearings. Additionally, it has supervisory powers to oversee the adequacy of municipal policing, including approving the creation of municipal detention facilities (s. 16.1), requesting the assistance of the Ontario Provincial Police where a municipality is not providing police services or is providing inadequate services (s. 9), and resolving disputes between municipal councils and police service boards regarding police budgets (s. 39(5)).

[31] The Commission’s powers on appeal from a s. 76(9) decision are set out in s. 87(8) of the Act:

After holding a hearing on an appeal, the Commission may,

(a) confirm, vary or revoke the decision being appealed;

(b) substitute its own decision for that of the chief of police or the board, as the case may be;

(c) in the case of an appeal from a decision of a chief of police, order a new hearing before the chief of police under subsection 66 (3), 68 (5) or 76 (9), as the case may be; or

(d) in the case of an appeal from a decision of a board, order a new hearing before the board under subsection 69 (8) or 77 (7), as the case may be.

[32] This appeal was conducted on the record. The Commission characterized the standard of review as reasonableness for factual findings of the Hearing Officer, and correctness for the Hearing Officer’s interpretations of law. (It should be noted that before this court the Commission argued a different position on standard of review, which I will address later on in these reasons.)

[33] The Commission found the Hearing Officer’s interpretation of the Regulations to be in error, particularly his interpretation of s. 29(3), which addresses the bringing of a complaint about unsatisfactory work performance. The Commission held that the Hearing Officer committed an error of law in finding that the OPC was justified in departing from its policies because of the appellant’s circumstances.

[34] The Commission interpreted s. 29(3)(a) as establishing a precondition for bringing a complaint of unsatisfactory work performance: work performance must first have been assessed in accordance with established procedures. For the OPS, those procedures were established in Policy 3.19, the Performance Review policy. On this interpretation, the Regulation provided a two-step procedure:

The police service must strictly apply its performance review policy. Having done so, if the officer’s evaluation indicates unsatisfactory work performance, the service may proceed to the second step of applying the unsatisfactory work performance policy. The two steps are integral to the whole process of determining whether an officer’s performance issue rises to a level to justify initiating a chief’s complaint under Section 29(3).

[35] Consequently, the failure of the OPS to follow its own mandatory policies was “fatal to the implementation of a chief’s complaint”.

[36] The Commission found that the OPS failed to follow the Performance Review policy by:

(a) Not completing the mandated performance reviews for 2009 and 2010, including the initial interview, review of all daily tracking log entries, and conducting a formal performance review interview at the end of the cycle;

(b) Not ensuring that the appellant’s supervisors made regular consistent daily entries into the appellant’s Tracking Log;

(c) Not providing performance assessments to the appellant in writing;

(d) Not affording the appellant the opportunity for input, objection or comment on the notations, reports and memos of coach officers and supervisors at the relevant times of the occurrences; and

(e) Relying upon memos, notes, reports and verbal comments by coach officers, other officers and supervisors without ensuring that copies and information were made available to the appellant.

[37] The Commission also found that the OPS failed to follow Policy 3.19, the Unsatisfactory Work Performance policy by:

(a) Not complying with the section requiring completion of Performance Appraisals of the appellant for relevant years in issue, 2009 and 2010;

(b) Not complying with the section requiring consultation with the appellant in establishing and implementing a performance improvement plan; and

(c) Not ensuring that there were no barriers impeding the appellant’s work performance by not resolving the appellant’s workplace harassment complaint.

[38] The Commission also held that even if there had been no statutory requirement, it would have allowed the appeal on the basis that the ad hoc procedures that were established did not meet the requirements of procedural fairness.

[39] The Commission allowed the appeal and ordered that the appellant be reinstated as a second class constable.

(c) Divisional Court – Judicial Review of the Commission’s Decision

[40] On judicial review, the Divisional Court split (Aitken J. dissenting) in favour of granting the application for judicial review, setting aside the Commission’s decision, and remitting the matter back to the Commission for a rehearing of the appeal. Each member of the panel wrote separate reasons.

Standard of Review

[41] Although the Divisional Court returned three sets of reasons, it was unanimous on the standard of review to be applied by the Divisional Court to the decision of the Commission: the standard is reasonableness, both with respect to questions of fact and questions of law involving interpretation of the Commission’s home statute.

[42] The panel diverged, however, on the question of the appropriate standard of review for the internal appeal: that is, of the appeal to the Commission from the Hearing Officer’s decision. Both Ramsay J. and Aitken J. applied OPP v. Purbrick, 2013 ONSC 2276 (Div. Ct.), 307 O.A.C. 97, which held the standard of review of an internal appeal to the Commission to be reasonableness for questions of fact and correctness for questions of law. In that judgment, the Divisional Court noted that “[t]he role of the Divisional Court in reviewing decisions of the Commission is considerably more restricted than the role of the Commission in reviewing decisions of a Hearing Officer” (para. 14).

[43] Lederer J., however, questioned the soundness of this differential standard of review. He stated that the reasonableness standard should be applied to an appeal from the decision of a chief of police or designate on the basis that the Act and regulations also constitute the home statute of the chief of police, and the role of the Commission is to oversee the work of the chief of police rather than replace it.

Procedure – Failure to Comply with s. 29(3)

[44] On the question of whether the OPS followed the necessary procedures leading up to the making of a complaint, Ramsay J., with Lederer J. concurring, held that the Commission’s interpretation of the Regulation was unreasonable. He rejected the Commission’s interpretation of the Performance Review policy, which required entries be made in the tracking log every day, with all comments by supervisors being made available to the appellant contemporaneously.

[45] On Ramsay J.’s reading, annual performance reviews were not required in 2009 and 2010, having been superseded by the operation of the Unsatisfactory Work Performance policy in early 2009.

[46] Ramsay J. faulted the Commission for having “imposed a number of confusing and impossibly demanding pre-conditions that the law simply did not require” (para. 33). There was, he found, neither a failure to follow the statutory conditions nor a failure of procedural fairness.

[47] In her dissent, Aitken J. faulted Ramsay J. for unwittingly applying the standard of correctness while trying to apply the standard of reasonableness: interpreting the Act and Regulation as though he were a decision-maker of first instance, and measuring the Commission’s reasons against that result. Her approach to reasonableness review was “to determine whether the decision of the [Commission], considered as a whole, displays a line of analysis that would reasonably lead the [Commission], from the evidence before it, to the conclusion at which it arrived. In my view, it does” (para. 64).

[48] Beginning with the powers and duties of the Commission, and observing that deference is owed to decisions of the Commission, Aitken J. reviewed the decision of the Hearing Officer and the Commission, and came to the conclusion that the Commission’s interpretation of s. 29 is entitled to a high degree of deference, “considering part of the mandate of the [Commission] is to develop policies relating to police forces, and to provide oversight of the conduct of police services, police chiefs, and individual police officers” (para. 99). She held that its interpretation of s. 29 respected principles regarding statutory interpretation, and was coherent and consistent with earlier jurisprudence about the mandatory nature of the conditions set out in s. 29.

III. Issues

[49] The Appellant raises the following issues on appeal:

1. The correct standard of review for the internal appeal to the Commission;

2. The majority of the Divisional Court erred in its application of the reasonableness standard to the decision of the Commission in respect of the interpretation and application of the Regulation and OPS Policies 3.14 and 3.19, specifically with respect to:

a. The finding that the appellant had been assessed in accordance with Policy 3.19, and that the OPS was not required to follow Policy 3.14;

b. The finding that an ad hoc approach to training satisfied the requirements of the Regulation; and

c. The finding that the OPS provided the appellant with a reasonable opportunity to improve.

3. The majority of the Divisional Court erred in its reasonableness analysis by finding that the Commission erred in concluding that the Hearing Officer violated natural justice by not referring to material evidence of the appellant.

IV. Analysis

(1) Standard of Review

[50] At this stage in the proceedings, there has been an appeal to the Commission, a judicial review by the Divisional Court of the Commission’s decision, and now an appeal of that judicial review. The standard of review for each of these decisions must be assessed individually.

[51] On this appeal, this court effectively steps into the shoes of the Divisional Court to determine whether the Divisional Court identified the appropriate standard of review and applied it properly (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-47). There is no deference owed by this court to a decision of the Divisional Court on judicial review.

[52] With respect to the judicial review of the Commission’s decision, as each member of the Divisional Court panel agreed, the standard of review that applied to the decision of the Commission is reasonableness on questions of fact, mixed fact and law, and on those questions of law related to the interpretation of the Commission’s home statute.

[53] The only question is the standard of review applicable by the Commission in reviewing the decision of the Hearing Officer. Both Ramsay J. and Aitken J. concluded the standard is reasonableness for questions of fact and mixed fact and law, and correctness for questions of law. Lederer J. (dissenting on this point) found this to be ‘peculiar’:

In substance, it means that in considering issues of law, the Commission is bound to be sure that a hearing officer is correct, but in doing so, need only be reasonable.

If the Court need only determine whether the findings of the Commission fall within the range of possible or acceptable outcomes, there is no impetus for the Commission to look to determine if the Hearing Officer was correct. It need only find that his or her answer is one of the acceptable alternatives. If it is, the Commission will be upheld by this court. In such a case, the requirement that the Hearing Officer be held to the standard of correctness would be meaningless. [Paras. 51-52.]

[54] To resolve this apparent paradox, Lederer J. proposed that the Hearing Officer and the Commission both be subject to the standard of reasonableness on appeal or review.

[55] I would reject Lederer J.’s proposal.

[56] First, it is important to note that Lederer J.’s objection is restricted to those circumstances where more than one reasonable answer is available to a question of statutory interpretation. This is not always the case, as Moldaver J. explained in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, para. 38: “[w]here the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable”. Questions of statutory interpretation will admit of a single reasonable answer where, for example, legislation posits a clear rule whose interpretation does not depend on the application of vague or open-ended criteria. By contrast, multiple reasonable interpretations may be possible where legislation incorporates vague standards that must be rendered concrete by the decision-maker in particular circumstances. In the recent decision of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (at para. 34), Abella J. draws on the example given in Agraira, where the Minister was required to interpret legislation requiring that decisions be made in the “national interest”. The interpretation required to determine whether an option satisfies the standard of the national interest is unlike the interpretation needed to determine whether, for example, a driver has exceeded a speed limit. The latter question will have a single correct answer. The former likely will not, as the answer will be a function of the decision-maker’s determination of what constitutes the national interest, a multi-faceted concept.

[57] Second, there is nothing peculiar about a reviewing court being required to defer to a tribunal’s assessment of whether a decision-maker answered a question correctly. In the case before us, it falls to the Commission to determine whether the legislative scheme was correctly interpreted by the hearing officer. The function of the reviewing court, under reasonableness review, is different: “(i)n judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.” Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[58] The objection that the reasonableness standard results in “no impetus for the Commission to look to determine if the Hearing Officer was correct”, rests on an assumption that a deferential standard of review creates a standing risk that a tribunal will not fulfill its statutory mandate. That decision-makers can only be made accountable through the most intense level of judicial scrutiny is a questionable proposition. But even if that assumption were borne out, the standard of review by which the Commission is made answerable is not settled by the efficacy of the arrangement, but is a matter of discerning the intention of the legislature as expressed through legislation (Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, 2012 SCC 12, at para 30; Dunsmuir, at para. 29).

[59] As the Commission argues, the standard of review that it must apply is to be determined from the language of the enabling legislation: “[i]n considering the jurisdiction of tribunals, the Supreme Court of Canada has adopted a functional and structural approach by looking to the function which the legislature has asked the tribunal to perform and to the powers and processes it has furnished to it” (College of Physicians and Surgeons of Ontario v. Payne (2002), 2002 CanLII 39150 (ON SCDC), 219 D.L.R. (4th) 350 (Ont. Div. Ct.), at para. 18).

[60] The Commission errs, however, in its submission that a statutory appeal from the Hearing Officer is in reality a hearing de novo or a ‘rehearing on the merits’, notwithstanding that it is (both in the ordinary course and in this instance) a hearing on the record. Contrary to Purbrick and some of the Commission’s own decisions, it now argues that it owes no deference to the decision of the Hearing Officer on questions of either fact or law. In support of this position, it points to its statutory powers under the s. 87(5) and (8) of the Act, which enable it to hear evidence and to substitute its decision for that of the Hearing Officer.

[61] I see no justification for departing from the standard affirmed by the Divisional Court in Purbrick. The Commission’s power to “receive new or additional evidence on appeal as it considers just” does not modify its need to defer to the Hearing Officer’s findings of fact where no new evidence has been received. Contrary to the submissions of the Commission, the existence of a statutory power to hold a de novo hearing does not mean that in instances where that power is not exercised, the standard of review is correctness. The Commission is to start with what has already been done and defer to the decision-maker’s factual findings and not waste the fruits of the proceeding.

[62] However, I would accept the Commission’s position, consistent with Purbrick, that it owes no deference on questions of law. It is true that the Regulation is the home statute of both the Commission and the Hearing Officer, and that both receive their powers from the same statute, but there are significant institutional differences between the two bodies. In addition, the Chief of Police lacks expertise in the application of general legal principles, such as the requirements of procedural fairness. By contrast, members of the Commission are generally appointed through a competitive, merit-based process where the criteria to be applied in assessing candidates include experience, knowledge or training in the relevant subject matter and legal issues (Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sch. 5, s. 14(1)). Finally, a purpose of the Act is to provide for independent civilian oversight of police. Significantly, the Hearing Officer is not independent from the Chief of Police, at whose direction both the investigation and the hearing are ordered. That oversight would be greatly reduced if the Commission were required to defer to a chief of police or his delegate on questions of law.

[63] In conclusion, I would affirm the standard of review set out in Purbrick.

(2) The Interpretation and Application of the Regulation and Policies

[64] Although the appellant articulates three separate substantive grounds of appeal, they are subsumed in the question of whether the Divisional Court erred in holding that the Commission was unreasonable in deciding that the chief of police failed to follow a mandatory precondition to bringing a complaint against the appellant.

[65] As all three members of the Divisional Court panel stressed, the subject of the judicial review was not the decision of the Hearing Officer, but the decision of the Commission. And as all agree, the standard of review for that decision is reasonableness.

[66] A standing temptation for a court conducting reasonableness review is to place itself in the position of the decision-maker of first instance and compare the decision it would have made against the decision actually made at first instance. With this methodology, any departure from the reviewing court’s hypothetical decision is bound to appear unreasonable. The function of the reviewing court is instead to determine whether the tribunal’s decision contains an analysis that moves from the evidence before it to the conclusion that it reached, whether it is the one the Court would have reached.

[67] Although the majority acknowledged that the Commission’s reasons were intelligible and transparent, it objected that the Commission’s interpretation of the Regulation was “impossibly demanding” and on that basis “not justifiable” (para. 33). The Commission’s interpretation, recall, is that the OPS was obligated to apply its performance review policy strictly and, only having done so, and only where indicated by the performance review, proceed to the application of the unsatisfactory work performance policy. The OPS is not authorized to bring a complaint outside that framework, even if (a point which is contested by the appellant) it may appear that the alternative framework that it created was entirely to the benefit of the appellant.

[68] Justice Aitken’s account of the Commission’s reasons, at para. 92 of the Divisional Court reasons, is sound:

The OCPC determined, as a matter of law, that the provisions ins. 29 of O. Reg. 268/10 were mandatory. That required the Chief of Police to establish policies for the assessment of police officers’ work performance and to have assessed the officer’s work performance in accordance with the established procedures before the Chief could make a complaint against the officer of unsatisfactory work performance. The OCPC found that, as a matter of law, “established procedures” in s. 29(3)(a) referred to “those procedures contained within the policies of the police service” and that, once established, those policies and their application became mandatory preconditions to the Chief initiating a complaint against an officer for unsatisfactory work performance. According to the OCPC, “it must be recognized that such policies create employment standards which govern the conduct of all service personnel” and that “[a] failure to follow those policies vitiates any process initiated to dismiss an officer for unsatisfactory work performance”. [Citation omitted. Emphases in original.]

[69] The Commission was not unreasonable in finding that the Hearing Officer misinterpreted the law when he determined that the OPS was entitled to depart from the strict adherence to its policies and apply an ad hoc procedure. The Commission is entitled to a high level of deference and the majority of the Divisional Court erred in granting the application and setting aside the decision of the Commission.

(3) Violation of Principles of Natural Justice

[70] The appellant’s third ground of appeal is that the Divisional Court erred in its reasonableness analysis by finding that the Commission erred in concluding that the Hearing Officer violated natural justice by not referring to material evidence of the appellant. This ground of appeal was not strenuously pursued in argument and, given the conclusion reached on the second ground of appeal, it is unnecessary for me to address it.

V. Disposition

[71] I would allow the appeal and restore the decision of the Commission. The appellant is entitled to his costs of the appeal payable by the OPS in the agreed-upon amount of $15,000 inclusive of disbursements and HST.

Released: “KF” AUG 16 2016

“B.W. Miller J.A.”

“I agree. K. Feldman J.A.”

“I agree. J.C. MacPherson J.A.”