Ontario Supreme Court

Bruce v. Ontario Provincial Police

Date: 2000-12-11

In the Matter of the Judicial Review Procedure Act, R.S.O. 1990, Ch.J.1

In the Matter of an Application for Judicial Review of a Decision of the Commissioner of the Ontario Provincial Police

Steven Terrence Bruce, Applicant

and

Commissioner of the Ontario Provincial Police, Gwen Boniface, The Ontario Provincial Police, The Solicitor General of Ontario and Her Majesty the Queen in Right of Ontario, Respondent

Ontario Superior Court of Justice (Divisional Court) Southey, Herold, Howden JJ.

Heard: October 23-24, 2000

Judgment: December 11, 2000

Docket: 101/2000

Counsel: George S. Glezos, for Applicant. Anita L. Lyon, for Attorney General.

Judgment

The judgment of the court was delivered by Howden J.:

[1] This is an application for judicial review of the termination by the Commissioner of the Ontario Provincial Police (O.P.P.) of the appointment of the applicant as a First Nations Constable by letter dated October 26, 1999.

[2] The applicant Steven Terrence Bruce was appointed as a First Nations Constable by the Commissioner of the O.P.P. on May 8, 1993. He had been hired as a Band Constable and recommended for the position of First Nations Constable by the governing council of the Webequie First Nation by resolution of January 22, 1993. He continued to provide police services at Webequie in Northern Ontario after his appointment by the Commissioner until November, 1993. By resolution of February 21, 1994, the band council purported to dismiss him, “as a result of (his) conduct towards members of the Webequie First Nation”. On June 24, 1994, Commissioner O’Grady notified the applicant of the termination of his appointment due to conduct “not consistent with your appointment as a First Nations Constable”.

[3] This purported termination was the subject of an application to the Divisional Court for judicial review in May, 1998. The Divisional Court quashed the termination. The Court’s endorsement reads in part:

But the statutory requirement that Constable Bruce be given ‘reasonable information’ was not met. There is insufficient detail in the Commissioner’s letter of March 8, 1994 of the alleged misconduct or about the Council’s resolution to constitute ‘reasonable information’ with (sic) the meaning of the statute.

Procedural fairness demands, at the very least, reasonable notice of the allegations of misconduct and an opportunity to respond thereto.

Proper notice would include an outline of the allegations against Constable Bruce and/or copies of the documents supporting the allegations and the rationale underlying the Band’s resolution.

The Band Council’s position ought not to compromise Constable Bruce’s fundamental rights to procedural fairness and to natural justice.

The statutory conditions precedent to termination were not met. The termination will be quashed and the matter remitted to the commissioner.

[4] The application now before this Court arises from the actions of Commissioner Boniface in terminating the applicant’s appointment on October 26, 1999. Constable Bruce requests judicial review of the 1999 termination of his appointment as a First Nations Constable and orders to quash the termination and (in the nature of mandamus) to compel payment of his wages and other benefits from June 24, 1994 to date. During argument, counsel for the applicant conceded that the mandamus request could not succeed, but submitted that a declaration of entitlement to wages owing to date be granted instead. He relied on the decisions of the Divisional Court [(1980), 1980 (ON CA), 31 O.R. (2d) 195 at 196 (Ont. C.A.)] and the Court of Appeal in Nicholson v. Haldimand-Norfolk (Regional Municipality) Commissioners of Police (1980), 31 O.R. (2d) 195 (Ont. C.A.) and 202 [(1980), 31 O.R. (2d) 195 at 202 (Ont. C.A.)]. The applicant alleges that the wages and benefits are owed him by any one of the respondents Solicitor General of Ontario, O.P.P. or Her Majesty the Queen in Right of Ontario or all of them.

[5] On the primary issue, counsel for the applicant argued that the Commissioner failed to fulfil her statutory duties:

(i) by not consulting with the Band Council and inquiring into the conduct alleged to have caused loss of confidence in Constable Bruce, and,

(ii) by failing to provide him with an outline of the case against him sufficient to allow him to respond to it.

[6] Counsel for the Attorney General submitted that the application should be dismissed because the Commissioner’s decision to terminate in 1999, unlike the earlier decision of the prior Commissioner, was based solely on Constable Bruce’s loss of employment as a Band Constable and the consequent lack of any further need for the policing authority accompanying the position of First Nations Constable. Full notice of the reason for termination was given as well as ample time from August 10 until Sept. 21, 1999 to respond.

[7] Counsel for the Attorney General further submitted that the affidavit of Constable Bruce filed in support of his application should be struck because there are no exceptional circumstances to warrant supplementing the information which was before the Commissioner when she made the impugned decision. The authority cited by counsel for this position was Peel Condominium Corp. No. 199 v. Ontario New Home Warranties Plan (1989), [1989 (ON SC)], 69 O.R. (2d) 438 (Ont. Div. Ct.) at p.446, which in turn relied on the decision of Morden, J.A. in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), [1980 (ON CA)], 29 O.R. (2d) 513 (Ont. C.A.) at p. 521, which reads

Having just completed the exercise of examining, in this fashion, the evidence that was before the arbitrator I would express the view, which is in agreement with that of Pennell J., that the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.

[8] The affidavit of Constable Bruce provides his perception of the following: his recruitment by the O.P.P., interview with O.P.P. officers and Webequie Band Councillors, hiring as a Band Constable, training course given by the O.P.P., swearing in as an O.P.P. officer, his appointment by the Commissioner as a First Nations Constable, return to Webequie and work as a First Nations Constable, payment of his wages by the Solicitor General of Ontario and enrollment in the Ontario Public Service Pension Plan following his appointment, letter by a fellow officer to superiors in the O.P.P. regarding difficulties at Webequie, receipt of a positive evaluation report from the O.P.P., deterioration of the situation at Webequie and two violent incidents following which two Webequie residents were charged with a criminal offence and the two officers were airlifted out of Webequie, criminal charges laid against Constable Bruce, suspension recommended by the Band Council, notification in March, 1994 by the Commissioner of his termination as a First Nations Constable being considered as well as the Band resolution terminating Constable Bruce’s position with the Band, correspondence between the Commissioner and the applicant’s counsel, and notification to Constable Bruce of termination as a First Nations Constable with accompanying cessation of payment of wages and benefits on June 24, 1994.

[9] Some fifteen months after the matter was remitted by the Divisional Court to the Commissioner, on August 10, 1999, the Commissioner notified Constable Bruce that she was considering the termination of his appointment as a First Nations Constable. By then, Constable Bruce had been acquitted following two separate trials. The letter stated as the reason for possible termination:

In the absence of employment as a band constable with the Webequie First Nation it would appear that you no longer require the power and authority conferred on you by your appointment as First Nations Constable and it is for that reason the Commissioner is considering the termination pursuant to Subsection 54(5) of the Police Services Act. I must advise you that any concerns you may have with respect to the decision of the Webequie First Nation to terminate your employment should properly be addressed to the Band Council. Your appointment as a First Nations Constable did not create an employment relationship between yourself and the Ontario Provincial Police or any other agency or ministry of the Government of Ontario.

[10] No misconduct was alleged by the Commissioner as a reason for termination. Copies of the following were sent to the applicant:

Band resolution of Jan. 22, 1993

Appointment, May 8, 1993

Band resolution of Feb. 21, 1994

Ontario First Nations Policing Agreement dated March 30, 1992

Sec. 54, Police Services Act

Decision of the Divisional Court, May 8, 1998

[11] Counsel for Constable Bruce sent several letters to the Commissioner requesting particulars of the conduct which, according to the Band Council’s resolution of Feb. 21, 1994, had caused their loss of confidence and trust in him. Without this information, he maintained that Constable Bruce could not respond fully to the Commissioner.

[12] On October 26, 1999, the Commissioner notified him in writing of her decision to terminate his appointment. She reiterated her position that the purpose of the appointment had been “to provide you with the policing authority you required to carry out your employment responsibilities with the Webequie First Nation”. She said that as no information had been provided to indicate any continuing need for this authority, the appointment was terminated. The Commissioner took the position that the applicant had been employed solely by the Webequie First Nation, despite the evidence in the applicant’s affidavit that he had been recruited, trained, evaluated on the job, paid (except for the three months before his appointment by the Commissioner) and provided with benefits by the O.P.P. or the Solicitor General of Ontario. The Commissioner stated in her letter of October 26, 1999 that:

The Ontario First Nations Policing Agreement established a variety of options for the provision of policing in First Nations Communities. That agreement further provided that all First Nations Constables would be employees of the community in which they provided policing.

By Band Council Resolution dated February 21, 1994, the Webequie First Nation terminated your employment as a Band Constable.

[13] Counsel for the Attorney General argued before us that it was pursuant to a term in this Policing Agreement requiring the O.P.P. Commissioner to share administration of “the policing arrangements” with certain First Nations that Constable Bruce received wages and benefits from the Province of Ontario.

[14] Section 54 of the Police Services Act applies to the hiring and termination of First Nations Constables. We were advised by both counsel that this section was added to the Act in 1990. It reads as follows:

54.(1) With the Commission’s approval, the Commissioner may appoint a First Nations Constable to perform specified duties.

(2) If the specified duties of a First Nations Constable relate to a reserve as defined in the Indian Act (Canada), the appointment also requires the approval of the reserve’s police governing authority or band council.

(3) The appointment of a First Nations Constable confers on him or her the powers of a police officer for the purpose of carrying out his or her specified duties.

(4) The Commissioner shall not suspend or terminate the appointment of a First Nations Constable whose specified duties relate to a reserve without first consulting with the police governing authority or band council that approved the appointment.

(5) The power to appoint a First Nations Constable includes the power to suspend or terminate the appointment, but if the Commissioner suspends or terminates an appointment, written notice shall promptly be given to the Commission.

(6) The Commissioner also has power to suspend or terminate the appointment of a First Nations Constable.

(7) Before a First Nations Constable’s appointment is terminated, he or she shall be given reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing as the Commissioner or Commission, as the case may be, may determine.

(8) A person appointed to be a First Nations Constable shall, before entering on the duties of his or her office, take oaths or affirmations of office and secrecy in the prescribed form.

[15] The document appointing Constable Bruce on May 8, 1993 states as the purpose of the appointment:

Performing law enforcement functions in Ontario while acting as a First Nations Constable pursuant to First Nations Policing Arrangements administered by the Ontario Provincial Police and the First Nations Governments or their respective Police Governing Authorities.

[16] Nowhere does the appointment of Constable Bruce refer to a specific document or agreement under which it is purported to have been made nor does it expressly limit his duties to a specific reserve as the Commissioner seems to infer. He was appointed to act “in Ontario” with the authority of a police officer as a First Nations Constable. Nevertheless, the Band Council of Webequie participated in his employment interview with officers of the O.P.P. and approved his appointment by the Commissioner as required by s.54(2) as if his appointment related only to that reserve.

[17] Because of the incompleteness of the record before the Commissioner, I find that this is a case which requires the evidence in the affidavit of Constable Bruce. It is necessary to have a history of the applicant’s appointment, his service through the first termination and remittance by this Court back to the Commissioner in order to provide a full and proper context to deal with the issue as to whether the Commissioner carried out her statutory duties under Subs. 54(4) and (7). Unlike Peel Condominium Corp. No. 199, this was not a case of an applicant supplying evidence in an attempt to have the Court substitute its view of the issues before the Commissioner. Instead, the evidence here was helpful on the issue whether the Commissioner acted within her statutory authority. The motion to strike the affidavit is dismissed.

[18] Counsel for the Attorney General submitted that the duty to consult prior to termination was met by the Commissioner’s receipt of the Band Council resolution of Feb. 21, 1994. That resolution reads in full:

WHEREAS, Webequie First Nation Chief and Council, members of the Webequie First Nation community have lost their confidence and trust in Steve Bruce and Leonard Kevin Ellis in their capacity as Band Constables as a result of their conduct towards members of the Webequie First Nation; and,

THEREFORE BE IT RESOLVED THAT, the employment of Steven Bruce and Leonard Kevin Ellis as First Nation Constables be terminated effective February 28th, 1994; and,

FURTHERMORE BE IT RESOLVED THAT, notice is hereby given to the Commissioner of the Ontario Provincial Police accordingly and Webequie First Nation Chief and Council will proceed to hire two First Nation Constables to provide police services for the Band as soon as possible; and.

FURTHERMORE, Webequie First Nation Chief and Council requests that a probationary period be implemented in the process of hiring of First Nation Constables.

[19] Counsel for the Attorney General argued that s.54(4) required the Commissioner only to determine the interest of the Band as employer. She submitted that when the resolution was received, the requirement of consultation was fully met, as it was clear the Band Council had terminated the applicant’s position as Band Constable. She took the position that the Commissioner’s duty under subs.(7) was satisfied by the August 10, 1999 letter to the applicant giving as the reason for termination of Constable Bruce as a First Nations Constable that he had lost his position with the Webequie First Nation.

[20] This restricted interpretation of ss.54(4) and (7) does not accord with the rules of fairness or natural justice which Section 54 incorporates in subsections 54(4) and (7). The fundamental rule of fairness requires that a person to be affected adversely by a power of decision be provided with sufficient information as to the case he or she must meet and a fair opportunity to answer it. Nicholson v. Haldimand-Norfolk (Regional Municipality) Commissioners of Police (1978), [1978 (SCC)], [1979] 1 S.C.R. 311 (S.C.C.), at 324 and 327-8 Section 54 provides a code of procedure not only to meet the interests of the particular First Nation Band where the constable was assigned but to ensure a fair process. It certainly does not indicate an intention to curtail the duty of the Commissioner to act fairly.

[21] In s.54(4), the words “consulting with” are used. The Canadian Oxford Dictionary, 1998 defines “consult” as “refer to a person for advice, an opinion, etc.”, or “seek information from (a person, book, watch, etc.)”. In company with subsection 54(7), I read subsection (4) as certainly requiring the Commissioner to find out the interest of the Band Council in the continuation or not of the First Nations Constable but also to inquire and ascertain the grounds for the Council’s position so that, in company with information in the possession of the Commissioner from her force’s internal investigation and other sources, the Commissioner may fulfil her duty under subsection (7) to give the constable in question reasonable information with respect to the reasons for the termination. The constable would then be able to give an informed reply.

[22] This matter was remitted by the Divisional Court to the Commissioner, in the words of the endorsement, to provide “an outline of the allegations against Constable Bruce and/or copies of the documents supporting the allegations and the rationale underlying the Band’s resolution”. In my view, to accede to the submission made by counsel for the Attorney General would be to reduce the statutory requirements to a mere formality. It is not “reasonable information” to merely say the appointment as constable is being terminated because another party involved in his hiring purported to terminate him, in the absence of any information as to the reason. Constable Bruce was appointed expressly to perform “law enforcement functions in Ontario” and not merely for one reserve or band; the loss of confidence by one band in him does not explain the Commissioner’s decision to terminate his appointment rather than to re-assign him as a First Nations Constable or to use him in some other capacity in the O.P.P. It is the Commissioner’s duty to ascertain the facts on which the termination is to proceed as best she can and provide at least an outline to the First Nations Constable involved. That she has failed to do.

[23] In addition, to tell Constable Bruce merely that he was never employed by a provincial agency and that he should ask the Band Council for reasons for his dismissal by it does not comply with the Commissioner’s duties to inquire and to provide reasonable information. If it is the assertion of the Commissioner that the First Nations Policing Agreement relates to the employment relationship of this applicant with the Band and/or the O.P.P. and the Solicitor General, as was urged before us without any evidence in support, then the requirement of “reasonable information” under subsection (7) entails some elucidation as to how that agreement applies to the particular Band (which is not listed as a party in the Agreement) and how it is alleged to affect Constable Bruce’s status as a First Nations Constable. This Agreement is some thirty six pages in length, involves five aboriginal groups as parties, and contains forty five sections. It is a document of some complexity. Of course, Constable Bruce is not a party to it nor was it referred to or incorporated in the terms of his appointment.

[24] As the Commissioner has failed to comply with her duties under subsections 54(4) and (7) of the Police Services Act, and as those duties are conditions precedent to the termination of Constable Bruce, the termination is quashed and this matter is remitted to the Commissioner once again to be dealt with according to law and the dictates of fairness.

[25] The request for a declaration of entitlement to wages and benefits cannot be dealt with fairly and effectively in this application. The issues remaining to be resolved require a trial. Those issues would appear to me to include: by whom the applicant was employed, whether just cause existed for his dismissal, compliance with the applicant’s duty to mitigate, and the degree to which the decisions of the Divisional Court and the Court of Appeal in Re Nicholson (supra) apply to the case of a First Nations Constable. I note that the definition of “police officer” in the Act expressly excludes a First Nations Constable.

[26] The applicant has commenced an action alleging, among other things, wrongful dismissal. The applicant can add the Webequie First Nation as a party to his action, if he chooses, and the employment and monetary issues can be determined on a full record including viva voce evidence.

[27] If counsel are unable to agree on the issue of costs, they may submit written submissions to the panel, for the applicant within fifteen days, and for the respondent within a further fifteen days.

Application granted.