The Corporation of the Canadian Civil Liberties Association et al. v. Ontario Civilian Commission on Police Services

[Indexed as: Canadian Civil Liberties Assn. v. Ontario Civilian Commission on Police Services]

80 O.R. (3d) 787

Ontario Superior Court of Justice, Divisional Court, Cunningham A.C.J.S.C., Lane and Molloy JJ.

September 15, 2005*

• This judgment was recently brought to the attention of the editors.

Administrative law -- Judicial review -- Standard of review -- Ontario Civilian Commission on Police Services refusing to deal with complaint of police misconduct on basis that complainant was not person "directly affected" by conduct -- Standard of review of that decision that of correctness. [page788]

Police -- Complaints -- "Directly affected" -- Complainant witnessing alleged police misconduct, speaking to officer involved and finding incident disturbing -- Ontario Civilian Commission on Police Services erring in refusing to deal with complaint because complainant was not person "directly affected" by conduct as required by ss. 57(1) and 59(5) of Police Services Act -- Term "directly affected" referring to persons having personal rather than community interest in matter -- Direct link required between person filing complaint and police conduct -- Direct link existing between complainant and conduct as he witnessed it and was disturbed by it -- Complainant person "directly affected" by conduct -- Police Services Act, R.S.O. 1990, c. P.15, ss. 57(1), 59(5).

R alleged that he saw a police officer use excessive force against a woman while escorting her from a store. He claimed that he was stunned and shaken by the incident and that he spoke to the officer and noted his badge number. R filed a formal complaint under the Police Services Act relating to the officer's conduct. The Ontario Civilian Commission on Police Services refused to deal with the complaint as R was not a person "directly affected" by the officer's conduct as that term is used in ss. 57(1) and 59(5) of the Act. R brought an application for judicial review of that decision.

Held, the application should be granted.

Per Molloy J. (Lane J. concurring): The standard of review of the Commission's decision was that of correctness.

The Act is remedial public interest legislation, and as such, it should be given a broad and liberal construction consistent with its purposes, particularly when the issue involved is public access to the complaints process. The word "directly" in the phrase "directly affected" signifies an intention that the complainant have a personal rather than a community interest in the matter. To confine the right of complaint to the person actually injured by the police conduct would be to give the phrase a far too restrictive definition, one that is not required by the plain meaning of the words used. On the other hand, the legislation should not be interpreted so broadly that a right of complaint is vested in anybody who is unhappy with the police. There must be some direct link between the person filing the complaint and the police conduct which is the subject of the complaint, something that distinguishes the complainant's interest from that of any other member of the community. R was actually present at the time of the alleged assault, he spoke to the officer involved and he was disturbed and shaken by the incident. His position went beyond that of a concerned citizen as part of the general community; his experience was firsthand. He was a person "directly affected" by the conduct.

Per Cunningham A.C.J.S.C. (dissenting): R was not a person "directly affected" by the incident. Rather, the person directly affected was the person who was the subject of the impugned conduct. By including the word "directly", the legislature clearly sought to carefully circumscribe the right of complaint, and intended there to be a degree of proximity before a person "affected" would be able to lodge a complaint. R was advancing the "community" interest in public scrutiny of police discipline matters. He had no personal interest in the matter. He was "affected" by the conduct, but not "directly affected".

APPLICATION for judicial review of a decision of the Ontario Civilian Commission on Police Services.

Cases referred to

Canadian Union of Public Employees, Local 30 v. Alberta (Public Health Advisory and Appeal Board), 1996 ABCA 6, [1996] A.J. No. 48, 178 A.R. 297, 34 Admin. L.R. (2d) 172 (C.A.), apld [page789]

Other cases referred to Armstrong v. Peel (Regional Municipality) Police Services, 2003 37924 (ON SCDC), [2003] O.J. No. 3437, 176 O.A.C. 358 (Div. Ct.); Big Lake Environmental Support Society (Re) (2002), 46 C.E.L.R. (N.S.) 1 (Alta. Environmental App. Bd.); C.N.R. v. Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, [1987] S.C.J. No. 42, 40 D.L.R. (4th) 193, 76 N.R. 161 (sub nom. Action Travail des Femmes v. Can. National Railway Co.); Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649, [2002] O.J. No. 3737, 220 D.L.R. (4th) 86, 97 C.R.R. (2d) 271 (C.A.); Endowed Schools Act (Re), [1898] A.C. 477 (P.C.); Friends of the Athabasca Environmental Assn. v. Alberta (Public Health Advisory & Appeal Board), 1996 ABCA 11, [1996] A.J. No. 47, 37 Alta. L.R. (3d) 148, [1996] 4 W.W.R. 604, 34 Admin. L.R. (2d) 167 (C.A.); Instinet Corp. (Re) (1995), 18 O.S.C.B. 5439, 12 C.C.L.S. 23; Kelm v. Alberta (Director of Air & Water Approvals Division) (1997), 25 C.E.L.R. (N.S.) 172 (Alta. Environmental App. Bd.); Kostuch (Re), [1995] A.E.A.B.D. No. 9; Kostuch v. Alberta (Director, Air & Water Approvals Division, Environmental Protection), 1996 10565 (AB KB), [1996] A.J. No. 311, 182 A.R. 384, 35 Admin. L.R. (2d) 160, 21 C.E.L.R. (N.S.) 257 (Q.B.); Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 242 D.L.R. (4th) 193, 2004 SCC 54, 45 B.L.R. (3d) 161, 17 Admin. L.R. (4th) 1; Ontario (Civilian Commission on Police Services) v. Browne (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, [2001] O.J. No. 4573, 207 D.L.R. (4th) 415 (C.A.); Ontario (Civilian Commission on Police Services) v. Wallaceburg (Town) Police Services Board (1997), 1997 16263 (ON SC), 33 O.R. (3d) 261, [1997] O.J. No. 1413, 98 O.A.C. 378 (Div. Ct.); Ontario (Provincial Police) v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681, [2004] O.J. No. 4248, 191 O.A.C. 3 (C.A.); Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74, 12 O.A.C. 241, 23 D.L.R. (4th) 321, 64 N.R. 161, 17 Admin. L.R. 89, 9 C.C.E.L. 185, 86 C.L.L.C. Â17,002; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201; Reuters Information Services (Canada) Ltd. (Re) (1997), 20 O.S.C.B. 2277, 13 C.C.L.S. 66; Toronto (City) Police Service v. Blowes-Aybar, 2004 34451 (ON SCDC), [2004] O.J. No. 1655, 185 O.A.C. 352 (Div. Ct.); Weber (Re) (2002), 47 C.E.L.R. (N.S.) 61 (Alta. Environmental App. Bd.)

Statutes referred to

Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Police Services Act, R.S.O. 1990, c. P.15, ss. 56 [as am.], 57 [as am.], 59 [as am.], 72 [as am.] Securities Act, R.S.O. 1990, c. S.5, s. 8(2)

Crawford Smith, for applicants. William J. Manuel, for respondent.

MOLLOY J. (LANE J. concurring): --

The Issue

[1] This is a judicial review of a decision of the Ontario Civilian Commission on Police Services (the "Commission") in which [page790] the Commission refused to deal with a complaint of police misconduct based on its determination that the complainant, Roger Rolfe, was not a person "directly affected" by the conduct at issue.

[2] The sole issue in this proceeding is the proper interpretation of the words "directly affected" as used in ss. 57(1) and 59(5) of the Police Services Act, R.S.O. 1990, c. P.15 (the "Act"). The relevant sections state:

56(1) Any member of the public may make a complaint under this Part about the policies of or services provided by a police force or about the conduct of a police officer.

57(1) A complaint may be made by a member of the public only if the complainant was directly affected by the policy, service or conduct that is the subject of the complaint.

59(5) The chief of police shall not deal with any complaint made by a member of the public if he or she decides that the complainant was not directly affected by the policy, service or conduct that is the subject of the complaint.

Background

[3] Mr. Rolfe filed an affidavit setting out the substance of his complaint to the Commission. For purposes of this proceeding, the truth of his allegations is not challenged. The issue is whether, assuming those facts to be true, Mr. Rolfe has any standing under the Act to make a complaint.

[4] The incident about which Mr. Rolfe complains occurred in Toronto on January 4, 2002. While shopping with his wife, he observed a male police officer and two male firefighters escorting a woman out of the store. The woman was very slight in stature, weighing about 100 pounds, and appeared to be approximately 50 years old. She looked to be intoxicated and was unsteady on her feet, although passive. When Mr. Rolfe was outside the store on the sidewalk, he saw the police officer emerge from the store with the woman. Her hands were cuffed behind her back and the officer was guiding her with his hand on her left elbow and arm. She was not resisting. Suddenly, and for no apparent reason, the officer slammed the woman to the ground with considerable force, causing her to strike her head on the pavement. The firefighters provided first aid treatment, putting a gauze bandage on the woman's head. A large pool of blood about 8-10 inches in diameter was left on the sidewalk where her head had been. Mr. Rolfe stated that he was "stunned" by the officer's actions and spoke to him at the time, [page791] advising him that he believed his actions were unwarranted. He made a mental note of the officer's badge number and a physical description of him. Mr. Rolfe found this incident to be very disturbing. He states that he experiences considerable anxiety and a loss of sleep after witnessing the incident.

[5] On January 4, 2003, Mr. Rolfe filed a formal complaint under the Act relating to the officer's conduct. Acting Inspector McCormack (on behalf of the Chief of Police) advised Mr. Rolfe that his complaint would not be treated as a formal complaint because he was not "directly affected" by the alleged conduct, relying on s. 59(5) of the Act. Pursuant to s. 72(4) of the Act, Mr. Rolfe asked the Commission to review the Chief of Police's decision. However, on March 31, 2003, the Commission advised Mr. Rolfe that it agreed with the decision of the Chief of Police. No reasons were provided by either decision-maker.

[6] Although Mr. Rolfe was advised that an internal investigation of his allegations had taken place, he was never interviewed as part of that process. The police would not disclose any information with respect to the investigation or its conclusions.

Standard of Review

[7] In determining the applicable standard of review for a particular decision of a particular tribunal, the court is required to take a functional and pragmatic approach, taking into account: (i) the existence of a privative clause; (ii) the expertise of the tribunal relative to that of the court; (iii) the purpose of the Act and the particular provisions at issue; and (iv) the nature of the problem before the tribunal: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193.

[8] Section 72(12) of the Act provides that the Commission's decision to uphold the determination made by the Chief of Police is "final and binding and there is no appeal therefrom". This is a privative clause that would tend to support a higher standard of review.

[9] It is the clear intention of the legislation that the Commission exercise ultimate responsibility for the oversight of municipal policing in Ontario. The Commission has a specialized expertise in respect of police disciplinary matters. The purpose of the legislation and the specialized expertise of the tribunal are factors which have led courts in some instances to apply the highest standard of patent unreasonableness to decisions of the Commission: Ontario (Civilian Commission on Police Services) v. Browne (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673, [2001] O.J. No. 4573 (C.A.); Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services) (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649, [2002] O.J. No. 3737 (C.A.). [page792] However, in those cases the Commission's specialized expertise was directly engaged. In other cases, a lower standard has been applied based on the nature of the question before the Commission. Thus, where the question involves mixed fact and law, a standard of reasonableness has been applied: Ontario (Civilian Commission on Police Services) v. Wallaceburg (Town) Police Services Board (1997), 1997 16263 (ON SC), 33 O.R. (3d) 261, [1997] O.J. No. 1413 (Div. Ct.); Armstrong v. Peel (Regional Municipality) Police Services, 2003 37924 (ON SCDC), [2003] O.J. No. 3437, 176 O.A.C. 358 (Div. Ct.); Ontario (Provincial Police) v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681, [2004] O.J. No. 4248 (C.A.). In Toronto (City) Police Service v. Blowes-Aybar, 2004 34451 (ON SCDC), [2004] O.J. No. 1655, 185 O.A.C. 352 (Div. Ct.), this court held that a pure question of law should be reviewed on a correctness standard.

[10] The case before us involves a pure question of law, going to jurisdiction. The Commission provided no reasons for its decision, nor did the Chief of Police. There was no hearing, no findings of fact, and indeed, no disputed facts. The whole case turns on the meaning of the term "directly affected", which is a general term, rather than one that engages the special expertise of the tribunal. The Commission does not have any greater expertise in this area relative to that of the court. Accordingly, the appropriate standard of review is one of correctness: Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, [2004] S.C.J. No. 51, 242 D.L.R. (4th) 193.

Analysis

[11] The Police Services Act is remedial public interest legislation, the purpose of which is to increase public confidence in the provision of police services and the investigation of citizen complaints against police: Canadian Civil Liberties Assn. v. Ontario (Civilian Commission on Police Services), supra, at para. 26. As such, it should be given a broad and liberal construction consistent with its purposes, particularly when the issue involved is public access to the complaints process: Interpretation Act, R.S.O. 1990, c. I.11, s. 10; Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 18 (SCC), [1985] 2 S.C.R. 536, [1985] S.C.J. No. 74. Thus, although courts must be guided by the plain meaning of the words used in such legislation, they "should not search for ways and means to minimize those rights and enfeeble their proper impact": CNR v . Canada (Human Rights Commission), 1987 109 (SCC), [1987] 1 S.C.R. 1114, [1987] S.C.J. No. 42, at para. 24. [page793]

[12] There is no case law interpreting the words "directly affected" in the context of the Police Services Act. However, the Alberta Court of Appeal dealt with a similar issue in Canadian Union of Public Employees, Local 30 v. Alberta (Public Health Advisory and Appeal Board), 1996 ABCA 6, [1996] A.J. No. 48, 178 A.R. 297 (C.A.), a case to which both counsel in this proceeding made reference. In the Alberta case, the Edmonton Board of Health made a decision approving the development of a waste management facility. The applicant union ("C.U.P.E.") had made submissions objecting to the proposal when it was in the planning stages. When the decision approving the facility was released, C.U.P.E. filed an appeal with the Public Health and Advisory Board. The applicable legislation provided a right of appeal to "a person who is directly affected by a decision of a local board". The Alberta Court of Appeal upheld the tribunal and lower court decisions that C.U.P.E. was not "directly affected" and therefore had no right of appeal.

[13] In considering the appropriate interpretation of the words "directly affected", the Alberta Court of Appeal (at para. 18) relied on a common law interpretation enunciated by Lord Hobhouse in Re Endowed Schools Act, [1898] A.C. 477 (P.C.), at p. 483 A.C. as follows:

That term points rather to a personal and individual interest as distinct from the general interest which appertains to the whole community. . .

[14] The Alberta Court of Appeal then reasoned that the words "directly affected" must mean more than "affected" and held, at para. 19:

In our view, the inclusion of the word "directly" signals a legislative intent to further circumscribe a right of appeal. When considered in the context of the regulatory scheme, it is apparent that the right of appeal is confined to persons having a personal rather than a community interest in the matter.

[15] Although different legislation was involved in the Alberta case, the words used are virtually identical to the words in our statute ("directly affected"), and the context in which they are used is also very similar (a right of appeal to a tribunal in respect of an issue of public interest). Further, the reasoning of the court is logical and persuasive. In my view, the interpretation of "directly affected" adopted by the Albert Court of Appeal in the C.U.P.E. case is appropriate to apply to those same words as used in our Police Services Act.

[16] The respondent argues that Mr. Rolfe does not fit within the definition because he was not the person injured by the police conduct. Rather, the police conduct was directed towards the woman in the store and Mr. Rolfe was a mere witness to it. [page794]

[17] In my opinion, that is a far too restrictive definition, and not one that is required by the plain meaning of the words used. Indeed, it is the most restrictive interpretation of the words "directly affected" one could possibly apply. Such an approach is not consistent with the broad public purpose of the legislation and the fact that it is meant to protect the most vulnerable in society against the most powerful agents of the state. If the respondent's interpretation is correct, only actual victims would have a right of complaint. The orphaned children of a person killed by police would not have a complaint; the parents of a teenager the police failed to protect would not have a complaint; a wife who saw her husband shot in front of her would not have a complaint. That is an overly narrow reading of the statute.

[18] On the other hand, the legislation should not be interpreted so broadly that a right of complaint is vested in anybody who is unhappy with the police. There must be some direct link between the person filing the complaint and the police conduct which is the subject of the complaint, something that distinguishes the complainant's interest from that of any other member of the community.

[19] In my opinion, Mr. Rolfe is such a person. He was actually present at the time of the alleged assault. He witnessed at close range the assault and its aftermath. He spoke to the police officer. He was disturbed by what he saw and shaken by it even after the event. In other words, he was directly affected by what he witnessed, even though he was not physically struck by the police. His position goes beyond that of a concerned citizen as part of the general community; his experience was firsthand.

[20] The privacy issues raised by the respondent are not sufficient to deprive Mr. Rolfe of standing to make a complaint. The Commission will be in a position to deal with any confidentiality or privacy issues that do arise, and are not waived by the person whose interest is involved. Privacy issues will come up in many complaints before the Commission, e.g., addresses or phone numbers or criminal records of witnesses or non-parties. A case such as this one might result in more confidentiality issues, but these can still be dealt with in the normal course.

[21] The Corporation of the Canadian Civil Liberties Association ("CCLA") did not file its own complaint with the Commission, but did assist Mr. Rolfe in his dealings with the Commission and the police. No application was made by CCLA to be granted intervenor status in this proceeding. Rather, it simply appears as an applicant in the style of cause. The CCLA [page795] does not fall within the definition of a person "directly affected" on the facts of this case. Further, it was not a party to any matter before the Commission and has no status to be an applicant in this judicial review. The CCLA may wish to continue to be involved in a supportive role. However, it is not entitled to appear as a full party.

[22] For these reasons, the application for judicial review is allowed. The order of the Commission is set aside and Mr. Rolfe's complaint is remitted to the Chief of Police to be treated as a formal complaint by a person directly affected by the alleged conduct.

[23] Costs to the applicants to be the subject of written submissions as to amount.

[24] CUNNINGHAM A.C.J.S.C. (dissenting): -- I have read with considerable interest the reasons of my learned colleague, Molloy J., and while I agree with her on the standard of review, I cannot agree with the conclusion she has reached on the principal issue.

[25] As Molloy J. has stated in para. 2, the only issue in the proceeding before us was the interpretation of the words "directly affected" as used in ss. 57(1) and 59(5) of the Police Services Act, R.S.O. 1990, c. P.15.

[26] I recognize that the Police Services Act is remedial public interest legislation and that it ought to be accorded a broad and liberal construction. Public confidence in the complaints process must not only be protected, but also enhanced. Having said that, I cannot agree that the applicant, Roger Rolfe, was a person "directly affected" by what occurred in Toronto, January 4, 2002 in the circumstances outlined in para. 4 of the reasons of Molloy J. Roger Rolfe was not "directly affected" by the conduct complained of. Rather the person directly affected was the person who was the subject of the impugned conduct. What Rolfe appears to be advancing in having his complaint designated as a public complaint is the "community" interest in public scrutiny of police discipline matters. The legislature, in my view, quite appropriately has circumscribed the scope of the public complaints process to those persons "directly affected" and it is the role of the Chief of Police and the Commission to apply that legislation.

[27] It would be unreasonable to conclude that the legislature intended each and every witness to alleged misconduct could interject themselves into the process of resolving public complaints, including becoming a party to any hearing and having rights of appeal from any decision taken. Moreover, no useful [page796] purpose would be served by having this matter designated as a public complaint since the matter has been fully investigated and dealt with by the Chief of Police. Treating this as a public complaint would allow Rolfe to obtain personal information concerning the alleged victim and to make decisions about the processing of the complaint. Indeed, I see no utility in having Rolfe's complaint designated as a public complaint. In fact mischievous results could arise from doing so.

[28] I believe the issue was thoroughly canvassed by the Alberta Court of Appeal in Canadian Union of Public Employees, Local 30 v. Alberta (Public Health Advisory and Appeal Board), 1996 ABCA 6, [1996] A.J. No. 48, 178 A.R. 297 (C.A.), a case referred to by both counsel in the proceeding before us. As Molloy J. has written in para. 13, the Alberta Court of Appeal relied on the common law interpretation of the words "directly affected" as enunciated by Lord Hobhouse in Endowed Schools Act (Re), [1898] A.C. 477 (P.C.), at p. 483 A.C. as follows:

That term points to a personal and individual interest as distinct from the general interest which appertains to the whole community.

Furthermore, as Molloy J. states in para. 14, the Alberta Court of Appeal concluded one must be more than "affected" and that the inclusion of the word "directly" indicates a legislative intent to further circumscribe the right of appeal. While agreeing with the decision in C.U.P.E. Local 30 (supra), Molloy J. concluded that to describe Rolfe as a mere witness would be far too restrictive and not consistent with the public purpose of the subject legislation. I cannot agree.

[29] In Instinet Corp. (Re) (1995), 18 O.S.C.B. 5439, 112 C.C.L.S. 23, the Ontario Securities Commission considered the term "directly affected" in the context of a dispute over standing which is governed by s. 8(2) of the Securities Act, R.S.O. 1990, c. S.5, as amended. Subsection 8(2) of the Act states:

8(2) Any person or company directly affected by a decision of the Director may, by notice in writing sent by registered mail to the Commission within 30 days of the mailing of the notice of the decision, request and be entitled to a hearing and review thereof by the Commission.

(Emphasis added)

[30] The commission in interpreting the words "directly affected" considered the case law provided and found:

The words "directly affected" in subsection 8(2) of the Act should be interpreted in light of all of the relevant circumstances. The interpretation to be given to the words in the context of a decision relating to a take-over bid may well be different than in the context of a legislation decision. In each case under subsection 8(2), in determining standing, the Commission [page797] must look at the nature of the power that was exercised, the decision that was made, the nature of the complaint being made by the person requesting the hearing and review and the nature of that person's interest in the matter.

Given the nature and purpose of our registration system, it was difficult for us to conceive of a case in the registration context where someone other than the registrant or an applicant for registration would be "directly affected" by a Director's decision. That also appears, under subsection 8(2), to be the legislative intention, given that a person or company requesting a hearing and review must do so within 30 days after mailing of the notice of the decision, and the notice is only mailed to the registration applicant.

We have also considered the nature of the complaint of the SROs and their interest in the Director's decision in determining whether they should have standing under subsection 8(2) of the Act. Even if we were to accept what we view as the most significant argument of the SROs, that the registration of Instinet U.S. is likely to lead to fragmentation of the Canadian markets we do not believe that the Canadian exchanges are "directly affected" by the decision.

[31] Though the commission applied this contextual approach to defining "directly affected", it then went on to consider the words in light of their natural meaning. The commission opined:

We note that the relevant part of the definition of "directly" in the Oxford dictionary is "without the intervention of a medium; immediately; by a direct process or mode." The Oxford dictionary includes in the definition of "indirect", "not directly aimed at or attained; not immediately resulting from an action or cause."

In the Finlay case there is a discussion at p. 622 of the concepts of directness and causal relationship.

The term "nexus" is used in a more general sense in other cases, such as Linda R.S. v. Richard D., 410 U.S. 64 (1973), to refer to the causative relationship that must exist between the injury or prejudice complained of and the action attached. The action attacked must have been a cause of the injury or prejudice complained of, and the plaintiff must have a personal stake in the outcome of the litigation -- that is, stand to benefit in his personal interests from the relief sought.

If the Canadian exchanges are affected by the Director's decision to register Instinet U.S. in our view they are only indirectly affected. In order to be "directly affected" in the registration context, the Director's decision to register Instinet U.S. would have to be the cause of fragmentation.

[32] Instinet was applied by the Ontario Securities Commission in the case of Reuters Information Services (Canada) Ltd. (Re) (1997), 20 O.S.C.B. 2277, 13 C.C.L.S. 66. In Reuters the commission again was adjudicating on a request for standing. The commission considered the jurisprudence on the interpretation of "directly affected" and denied the request for standing on the [page798] basis that the applicant failed to demonstrate that the Investment Dealers Association would have an "immediate or automatic effect on the applicant's contractual arrangement" (at para. 29). In this decision, applying the interpretation set out in Instinet, supra, the commission found that an applicant must be immediately or automatically affected in order to show that they are "directly affected" by a decision.

[33] In Kostuch v. Alberta (Director, Air & Water Approvals Division, Environmental Protection), 1996 10565 (AB KB), [1996] A.J. No. 311, 21 C.E.L.R (N.S.) 257 (Q.B.), the court considered the term "directly affected" in the context of an application for standing to appeal a decision of the Environmental Appeal Board. Marceau J. denied the request for standing and found the applicant not to be directly affected by the Board's decision and therefore without standing to appeal. Marceau J., in arriving at this conclusion, surveyed the judicial consideration of the term "directly affected" and quoting from the Alberta Court of Appeal decisions of Canadian Union of Public Employees, Local 30 v. Alberta (Public Health Advisory and Appeal Board), supra, and Friends of The Athabasca Environmental Assn. v. Alberta (Public Health Advisory and Appeal Board), 1996 ABCA 11, [1996] A.J. No. 47, 37 Alta L.R. (3d) 148 (C.A.) opined [at paras. 17-18]:

In our view, the inclusion of the word "directly" signals a legislative intent to further circumscribe a right of appeal. When considered in the context of the regulatory scheme, it is apparent that the right of appeal is confined to persons having a personal rather than a community interest in the matter.

The use of the modifier "directly" with the word "affected" indicates an intent on the part of the Legislature to distinguish between persons directly affected and indirectly affected. An interpretation that would include any person who has a genuine interest would render the word "directly" meaningless, thus violating fundamental principles of statutory interpretation: Subilomar Properties (Dundas) Ltd. v. Cloverdale Shopping Centre Ltd. (1973) 1962 76 (SCC), 35 D.L.R. (2d) 1 (S.C.C.) at 5. An interpretation that would import expanding concepts of judicial discretion, contrary to the intention of the legislature, would engage the sort of interpretive exercise expressly rejected by the Supreme Court in Canada (Attorney-General) v. Mossop (1993) 100 D.L.R. (4th) 658 at 673.

[34] Marceau J. then set out a test [from Kostuch (Re), [1995] A.E.A.B.D. No. 9, at p. 13] for interpreting "directly affected" in the context of an application for standing as follows:

Two ideas emerge from this analysis about standing. First, the possibility that any given interest will suffice to confer standing diminishes as the causal connection between an approval and the effect on that interest becomes more remote. This first issue is a question of fact, i.e., the extent of [page799] the causal connection between the approval and how much it affects a person's interest. This is an important point; the Act requires that individual appellants demonstrate a personal interest that is directly impacted by the approval granted. This would require a discernible effect, i.e., some interest other than the abstract interest of all Albertans in generalized goals of environmental protection. Directly means the person claiming to be "affected" must show causation of the harm to her particular interests by the approval challenged on appeal. As a general rule, there must be an unbroken connection between one and the other.

Second, a person will be more readily found to be "directly affected" if the interest in question relates to one of the policies underlying the Act. This second issue raises a question of law, i.e., whether the person's interest is supported by the statute in question. The Act required an appropriate balance between a board (sic) range of interests, primarily environmental and economic.

[35] The Kostuch decision has been consistently followed by courts in Alberta on the issue of judicial interpretation of "directly affected". Primarily Kostuch is applied where an applicant has brought a motion for standing. The cases of Big Lake Environmental Support Society (Re) (2002), 46 C.E.L.R. (N.S.) 1 (Alta. Environmental App. Bd.) and Kelm v. Alberta (Director of Air & Water Approvals Division) (1997), 25 C.E.L.R. (N.S.) 172 (Alta. Environmental App. Bd.) are both examples of courts' application of the test set out in Kostuch. In Kelm the Board set out the test cited in Kostuch and then summarized the test for a consideration of "directly affected". The board stated [at para. 24]:

To be directly affected under section 84(1)(a)(v) [Environmental Protection and Enhancement Act, S.A. 1992, c. E-13.3], this Board believes the person who appeals must have a substantial interest in the outcome of the approval that surpasses the common interests of all residents who are affected by the approval (see the Board's earlier decision in Boucher v. Alberta (Director of Air & Water Approvals, Environmental Protection)). "Directly affected" depends upon the chain of causality between the specific activity approved (the wet pond) and the environmental effect upon the person who seeks to appeal the decision.

(Brackets added)

[36] Finally, in the case of Weber (Re) (2002), 47 C.E.L.R. (N.S.) 61 (Alta. Environmental App. Bd.) the Alberta Environmental Appeal Board again considered whether an individual had standing to appeal a decision before the Board. The Board determined that the applicant had no standing because he "failed to show that he will suffer specific personal harm as a result" of the Board's decision. In denying the application for standing the Board considered whether the applicant would be "directly affected" by the decision. The Board stated that the test for directly affected is not a "general interest or desire to prevent [page800] environmental harms resulting from the approved project; [rather] the appellant must show that those harms 'directly affect' the appellant" (at para. 42).

[37] These cases seem to suggest that the courts and administrative boards, in considering the term "directly affected" will require an applicant to show a causal connection. Indeed some decisions require there to be an immediate or automatic effect.

[38] There can be little doubt that Rolfe was "affected" by the impugned conduct. However, that is not enough. He has no personal interest in the matter. If the legislature intended to include anyone "affected" by police conduct, it would not have included the word "directly" in the legislation. By including the word "directly", the legislature clearly sought to carefully circumscribe the right of complaint. By including the word "directly" as an adverb, the legislature must have intended there to be a degree of proximity before a person "affected" would be able to lodge a complaint.

[39] I completely agree with what Molloy J. has to say in para. 18 of her reasons. However, I simply cannot conclude that Rolfe has a "direct link". How would we ever determine whether a person such as Rolfe would, in the circumstances he found himself in, be "directly affected". There might have been ten bystanders observing the removal of the woman from the store. Three of them, including Rolfe, might have been more "affected" by what they observed, than the seven others. It seems to me an enormous Pandora's box would be opened if we were to extend the meaning of "directly affected" to the extent urged by my colleague.

[40] For these reasons, I would dismiss the application.

Application granted.