McDonald v. Anishinabek Police Service et al. [Indexed as: McDonald v. Anishinabek Police Service]

83 O.R. (3d) 132

Ontario Superior Court of Justice, Divisional Court,

Lane, Greer and Lax JJ.

October 13, 2006

Administrative law -- Judicial review -- Availability -- Autonomous Aboriginal police service created by tripartite agreement among federal and provincial governments and First Nations subject to judicial review.

Administrative law -- Fairness -- First Nations Constable with Aboriginal police service terminated after allegations of sexual misconduct were made against him -- Chief of Police of Aboriginal police service not complying with Code of Conduct which required that disciplinary hearing be held before termination -- Constable denied procedural fairness -- Constable's application for certiorari granted and decision to terminate him quashed.

Police -- Discipline -- Termination -- Autonomous Aboriginal police service created by tripartite agreement among federal and provincial governments and First Nations subject to judicial review -- First Nations Constable with Aboriginal police service terminated after allegations of sexual misconduct were made against him -- Chief of Police of Aboriginal police service not complying with Code of Conduct which required that disciplinary hearing be held before termination -- Constable denied procedural fairness -- Constable's application for certiorari granted and decision to terminate him quashed.

The applicant was a First Nations Constable with the APS, an autonomous, independent Aboriginal police service created by a tripartite agreement among the federal government, the provincial government and a number of First Nations. The applicant was enrolled in a court at the Ontario Police College. His continued employment was conditional on successful completion of the course. When allegations of sexual misconduct were made against the applicant, the APS Chief of Police terminated the applicant's employment without holding a hearing or giving him a chance to respond to the allegations. At the time, a Code of Conduct was in effect for the APS. Under the Code of Conduct, major defaults were to be investigated, the investigating report was to be provided to the Chief of Police, and if the Chief or his delegate considered that disciplinary action was warranted, a disciplinary hearing was to be held by the Discipline Committee of the APS Police Governing Authority. After hearing evidence, if the Discipline Committee determines that the evidence substantiates the allegations, it may impose sanctions, including dismissal. The applicant brought an application for judicial review of the decision to discharge him.

Held, the application should be granted.

The APS Code of Conduct had not been supplanted by the Canada Labour Code, R.S.C. 1985, c. L-2. Given the dual nature of the APS, which was both an employer under the federal labour regime and the operator of a professional police force, the two systems had to live together.

The exercise of statutory power is not a prerequisite to relief in the nature of mandamus, prohibition or certiorari. Rather, the prerogative writs may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual. The [page133] decision to dismiss the applicant was a decision that directly affected his rights. Under the broad view of prerogative powers, the APS was established by way of a tripartite agreement which was entered into by the executive branch of government: the Solicitors General of Canada and Ontario and the Minister Responsible for Native Affairs. Thus, as establishing the APS was an act of the executive branch of government, the APS was subject to judicial review. Under the narrow view of prerogative powers, such that the power to enter into contracts is not part of Crown prerogative and is rather a part of the Crown's natural person powers, the Crown must have been exercising royal prerogative with respect to the creation of the APS. While the power to contract is shared by all persons, private citizens do not enjoy the power to deal with Indian affairs, to create police forces and to grant them police powers. Thus, under either view of prerogative powers, the APS was subject to judicial review by the Divisional Court.

Even if the APS was not a body constituted pursuant to prerogative powers, the prerogative writs were available as a general remedy for supervision of the machinery of government. The APS was a public body fulfilling a governmental function as part of the machinery of government and was therefore subject to judicial review.

The applicant was a public officer, not a mere employee, so he was owed a duty of procedural fairness. The manner in which he was dismissed did not meet the requirements of the Code of Conduct and was procedurally unfair. The decisions to dismiss him and to terminate his status as a First Nations Constable were quashed. The most appropriate remedy would be a hearing before the Discipline Committee under the Code of Conduct so that the applicant had the opportunity to respond to the allegations made against him. However, the APS might take the position that there was no jurisdiction in the Code of Conduct because it had been superseded by the Canada Industrial Labour Relations Board, and might refuse to act. The next most appropriate relief would be a hearing before the Commissioner or delegate under the Police Services Act, R.S.O. 1990, c. P.15. However, the Commissioner was not a party and the court had no jurisdiction to require a non-party to hold a hearing. Accordingly, if the APS declined to hold a hearing, there should be a trial of an issue before the Superior Court to determine if there was just cause for the applicant's dismissal and to determine if he was to be reinstated and whether back wages and/or damages could be awarded.

APPLICATION for a judicial review of the decision of the Chief of Police of Anishinabek Police Service terminating the applicant's employment.

Cases referred to Anishinabek Police Service v. Canadian First Nations Police Assn. (Goulais Grievance), [2001] C.L.A.D. No. 281; R. v. Criminal Injuries Compensation Board, Ex. p. Lain, [1967] 2 Q.B. 864 (C.A.), consd Other cases referred to 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), 1996 153 (SCC), [1996] 3 S.C.R. 919, [1996] S.C.J. No. 112, 140 D.L.R. (4th) 577, 205 N.R. 1; Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.); Attorney-General for New South Wales v. Perpetual Trustee Co. (LTD.), [1955] A.C. 457, [1955] 1 All E.R. 846, [1955] 2 W.L.R. 707 (P.C.); Bezaire v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, [1992] O.J. No. 1478, 94 D.L.R. (4th) 310 (Div. Ct.); Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, [2001] O.J. No. 1853, 199 D.L.R. (4th) 228 (C.A.); Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374 (H.L.); Kaplan v. Canadian Institute of Actuaries,. 1997 ABCA 310, [1997] A.J. No. 874, 56 Alta. L.R. (3d) 205, 151 D.L.R. (4th) 481 (C.A.), supp. reasons 1998 ABCA 82, [1998] A.J. No. 286, 60 Alta. L.R. (3d) 251 (C.A.) [Leave to appeal to S.C.C. refused [1997] S.C.C.A. No. 563], affg 1994 9065 (AB QB), [1994] A.J. No. 868, 25 Alta. L.R. (3d) 108 (Q.B.); [page134] Knight v. Indian Head School Division No. 19, 1990 138 (SCC), [1990] 1 S.C.R. 653, [1990] S.C.J. No. 26, 83 Sask. R. 81, 69 D.L.R. (4th) 489, 106 N.R. 17, [1990] 3 W.W.R. 289, 30 C.C.E.L. 237, 90 C.L.L.C. Â14,010 (sub nom. Indian Head School Div. v. Knight); Liverpool Taxi Owners Association (Re), [1972] 2 All E.R. 589; Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121, 106 D.L.R. (3d) 385, 30 N.R. 119, 50 C.C.C. (2d) 353, 13 C.R. (3d) 1; Masters v. Ontario (1993), 1993 8530 (ON SC), 16 O.R. (3d) 439, [1993] O.J. No. 3091, 110 D.L.R. (4th) 407, 94 C.L.L.C. Â14,013 (Div. Ct.); Mohr v. C.J.A., Vancouver, New Westminster and Fraser Valley, 1988 3189 (BC CA), [1988] B.C.J. No. 2075, 32 B.C.L.R. (2d) 104 (C.A.); Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, 1978 24 (SCC), [1979] 1 S.C.R. 311, [1978] S.C.J. No. 88, 88 D.L.R. (3d) 671, 23 N.R. 410, 78 C.L.L.C. Â14,181; Ontario (Attorney General) v. Big Canoe (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, [2002] O.J. No. 4596, 220 D.L.R. (4th) 467, 22 C.P.R. (4th) 169 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 31]; Pembroke (City) Police Services Board v. Kidder (1995), 1995 7172 (ON SC), 22 O.R. (3d) 663, [1995] O.J. No. 682, 123 D.L.R. (4th) 596, 9 C.C.E.L. (2d) 242 (Gen. Div.); R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, [1999] S.C.J. No. 16, 42 O.R. (3d) 800n, 171 D.L.R. (4th) 193, 237 N.R. 86, 133 C.C.C. (3d) 257, 24 C.R. (5th) 365 (sub nom. R. v. Shirose); R. v. Panel on Take-overs & Mergers; Ex Parte Datafin plc., [1987] Q.B. 815 (C.A.); Rankin v. Alberta Curling Federation Appeals Committee, [2005] A.J. No. 1759, 2005 ABQB 938, 262 D.L.R. (4th) 484, 54 Alta. L.R. (4th) 373, 390 A.R. 246, 147 A.C.W.S. (3d) 532; Re A Reference Under The Constitutional Questions Act, 1957 110 (ON CA), [1957] O.R. 28, [1957] O.J. No. 616, 7 D.L.R. (2d) 222, 118 C.C.C. 35 (C.A.); Reference Re: Royal Prerogative of Mercy upon Deportation Proceedings, 1933 40 (SCC), [1933] S.C.R. 269, [1933] 2 D.L.R. 348, 59 C.C.C. 301; Regina (Beer (trading as Hammer Trout Farm)) v. Hampshire Farmer's Markets Ltd., [2004] 1 W.L.R. 233 (C.A.); Ridge v. Baldwin, [1963] 2 All E.R. 66, [1964] A.C. 40, [1963] 2 W.L.R. 935, 61 L.G.R. 369, 127 J.P. 295 (H.L.); Ripley v. Investment Dealers Assn. (Business Conduct Committee), [1991] N.S.J. No. 452, 108 N.S.R. (2d) 38, 30 A.C.W.S. (3d) 344 (C.A.), affg 1990 4150 (NS SC), [1990] N.S.J. No. 295, 99 N.S.R. (2d) 338, 23 A.C.W.S. (3d) 864 (T.D.); Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour); Scheerer v. Waldbillig, 2006 6460 (ON SCDC), [2006] O.J. No. 744, 265 D.L.R. (4th) 749, 208 O.A.C. 29, 146 A.C.W.S. (3d) 5 (Div. Ct.); Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc., 1987 2461 (BC SC), [1987] B.C.J. No. 2074, 18 B.C.L.R. (2d) 372, 47 D.L.R. (4th) 51 (S.C.); Vander Zalm v. British Columbia (Acting Commissioner of Conflict of Interest), 1991 149 (BC SC), [1991] B.C.J. No. 2019, 56 B.C.L.R. (2d) 37 80 D.L.R. (4th) 291, 1 Admin. L.R. (2d) 214 (S.C.); Volker Stevin N.W.T. ('92) Ltd. v. Northwest Territories (Commissioner), 1994 5246 (NWT CA), [1994] N.W.T.J. No. 7, [1994] 4 W.W.R. 236, 113 D.L.R. (4th) 639, [1994] N.W.T.R. 97, 22 Admin. L.R. (2d) 251 (C.A.) Statutes referred to Canada Labour Code, R.S.C. 1985, c. L-2, ss. 36.1 [as am.], 37 Indian Act, R.S.C. 1985, c. I-5 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1 "statutory power", "statutory power of decision" [as am.], 2 Police Services Act, R.S.O. 1990, c. P.15, s. 54 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 38.10 [as am.] Authorities referred to Dicey, A.V., Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959) [page135] Driedger, E.A., The Construction of Statutes (Toronto: Butterworths, 1974) Hogg, P., Constitutional Law of Canada, looseleaf (Toronto: Carswell, 1995) Hogg, P. & P. Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) Mullan, D., "Administrative Law at the Margins" in M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) Mullan, D.J., et al., Administrative Law: Cases, Text & Materials, 5th ed. (Toronto: Emond Montgomery, 2003) Taggart, M., ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997) Wade, H.W.R., "Procedures and Prerogative in Public Law" (1985) 101 L.Q.R. 180

Joseph A. Bisceglia, for applicant. Brian T. Daley, for respondents.

[1] BY THE COURT: -- The applicant, Allan McDonald, was a First Nations Constable with the Anishinabek Police Service ("APS"). During a training course at the Ontario Police College, a number of complaints of sexual misconduct were made against him. On November 29, 2001, he was expelled from the training program and simultaneously, the Chief of Police of the APS terminated his employment. He brings this application for judicial review alleging that the Police Chief was without statutory authority to discharge him and that there was a lack of procedural fairness and a denial of natural justice. He seeks reinstatement and payment of his wages from the date of his termination.

Factual Background

[2] The applicant accepted an offer of probationary employment with the APS commencing July 3, 2001 as a First Nations Constable with the rank of police cadet and was appointed as a First Nations Constable for the Province of Ontario pursuant to s. 54 of the Police Services Act, R.S.O. 1990, c. P.15 by the Commissioner of the Ontario Provincial Police.

[3] Commencing September 12, 2001, he was enrolled in a course at the Ontario Police College where he was part of a class of 38 cadets from various police services. His continued employment was conditional on successful completion of the course.

[4] On the morning of November 28, 2001, the College first learned of complaints regarding the applicant's alleged sexual misconduct and the Protocol Officer of the College conducted an investigation. Based on his investigation, he concluded that there were six complainants, all female, and 12 witnesses in relation to [page136] 13 instances. On November 29, 2001, the College contacted Police Chief Glen Bannon of the APS and advised him of the nature of the complaints and that the applicant would be interviewed later that day.

[5] During the lunch hour on November 29, 2001, the primary complainant reported a new allegation. According to the applicant, he was taken from class to a room and "cross- examined" by a staff officer of the College for about 20 minutes with another officer present who was a member of the APS attending a firearms course at the College. According to the respondent, he was advised of the nature of the complaints, given several specifics and asked to respond to each one. The applicant admitted being present at the time of the events, but denied the allegations of misconduct. After the meeting concluded, the applicant was told to go to his room and to remain there.

[6] The College then contacted Chief Bannon as it wanted immediate instructions from him as to what course of action should be taken. It made clear to him that the College wanted the applicant off its grounds that day. As it happened, Chief Bannon was in negotiations with the applicant's union, the Canadian First Nations Police Association ("CFNPA"). He conferred with two union negotiators regarding the complaints. He concluded, without speaking to the applicant, that the complaints of sexual misconduct had been adequately investigated, that the applicant had been provided with a sufficient opportunity to respond, that his denials were not credible and that the appropriate response was immediate discharge. He prepared a letter the same day terminating the applicant's employment "for cause arising from the events of sexual harassment which occurred at the Ontario Police College".

[7] On December 2, 2001, the applicant met with Chief Bannon who agreed to provide him with the particulars of the complaints, which were in the possession of the College, as soon as he received them. A week or so later, the applicant was referred to the lawyer for the APS who told him that there was "an agreement" between his union and the Police Chief not to grieve his discharge. In his affidavit sworn January 28, 2002 in support of this application, the applicant deposes that he at no time had any discussions with representatives of the CFNPA and did not know on what basis Chief Bannon had made the alleged agreement with the CFNPA. The CFNPA denies any agreement with the applicant's employer not to grieve the discharge, but acknowledges that its representatives told Police Chief Bannon that if the allegations could be substantiated and the applicant contacted it for representation, it would not grieve the matter. The CFNPA says the applicant never contacted it requesting representation. [page137]

Procedural History

[8] Following his termination, the applicant pursued a remedy before this court by issuing an application for judicial review on January 15, 2002. The respondent took the position that the Divisional Court had no jurisdiction to review the matter as the relationship between Mr. McDonald and the APS was governed by the Canada Labour Code, R.S.C. 1985, c. L-2 and the Canada Industrial Labour Relations Board (the "Board"). As a complaint to the Board was required to be filed within 90 days of termination, the applicant also filed a complaint with the Board on February 8, 2002 under s. 37 of the Code alleging violation of the duty of fair representation.

[9] The application for judicial review came before this court on September 30, 2002 and was adjourned pending the completion of the Board proceedings. By this time, the applicant had settled with the Ontario Police College and on consent, the application against the College was withdrawn.

[10] The Board heard the applicant's complaint on February 12 and 13, 2003. On May 8, 2003, it was dismissed without reasons on the basis that the Board did not have the jurisdiction to hear it. The Board indicated that written reasons would follow. The applicant then sought a new date for the hearing of this application, which was opposed by the respondent until the Board proceedings were complete. No new date was set.

[11] On June 5, 2003, the applicant brought a motion before the Federal Court of Appeal requesting an extension of time to file an application for judicial review in that court, if an appeal was in order, to preserve his right to appeal. An order was granted extending the time for filing an appeal to 30 days after receipt of the Board's reasons.

[12] In 2003 and 2004, the applicant wrote to the Board a number of times in an effort to learn when he might expect to receive its reasons. He also wrote on January 27, 2005 to the Chief Justice of the Superior Court of Justice and to the Registrar of the Divisional Court seeking a new date for the hearing of this application or for directions.

[13] The Board's reasons for decision issued by Vice-Chair D.G. Ruck were released on or about May 6, 2005, two years after the hearing.

Proceedings before the Board

[14] Before the Board, the applicant submitted that his dismissal was without cause and unjust and that the failure of the CFNPA to grieve the matter was in violation of s. 37 of the [page138] Code. He submitted that he was entitled to a hearing before the Board to determine if the dismissal was justified. In written submissions filed with the Board, he referred to several Board decisions and submitted that they stood for the proposition that the Canada Labour Code applied in matters involving First Nations Police Officers. He relied on s. 36.1 of the Code which provides:

36.1(1) During the period that begins on the date of certification and ends on the date on which a first collective agreement is entered into, the employer must not dismiss or discipline an employee in the affected bargaining unit without just cause.

(2) Where a disagreement relating to the dismissal or discipline of an employee during the period referred to in subsection (1) arises between the employer and the bargaining agent,

(a) the bargaining agent may submit the disagreement to an arbitrator for final settlement as if it were a difference; and,

(b) sections 57 to 66 apply, with the modifications that the circumstances require, to the disagreement.

[15] The applicant submitted that it was not inconsistent to seek a remedy under the Code and also under the Police Services Act so as not to prejudice his position. He sought an order from the Board setting aside his discharge and reinstating him with pay. He did not specifically seek an order of the Board directing the CFNPA to grieve his discharge, but the effect of the applicant's complaint was to direct the CFNPA to advance a grievance respecting his discharge.

[16] The CFNPA's position was that while it was a certified bargaining agent for employees of the APS and it could advance a grievance on behalf of the applicant pursuant to s. 36.1 of the Code, it could not be compelled to do so where no collective agreement existed. The Board therefore lacked jurisdiction. In the alternative, it submitted that if the Board had jurisdiction, it should dismiss the complaint as the applicant had never requested representation.

[17] The Board found (and it is not disputed) that the applicant's dismissal on November 29, 2001, occurred after the date of certification of the CFNPA as the bargaining agent for APS police constables, but before ratification of the collective agreement between the union and the APS, which became effective on February 19, 2002. The Board stated that two pre-conditions must be met before the Board is able to entertain a complaint under s. 37 of the Code: (1) there must be a bargaining agent for a bargaining unit; and (2) there must be an employee in the unit who has rights under the collective agreement.

[18] The Board concluded in paras. 39 and 40: [page139]

Based upon the Board's findings that: (a) the collective agreement between the Anishinabek Police Service and the Canadian First Nations Police Association was ratified subsequent to the date of the complainant's termination, (b) the retroactivity clause does not preserve the rights under section 37 of the Code, and (c) sections 36.1 and 57 to 66, when read together, do not create a collective agreement; the Board concludes that there was no collective agreement in operation at the time of the complainant's dismissal. The complainant, consequently, cannot be said to have had rights under a collective agreement, and accordingly, the second condition as noted above, is not met.

In view of the foregoing, the Board is unable to entertain the complaint, and it must be dismissed. The solution to Mr. McDonald's complaint would appear to lie in another forum, and as has been noted previously, proceedings have already been instituted by the complainant.

[19] The applicant did not pursue the application for judicial review in the Federal Court of Appeal.

Position of the Parties on this Application

[20] It is the applicant's position that the provisions of the Police Services Act apply to the applicant's discharge and that this matter is properly before this court as an application for judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 ("JRPA"). Conversely, it is the respondent's position that First Nations Constables, although appointed under the Police Services Act, are not governed by that Act in matters of discipline and discharge. It submits that the applicant's discharge is a labour relations matter, that the Board has exclusive jurisdiction to deal with this under the Canada Labour Code and only upon a grievance filed by the CFNPA.

The Statutory and Contractual Framework

[21] There are four sources of "law" available, each of which must be considered in the analysis. The Canada Labour Code, the Code of Conduct, the Tripartite Agreement and the Police Services Act all affect the issue of the proper handling of the dismissal of a First Nations Constable. How do we approach this complex of laws? While the four sources are not all statutes, two of them are and the other two are ultimately derived from the statutory powers of governments: Canada's over Indians and federal labour relations; and Ontario's over police. It seems appropriate to begin the analysis from a statutory perspective.

[22] The modern rule of statutory interpretation was formulated by Elmer Driedger [See Note 1 below] and was accepted as the preferred [page140] approach by the Supreme Court in Rizzo. [See Note 2 below] In Big Canoe, [See Note 3 below] the Court of Appeal discussed the rule at p. 173 O.R.:

Finally, the modern interpretation method was reformulated in Canada by Professor R. Sullivan: Driedger on the Construction of Statutes (3rd ed. 1994) at p. 131:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy in its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. [See Note 4 below]

[23] This method requires us to consider and reconcile the provisions of the four sources. The overall scheme derives from the Tripartite Agreement, which expresses the political will of the parties -- Canada, Ontario and various First Nations -- to create autonomous First Nations Police Services to conduct policing on First Nations Lands. The Agreement recognizes that the constitutional jurisdictions of Canada and Ontario must be respected, as must the particular status of the First Nations and the expressed desire of all parties to ensure effective and culturally sensitive policing on the lands of the participating First Nations.

The Tripartite Agreement

[24] The Anishinabek Police Service is an autonomous, independent Aboriginal police service with its own Police Governing Authority. It was created by the Anishinabek Police Service Agreement, 1992, and continued by the Anishinabek Police Service Agreement 1999-2004, ("Tripartite Agreement") which is a tripartite agreement among the federal government, the provincial government and a number of First Nations as represented by their Chiefs and Councils. Its purpose is to recruit Aboriginal [page141] persons to provide policing services to the member First Nations. The agreement in its present form was signed on or about December 1999.

[25] The Anishinabek Police Governing Authority is incorporated under Ontario legislation as a non-profit corporation composed of a representative from each member nation. It selects a Police Chief and recruits and hires Aboriginal men and women in various ranks and job descriptions to provide policing services. When hired by the Police Governing Authority, they are empowered as constables to enforce by-laws enacted pursuant to provisions of the Indian Act, R.S.C. 1985, c. I-5. Their broader powers as police officers derive from their appointment as First Nations Constables pursuant to s. 54 of the Police Services Act, which is discussed below.

[26] Certain portions of the 1999-2004 Agreement are of particular interest in the present analysis:

Article 2.1: Anishinabek Police Officer means a sworn member of the Anishinabek Police Service who exercises the powers of a police officer in and for the Province of Ontario and who is appointed as a First Nation Constable pursuant to section 54 of the Police Services Act;

Article 7.1: The Police Governing Authority is hereby continued and shall continue to act as the employer of the members of the APS.

Article 7.4: It shall be the responsibility of the Police Governing Authority to:

(c) recruit and hire officers and civilian staff;

(h) maintain an APS Code of Conduct to deal with discipline matters for officers . . .

Article 12.1: APS Police Officers shall be selected and hired by the Police Governing Authority and empowered as constables to enforce by-laws enacted pursuant to the provisions of the Indian Act . . . and appointed pursuant to Section 54 of the Police Services Act . . .

Article 29.6: Nothing in this Agreement shall be construed so as to preclude the OPP from discharging duties under the Police Services Act or under applicable statutory or common law.

[27] The scheme of this Agreement is to mesh the Indian Act responsibilities of Canada with the police responsibilities of [page142] Ontario so as to create an autonomous Aboriginal police force to police the reserves with cultural sensitivity, but with a limited degree of traditional police involvement at the key points of entry into and exit from the police service. Article 12.1 illustrates the dichotomous position of the First Nations Constable: chosen and employed by the APS, but given the powers of a police officer only after the OPP Commissioner is satisfied to make the appointment under s. 54 discussed below. Similarly upon exit from the APS, the involvement of the Commissioner, the need for consultation with the Police Governing Authority, the requirement of giving the First Nations Constable reasonable information as to the reasons for termination and an opportunity to reply, all provide a circumstantial guarantee of fairness to the First Nations Constable and professionalism in the Service. The Commissioner is independent of the particular First Nation, is a professional and senior police officer and is responsible for the administration of a very large police force. He or she is well placed to carry out the function required by s. 54.

The Code of Conduct

[28] It is the responsibility of the Police Governing Authority under Article 7.4(h) of the Agreement to maintain an internal Code of Conduct. At the time of the applicant's discharge, a Code of Conduct, dated June 1995, was in effect.

[29] The Code of Conduct establishes a set of rules and guidelines by which it is expected that the police officers of the APS will conduct themselves. It distinguishes between minor defaults and major defaults. It sets out separate procedures for the administration of discipline for minor defaults and major defaults. The Chief of Police or his delegate has the discretion to determine whether a default is major or minor. Termination of employment is only available for major defaults.

[30] With respect to minor defaults, the Chief of Police, or his delegate, determines the discipline. Should the police officer dispute the discipline, he or she can request a meeting with the person who decides the discipline and if still dissatisfied, with the Chief of Police. The decision of the Chief of Police is final for minor defaults.

[31] With respect to major defaults, the Chief of Police or a person designated by the Police Chief, is required to cause an investigation to be undertaken with respect to the allegation of misconduct. The investigation can be undertaken by a police officer from the APS or another police service of the same or [page143] higher rank. The investigating report is provided to the Chief of Police. If the Chief of Police or his delegate considers that disciplinary action is warranted, a disciplinary hearing is held by the Discipline Committee of the APS Police Governing Authority. After hearing evidence, the Discipline Committee determines if the evidence substantiates the allegations. In that event, it may impose sanctions, including dismissal. There is a limited right of appeal to the Board of Directors of the Police Governing Authority, whose decision is final.

[32] The procedures under the Code of Conduct for the resolution of allegations of misconduct of First Nations Constables are similar to the procedures set out in the Police Services Act, but the procedures in that Act do not apply directly.

Canada Labour Code

[33] The APS is unionized and the CBA contains a grievance procedure which applies to grievances, including grievances as to conduct and as to discipline, up to and including discharge grievances. The respondent submits that if, upon completion of the process in the APS internal Code of Conduct, there were to be a right to grieve the discipline under the Canada Labour Code, the result would be considerable delay in resolving discipline issues and significant process costs associated with discipline. This result is inconsistent with labour relation policies of expedition and efficiency. For this reason, the respondent submits that the internal Code of Conduct was replaced by the Canada Labour Code statutory scheme when the CFNPA obtained certification.

[34] Counsel for the respondent referred us to Anishinabek Police Service v. Canadian First Nations Police Assn. (Goulais Grievance), [2001] C.L.A.D. No. 281, a decision of Arbitrator Brent, a labour arbitrator appointed under the Canada Labour Code. That case dealt with a grievance of a First Nations Constable who was employed by the APS. He was dismissed after he failed to pass the Ontario Police College program which was a condition of his employment as it was for the applicant. As in this case, the grievor was dismissed in the period following certification and before a first collective agreement was entered into. However, unlike this case, the CFNPA grieved his dismissal and he was represented by the CFNPA at the hearing before the arbitrator.

[35] The arbitrator found that he had jurisdiction under s. 36.1 of the Code to hear the grievance. He concluded that the dismissal was "administrative" rather than "disciplinary" and there was no obligation on the APS to hold a disciplinary hearing. [page144] However, in coming to this conclusion, he had to consider the circumstances of the dismissal and states at para. 48:

The Association relied on the decision of the Supreme Court of Canada in Nicholson v. Haldimand Norfolk. There the probationary constable was peremptorily dismissed without reasons and without the opportunity to respond. Here the grievor knew prior to going to OPC that his failure there would result in the termination of his employment . . . Under the circumstances, I do not consider that the APS was obliged to provide the grievor with any opportunity for a hearing; however, if he brought forward any reasons as to why the standard should not be enforced, it would be obliged to listen. He probably should have been invited to do so; however the APS's failure could be adequately remedied by this tribunal had there been such reasons. There were not.

[36] It is apparent from the above extract that Arbitrator Brent was of the view that if Mr. Goulais' dismissal had been a disciplinary dismissal, he would have been entitled to a hearing before a grievance discharge hearing occurred. We agree. In our view, that hearing would have taken place in accordance with the Code of Conduct adopted by the APS. It would only be at the conclusion of that hearing process that a discharge grievance could arise. Given the dual nature of the APS, which is both an employer under the federal labour regime and the operator of a professional police force, the two systems must live together. We therefore reject the respondent's submission that the Canada Labour Code has supplanted the APS Code of Conduct.

[37] It is evident that in the present case the Code of Conduct procedures were not followed. However, the Code of Conduct is not a statute and in terminating the applicant's employment without a hearing, the Chief of Police was not exercising a "statutory power" or a "statutory power of decision". His authority to discipline the applicant is a creature of contract, rather than statute. It is conferred on him by the Code of Conduct and delegated to him by the Police Governing Authority, which is responsible under Article 7.4(h) of the Tripartite Agreement for maintaining the Code of Conduct to deal with discipline matters for police officers.

[38] It was submitted, therefore, by the respondents, that this court has no jurisdiction to judicially review a decision made under the Code of Conduct because no statutory power of decision is involved. It is the Police Governing Authority that has the authority to compel adherence to its Code. If a dissatisfied party resorts to the grievance procedure, the matter enters into a statutory stream at the end of which recourse may be had to the courts on judicial review, but that was not the course followed. Later in these reasons we will deal with the basis of our jurisdiction. [page145]

The Police Services Act

[39] The main submission of the applicant is that there are procedural obligations imposed on the APS Chief of Police under the Police Services Act when he intends to discharge a police officer employed by the APS. He submits that discharge is a power that can only be exercised by the Commissioner of the Ontario Provincial Police under s. 54 of the Act. It provides:

54(1) With the Commission's approval, the Commissioner may appoint a First Nations Constable to perform specific 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 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 Commission also has the 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.

[40] Under the Police Services Act, "Commission" and "Commissioner" refer to the Ontario Civilian Commission on Police Services and the Commissioner of the Ontario Provincial Police. "Police force" means the Ontario Provincial Police or a municipal police force. The APS is neither.

[41] "Police officer" is defined under the Act as "a chief of police or any other police officer, but does not include a . . . First Nations Constable . . .". By excluding First Nations Constables from the definition of police officer, the legislature must have intended that the general provisions of the Act would not apply to First Nations Constables. Unlike other police services which are subject to statutory discipline procedures under the Police Services Act, it would appear that the APS does not have available to it a statutory discipline procedure that it can invoke, unless it can be found in s. 54. Instead, as noted, it has the Code of Conduct [page146] followed by resort to the grievance procedure under the collective bargaining agreement and the Canada Labour Code. But there is a gap in the scheme so far: while the hiring of APS police officers, empowered to enforce by-laws under the Indian Act, is the responsibility of the Police Governing Authority, their status as First Nations Constables, and the wider police powers thereby conferred, is granted only by the Commissioner and can only be removed by the Commissioner.

[42] Upon analysis of s. 54, it is the Commission, and the Commissioner, which have the power to appoint and terminate First Nations Constables; in the case of appointment to duties on a reserve only with the approval of the Police Governing Authority; and in the case of termination, only after consultation (but not approval) of that Authority. The power to appoint expressly includes the power to suspend or terminate: s. 54(5). Apart from the possible (and here irrelevant) exception of what arbitrator Brent called "administrative" dismissal, e.g., for failure in a prescribed course at OPC, it seems that the Police Chief cannot dismiss a First Nations Constable: that power is vested in the Commissioner and the Commission.

[43] Although it is a limited right, s. 54(7) expressly requires that before his appointment as a First Nations Constable is terminated the First Nations Constable shall be given "reasonable information" and an opportunity to "reply, orally or in writing as the Commissioner or the Commission . . . may determine" (emphasis added). The underlined portion strongly supports the view that it is those bodies which determine the termination issue, and that they do it only after according a statutory minimal amount of procedural fairness to the First Nations Constable. There is thus a scheme within the Police Services Act to provide a First Nations Constable facing termination of his appointment as such with an opportunity to be heard, albeit a minimal one.

[44] How then can these powers be reconciled with each other? First, one must recognize that the Tripartite Agreement is a political agreement made originally in 1992 among parties who did not intend thereby to yield existing legislative responsibility to each other. The preamble recites the legislative responsibility of Canada for Indians and lands reserved for Indians, the legislative responsibility of Ontario for the administration of justice in the province, and the existing rights of the Aboriginal peoples, their mutual desire to co-operate in establishing police services and that the Agreement did not alter existing constitutional authority, responsibility, jurisdiction or rights. It has been renewed periodically and the Agreement in place at [page147] the time relevant to this case is the Anishinabek Police Service Agreement 1999-2004.

[45] While the intention is to create autonomous police forces on Indian lands, the provisions of s. 54 provide modest limitations on that autonomy, consistent with the responsibility of the province for policing services. Appointment of a First Nations Constable is by the Commissioner, but if the responsibilities of the appointee include policing on a reserve, the Council must agree and the APS is the employer. Dismissal of a First Nations Constable is also by the Commissioner who must provide reasonable information and an opportunity to reply. Thus, it would appear that the Chief can terminate the employment of a First Nations Constable but only the Commissioner can terminate the status of being a First Nations Constable.

[46] In the present case, the document appointing the applicant as a First Nations Constable expressly provided that the appointment was "so long as employed by the APS". Hence the practical effect of the dismissal by the Chief was to end the appointment as well. But that evades the purpose of s. 54, which is to provide some Ontario police input into the termination of First Nations Constable status. It is not clear whether the Commissioner can delegate such a power, but it is not necessary to decide the point. Assuming the "so long as employed" clause is a lawful and effective delegation of the Commissioner's authority to the Chief, such a delegation necessarily carries with it the obligation attached to the power being delegated: to provide the information and the opportunity to be heard in accordance with the section.

[47] The Chief did not disclose to the applicant the allegations being made, and the APS solicitors expressly refused to do so later. The applicant had no opportunity to address the Chief to rebut allegations of which he was kept in ignorance except for the limited information given at the College. On this reasoning, the court has jurisdiction to set aside the statutory decision the Chief made as the Commissioner's delegate and restore the applicant's status as a First Nations Constable.

[48] But this is scarcely a satisfactory outcome: the applicant is left with a status but no livelihood. We therefore turn to the larger question of the scope of certiorari.

[49] The case was largely argued on the basis that there had to be a statutory power of decision involved before the court could intervene and none existed: the Chief's power to hire and fire was derived from contract and not from statute. The foregoing analysis focused on this approach, but in our view, this court's jurisdiction is not so confined as that. [page148]

[50] Section 2(1) of the JRPA provides:

2(1) On an application by way of originating notice, which may be styled "Notice of Application for Judicial Review", the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power. [See Note 5 below]

[51] On a plain reading of the JRPA, where an injunction or a declaration is sought, judicial review must relate to a statutory power. However, where the order sought is in the nature of mandamus, prohibition or certiorari, the exercise of a statutory power is not required.

[52] The purpose of requiring a "statutory power" as a prerequisite to relief in the form of a declaration or injunction is to restrict the JRPA's application to only the public, and not the private, law uses of these remedies. However, as the prerogative writs are only available as public law remedies, no such limitation is required. [See Note 6 below]

[53] While early interpretations of s. 2(1)1 of the JRPA may have read in the requirement of a "statutory power" as a prerequisite to relief in the nature of mandamus, prohibition or certiorari, subsequent cases have rejected this interpretation. Rather, the prerogative writs are available where a public decision-maker owes a duty of fairness. [See Note 7 below]

[54] Further, to read the requirement of a "statutory power" into s. 2(1)1 of the JRPA would have the absurd result of either abolishing the common law right to judicial review of decisions not made pursuant to a statutory power or requiring applicants [page149] to commence such proceedings in the Superior Court contrary to the scheme in the JRPA of allocating applications for judicial review to the Divisional Court.

[55] Thus, in our view, the availability of the prerogative writs is not circumscribed by the JRPA and the Divisional Court's jurisdiction to issue such relief is determined by the scope of the prerogative writs at common law.

The Evolving Nature of the Prerogative Writs

[56] The scope of the prerogative writs has never been well defined and has evolved to meet the ever-changing nature of the administrative state. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. [See Note 8 below]

[57] The evolution of the prerogative writs was discussed by Dickson J. for the minority, in Martineau v. Matsqui Institution. [See Note 9 below] He noted the adaptable nature of certiorari, stating [at p. 616 S.C.R.]:

[c]ertiorari evolved as a flexible remedy, affording access to judicial supervision in new and changing situations . . . Nor has perception of certiorari as an adaptable remedy been in any way modified. The amplitude of the writ has been affirmed time and again.

The Review of Boards or Bodies not Constituted under Statute

[58] The seminal decision on the court's supervisory jurisdiction over a board or body not constituted under statute is [page150] R. v. Criminal Injuries Compensation Board, Ex p. Lain. [See Note 10 below] In this case, review was sought of a decision of a board established, not by statute, but pursuant to the prerogative powers of the executive branch of government. Lord Parker C.J. was of the view that certiorari applies to every body of a public, as opposed to private, character that has a duty to act judicially. Diplock L.J. held that the court's supervisory jurisdiction was not dependent on the source of the tribunal's authority, except where the source was a private agreement of the parties. Where novel tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunals to the supervisory jurisdiction of the High Court is based.

[59] Ashworth J. was of the view that the board had sufficient public or official character to negate the notion that the board was a private or domestic tribunal, as the board was established by the executive after debates in Parliament and the board was funded by the government. Ashworth J. continued to state that:

[i]t is a truism to say that the law has to adjust itself to meet changing circumstances and although a tribunal, constituted as the board, has not been the subject of consideration or decision by this court in relation to an order of certiorari, I do not think that this court should shrink from entertaining this application merely because the board had no statutory origin. It cannot be suggested that the board had unlawfully usurped jurisdiction: it acts with lawful authority, albeit such authority is derived from the executive and not from an Act of Parliament.

[60] The panel concluded that the scope of judicial review was not limited to boards or bodies constituted under statute and extends to bodies established by the exercise of prerogative power.

The Review of Decisions Made Pursuant to Prerogative Powers

[61] Crown prerogative is "the residue of discretionary or arbitrary authority, which at any given time is left in the hands of the Crown". [See Note 11 below] It consists of "the powers and privileges accorded by the common law to the Crown". [See Note 12 below] [page151]

[62] The court's jurisdiction to review decisions made pursuant to prerogative powers was affirmed by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, [See Note 13 below] where the House emphasized that the controlling consideration in determining whether the exercise of a prerogative power is judicially reviewable is its subject matter, not its source, and the exercise of the prerogative will be amenable to the judicial process if it affects the rights of individuals.

[63] Similarly, in Black v. Canada (Prime Minister), [See Note 14 below] Laskin J.A. stated that the expanding scope of judicial review made it no longer tenable to insulate the exercise of a prerogative power from judicial review merely because the power was not a statutory power. Laskin J.A. affirmed the test set out by the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service, supra, and held that [at para. 51]:

the exercise of the prerogative will be justiciable, or amenable to the judicial process, if its subject matter affects the rights or legitimate expectations of an individual. Where the rights or legitimate expectations of an individual are affected, the court is both competent and qualified to judicially review the exercise of the prerogative.

[64] Thus, the prerogative writs are not limited in their application to boards or tribunals constituted under statute and may be applied to bodies constituted pursuant to prerogative powers, if the decision in question affects the rights or legitimate expectations of an individual. [See Note 15 below]

[65] In this case, the decision to dismiss Mr. McDonald is a decision that directly affects a specific individual's rights and is therefore a decision that is justiciable. Thus, if the APS was established pursuant to a prerogative power, its actions are reviewable by the Divisional Court. Some commentators take the view that prerogative powers consist only of powers that are unique to the Crown and do not include powers that are equally enjoyed by private persons -- such as the power to enter into contracts. [See Note 16 below] Other commentators take the view that every executive act taken without the authority of an Act of Parliament is done pursuant to Crown prerogative. [See Note 17 below] [page152]

[66] It is the latter view that is compatible with R. v. Criminal Injuries Compensation Board, supra, where a criminal injuries compensation board was treated as established by prerogative powers, despite the fact that a private citizen is equally empowered to make gratuitous payments to victims of crime. [See Note 18 below]

[67] Ultimately, however, the distinction between prerogative powers and natural person powers may be of little import, as in the view of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, there is no practical significance to the distinction between prerogative powers and natural person powers since, in either case, the power is reviewable by the court. [See Note 19 below]

[68] Under the broad view, the APS is established by way of a tripartite agreement between the federal and provincial governments and certain First Nations. The Agreement was entered into by the executive branch of government: the Solicitor Generals of Canada and Ontario and the Minister Responsible for Native Affairs. Thus, as establishing the APS was an act of the executive branch of government, it is subject to judicial review.

[69] Under the narrow view of prerogative powers, such that the power to enter into contracts is not part of Crown prerogative and is rather a part of the Crown's natural person powers, we are of the view that the Crown must have been exercising royal prerogative with respect to the creation of APS. While the power to contract is shared by all persons, private citizens do not enjoy the [page153] power to deal with Indian affairs, to create police forces and to grant them police powers. Thus, under either view of prerogative powers, the APS is subject to judicial review by the Divisional Court.

The Review of Other Non-Statutory Tribunals

[70] Even if the APS is not a body constituted pursuant to prerogative powers, the prerogative writs are available as a general remedy for supervision of the machinery of government: [See Note 20 below]

[c]ertiorari is available as a general remedy for supervision of the machinery of government decision-making. The order may go to any public body with power to decide any matter affecting the rights, interests, property, privileges, or liberty of any person. The basis for the broad reach of this remedy is the general duty of fairness resting on all public decision-makers. [See Note 21 below]

[71] The court's jurisdiction to review bodies that, while not established by statute or prerogative power, fulfill a public function is perhaps best illustrated in R. v. Panel on Take-overs and Mergers; Ex Parte Datafin plc. [See Note 22 below] In this case, the applicant sought to quash a decision of the Panel on Take-overs and Mergers, an unincorporated association that had no statutory, prerogative or common law powers but which nevertheless enforced a non-statutory code on take-overs and mergers. Relying heavily on R. v. Criminal Injuries Compensation Board, supra, the English Court of Appeal held that the Panel operated as an integral part of a system that performed public law duties and was therefore amenable to judicial review. Lloyd L.J. rejected the argument "that the sole test whether a body is subject to judicial review is the source of its power", because to so hold would "impose an artificial limit on the developing law of judicial [page154] review". [See Note 23 below] Rather, he held that the courts must look at the nature of the body. If the body is fulfilling a public law function, then the body in question is subject to judicial review:

I do not agree that the source of the power is the sole test whether a body is subject to judicial review ... Of course the source of the power will often, perhaps usually, be decisive. If the source of power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. If, at the other end of the scale, the source of power is contractual, as in the case of private arbitration, then clearly the arbitrator is not subject to judicial review: . . .

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may ... be sufficient to bring the body within the reach of judicial review. It may be said that to refer to "public law" in this context is to beg the question. But I do not think it does. The essential distinction, which runs through all the cases to which we were referred, is between a domestic or private tribunal on the one hand and a body of persons who are under some public duty on the other. [See Note 24 below]

[72] The principles in R. v. Panel on Take-overs and Mergers, supra, have been applied in Canada in Volker Stevin N.W.T. ('92) Ltd. v. Northwest Territories (Commissioner), [See Note 25 below] in Masters v. Ontario [See Note 26 below] and recently in Scheerer v. Waldbillig, [See Note 27 below] where the Divisional Court stated:

The only constant limit on the remedy [certiorari] is that it must be with regard to the performance of a public duty. If the source of a power is a statute, or subordinate legislation under a statute, then clearly the body in question will be subject to judicial review. This is not necessarily the case if the source of the power is contractual. The essential distinction is between a domestic or private tribunal, on the one hand, and a body of persons under some public duty on the other.

[73] In Masters v. Ontario, supra, Saunders J. had before him an application of a senior civil servant to quash, on grounds of lack of procedural fairness, investigative reports made into his conduct following a complaint of sexual harassment. The investigation was conducted pursuant to a policy directive dealing [page155] with workplace discrimination and harassment prevention. The directive had no statutory basis. Relying on Martineau v. Matsqui Institution, supra, and R. v. Panel on Take-overs and Mergers, supra, Saunders J. found that the applicant was entitled to procedural fairness and refused to quash the application for certiorari. While not bound by any statutory duty, the investigators making the report were part of the machinery of government and owed a duty of fairness.

Thus, in my view, in determining whether a body is subject to judicial review, the court must look, not only at the source of the power, but the nature of body's functions. Even where the body is not constituted under statute, or prerogative power, if the body is fulfilling a governmental function, then the body is part of the machinery of government and is subject to public law. However, the court must be cautious to distinguish between domestic tribunals -- private autonomous bodies such as consensual arbitrators and voluntary associations -- on the one hand, and the machinery of government, on the other. [See Note 28 below]

[74] Various factors can be used to distinguish domestic tribunals from public bodies, including:

-- The source of the board's powers; [See Note 29 below] [page156]

-- The functions and duties of the body; [See Note 30 below]

-- Whether government action has created the body, or whether, but for the body, the government would directly occupy the area, such that there is an implied devolution of power; [See Note 31 below]

-- The extent of the government's direct or indirect control over the body; [See Note 32 below]

-- Whether the body has power over the public at large, or only those persons who consensually submit to its jurisdiction; [See Note 33 below]

-- The nature of the body's members and how they are appointed; [See Note 34 below]

-- How the board is funded; [See Note 35 below]

-- The nature of the board's decisions -- does it seriously affect individual rights and interests; [See Note 36 below]

-- Whether the body's constituting documents, or its procedures, indicate that a duty of fairness is owed; [See Note 37 below] and

-- The body's relationship to other statutory schemes or other parts of government, such that the body is woven into the network of government. [See Note 38 below] [page157]

[75] Applying these criteria to the APS, it is difficult to imagine a function that is more public in nature than the enforcement of the laws of Ontario and Canada. Although incorporated as a non-profit corporation, the APS was created by government action through the Tripartite Agreement and, but for the Agreement, the Government would directly occupy the area through either the RCMP or the OPP. The source of the power exercised by the APS is entirely public. Its constables derive their police powers from a statutory appointment by the Commissioner. It exercises this power without the need for consent from those affected and can seriously affect the rights of citizens and police alike. As First Nations Constables, APS police officers exercise the powers of police officers across the province. [See Note 39 below] It is funded by Ontario and Canada with public funds. We conclude that it is a public body fulfilling a governmental function as part of the machinery of government and is therefore subject to judicial review.

[76] The APS decision to terminate Mr. McDonald's employment is an administrative and specific decision that affects his individual rights and interests. [See Note 40 below] If Mr. McDonald is a public officer, and not a mere employee, which is discussed below, then a duty of fairness is owed.

Is a Duty of Fairness Owed in this Case

[77] Under traditional common law principles, an employer may dismiss an employee without providing that employee with a hearing, unless the contract of employment specifies such a requirement. Moreover, even where a dismissal is wrongful, the only recourse available to the employee is an action in damages; there is no entitlement to reinstatement or specific performance.

[78] In contrast, public office holders -- even offices held at pleasure [See Note 41 below] -- are entitled to procedural fairness as a prelude to any dismissal and the affected person is entitled to apply to a [page158] court for judicial review of the decision. [See Note 42 below] A person is a public officer where his or her employment encompasses "some elements of a public nature" or has "a strong statutory flavour". [See Note 43 below] Police officers have traditionally been held to be public officers:

...there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the state which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. [See Note 44 below]

[79] In this case, Mr. McDonald was a First Nations Constable appointed pursuant to s. 54 of the Police Services Act. While he is not a police officer under the Police Services Act, he has all of the powers of such a police officer for the purpose of carrying out his specified duties. His specified duties are set out in the Agreement and correspond in substance to the duties of police officers in Ontario. [See Note 45 below] There is no reasonable basis on which to distinguish Mr. McDonald's appointment as a First Nations Constable from the status enjoyed by police officers. Further, even if Mr. McDonald is not a public officer by virtue of his status as a First Nations Constable, he is one because his employment has considerable elements of a public nature, authority and trust, in that his duties included enforcing the laws of Ontario and Canada. He is therefore a public office holder and a duty of fairness is owed prior to his dismissal. As noted earlier, he did not receive fairness. [page159]

Remedy

[80] The applicant relies on a line of authority beginning with Nicholson v. Haldimand Norfolk (Regional) Police Commissioners [See Note 46 below] in support of his submission that there was a duty of procedural fairness imposed on Police Chief Bannon. It is well established in the jurisprudence that the duty to act fairly includes the opportunity to know the case against you and to be given a reasonable opportunity to respond. The procedures in the APS Code reflect this, but Police Chief Bannon simply ignored them.

[81] We acknowledge that he was faced with a difficult decision as the Ontario Police College wanted the applicant off its grounds that day and the applicant's employment was conditional on successfully completing the training. Still, he was not entitled to ignore the Code. He was entitled to rely on the College's investigation for such matters as ordering the Constable home so the matter could be investigated, but that did not empower him to dismiss the applicant without a hearing. He was obliged to cause a hearing to be conducted before the Discipline Committee of the Police Governing Authority. The manner in which the applicant was dismissed did not meet the requirements of the Code and was procedurally unfair. To the extent the Chief was exercising the delegated power of the Commissioner, as discussed above, he similarly failed to grant the required procedural fairness.

[82] It follows that the application for certiorari is granted and the decisions to dismiss him and to terminate his status as FNC are quashed.

[83] The applicant asked in the amended Notice that, if he was successful, he be reinstated with back pay, or, in the alternative that we direct the trial of an issue under rule 38.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to determine the factual issues and the questions of back pay and/ or reinstatement. The respondent submitted, in the alternative, that should a trial of an issue be directed that any claim by the applicant to reinstatement or back wages be left for that trial to resolve.

[84] Rule 38.10, which applies to applications in the Superior Court, provides for the referral of disputed issues of fact to a judge to determine. The Divisional Court is a branch of the Superior Court and presumably can do so too. Certainly, neither party raised any issue of our jurisdiction to do so. [page160]

[85] In our view, the most appropriate remedy here would be a hearing before the Discipline Committee under the APS Code so that the applicant has the opportunity to respond to the allegations made against him in the forum provided. However, the APS counsel has contended strenuously that there is no jurisdiction in the Code of Conduct because it has been superseded by the CLRB, although the CLRB has ruled it has no jurisdiction and we have found the Code to be in force. It may be that the APS will decline to act. The next most appropriate relief would be a hearing before the Commissioner or delegate under the Police Services Act. However, the Commissioner is not a party and we have no jurisdiction to require a non-party to hold a hearing. Accordingly, we direct that unless, within 90 days of the release of these reasons, the APS issues a Notice of Hearing before the Discipline Committee, to take place within a reasonable time thereafter, there shall be a trial of an issue before a Superior Court Judge to determine if there was just cause for the dismissal of the applicant and to determine if he is to be reinstated, and whether back wages are to be paid and/or damages awarded and if so in what amount.

Costs

[86] The application for judicial review has succeeded and the basis for success was the denial of natural justice to the applicant. Even though he may yet fail to obtain any substantive relief, the applicant was forced to come to this court to vindicate his basic rights and should have his costs to date on the partial indemnity scale, payable forthwith. Submissions may be made in writing within 30 days as to the quantum.

Application granted.

Notes

Note 1: E.A. Driedger, The Construction of Statutes (Toronto: Butterworths, 1974), p. 67.

Note 2: Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at p. 41 S.C.R.

Note 3: Ontario (Attorney General) v. Big Canoe (2002), 2002 18055 (ON CA), 62 O.R. (3d) 167, [2002] O.J. No. 4596 (C.A.) [Leave to appeal refused, [2003] S.C.C.A. No. 31.].

Note 4: Quotation from 2747-3174 Québec Inc. v. Québec (Régie des permis d'alcool), 1996 153 (SCC), [1996] 3 S.C.R. 919, [1996] S.C.J. No. 112, per L'Heureux-Dubé J. at pp. 1005-06 S.C.R.

Note 5: The terms "statutory power" and "statutory power of decision" are defined in s. 1 of the JRPA.

Note 6: David J. Mullan et al., Administrative Law: Cases, Text & Materials, 5th ed. (Toronto: Emond Montgomery, 2003) at p. 1111.

Note 7: See Bezaire v. Windsor Roman Catholic Separate School Board (1992), 1992 7675 (ON SC), 9 O.R. (3d) 737, [1992] O.J. No. 1478 (Div. Ct.); Masters v. Ontario (1993), 1993 8530 (ON SC), 16 O.R. (3d) 439, [1993] O.J. No. 3091, 110 D.L.R. (4th) 407 (Div. Ct.); Mullan, supra, at 1111. The British Columbia Court of Appeal reached a similar conclusion under comparable legislation in Mohr v. C.J.A., Vancouver, New Westminster and Fraser Valley, 1988 3189 (BC CA), [1988] B.C.J. No. 2075, 32 B.C.L.R. (2d) 104 (C.A.), where Southin J.A. stated that relief in the nature of mandamus, prohibition or certiorari "is not limited to statutory powers . . . But the statute [the British Columbia equivalent to the JRPA] is limited to public, in contradistinction to private, rights and obligations".

Note 8: R. v. Criminal Injuries Compensation Board, Ex. p. Lain, [1967] 2 Q.B. 864 (C.A.), at p. 882 Q.B., per Lord Parker C.J. Lord Parker continued to note that domestic tribunals constituted under an agreement remained outside the ambit of certiorari. See also Re Liverpool Taxi Owners' Association, [1972] 2 All E.R. 589, at p. 596: "The long legal history of the former prerogative writs and of their modern counterparts, the orders of prohibition, mandamus and certiorari shows that their application has always been flexible as the need for their use in differing social conditions down the centuries had changed"; Vander Zalm v. British Columbia (Acting Commissioner of Conflict of Interest), 1991 149 (BC SC), [1991] B.C.J. No. 2019, 1 Admin. L.R. (2d) 214 (S.C.): "it was long thought that the scope of the court's power under the prerogative writs was confined to the exercise of a statutory or common law power but it is now well settled that the power goes beyond that. How far beyond is not well settled. Certainly it does not extend to private rights and obligations . . ."; R. v. Panel on Take-overs & Mergers; Ex Parte Datafin plc., [1987] Q.B. 815 (C.A.), at p. 849, per Lloyd L.J.: "[t]he prerogative writs have always been a flexible instrument for doing justice. In my judgment they should remain so".

Note 9: 1979 184 (SCC), [1980] 1 S.C.R. 602, [1979] S.C.J. No. 121.

Note 10: [1967] 2 Q.B. 864 (C.A.).

Note 11: A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959) at p. 424; adopted in Reference Re: Royal Prerogative of Mercy upon Deportation Proceedings, 1933 40 (SCC), [1933] S.C.R. 269, [1933] 2 D.L.R. 348, at pp. 272-73 S.C.R.; Attorney General v. De Keyser's Royal Hotel, [1920] A.C. 508 (H.L.), at p. 526; Black v. Canada (Prime Minister) (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, [2001] O.J. No. 1853 (C.A.). See also Peter Hogg and Patrick Monahan, Liability of the Crown, 3rd ed. (Toronto: Carswell, 2000) at p. 15.

Note 12: Peter Hogg, Constitutional Law of Canada, looseleaf (Toronto: Carswell, 1995) at p. 1.9.

Note 13: [1985] 1 A.C. 374 (H.L.).

Note 14: (2001), 2001 8537 (ON CA), 54 O.R. (3d) 215, [2001] O.J. No. 1853 (C.A.).

Note 15: See also Volker Stevin N.W.T. ('92) Ltd. v. Northwest Territories (Commissioner), 1994 5246 (NWT CA), [1994] N.W.T.J. No. 7, 22 Admin. L.R. (2d) 251 (C.A.), at para. 19.

Note 16: Liability of the Crown, supra, at p. 16; H.W.R. Wade, "Procedures and Prerogative in Public Law" (1985) 101 L.Q.R. 180.

Note 17: Liability of the Crown, supra, at p. 16; Dicey, supra, at p. 455.

Note 18: See Liability of the Crown, supra, at p. 16.

Note 19: Council of Civil Service Unions v. Minister for the Civil Service, supra, at pp. 409-10, per Lord Diplock: ". . . I have derived little practical assistance from learned and esoteric analyses of the precise legal nature, boundaries and historical origin of 'the prerogative,' or of what powers exercisable by executive officers acting on behalf of central government that are not shared by private citizens qualify for inclusion under this particular label . . . whatever label may be attached to them there have unquestionably survived into the present day a residue of miscellaneous fields of law in which the executive government retains decision-making powers that are not dependent upon any statutory authority but nevertheless have consequences on the private rights or legitimate expectations of other persons which would render the decision subject to judicial review if the power of the decision-maker to make them were statutory in origin . . . I see no reason why simply because a decision-making power is derived from a common law and not a statutory source, it should for that reason only be immune from judicial review . . .". See also Liability of the Crown, supra, at p. 16.

Note 20: Martineau v. Matsqui Institution, supra, per Dickson J.; Masters v. Ontario, supra; Scheerer v. Waldbillig, 2006 6460 (ON SCDC), [2006] O.J. No. 744, 265 D.L.R. (4th) 749 (Div. Ct.); see generally M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997).

Note 21: Martineau v. Matsqui Institution, supra, at p. 628 S.C.R., per Dickson J.

Note 22: [1987] Q.B. 815 (C.A.), recently affirmed in Regina (Beer (trading as Hammer Trout Farm)) v. Hampshire Farmer's Markets Ltd, [2004] 1 W.L.R. 233 (C.A.), at p. 240, per Dyson L.J.: "the law has now been developed to the point where, unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law".

Note 23: R. v. Panel on Take-overs & Mergers, supra, at p. 849 Q.B.

Note 24: R. v. Panel on Take-overs & Mergers, supra, at p. 838 Q.B.

Note 25: 1994 5246 (NWT CA), [1994] N.W.T.J. No. 7, 22 Admin. L.R. (2d) 251 (C.A.).

Note 26: (1993), 1993 8530 (ON SC), 16 O.R. (3d) 439, [1993] O.J. No. 3091 (Div. Ct.).

Note 27: 2006 6460 (ON SCDC), [2006] O.J. No. 744, 265 D.L.R. (4th) 749 at para. 19 (Div. Ct.).

Note 28: With respect to breaches of natural justice, in other provinces, the distinction between a public body and a domestic tribunal may be of little importance, as private tribunals owe a duty of fairness that can be enforced through the private law remedies of declaration and injunction. However, in Ontario, as the Divisional Court's jurisdiction with respect to those remedies is limited, as discussed above, the distinction remains important and applicants seeking to quash a decision of a private tribunal must commence an application in Superior Court. See Kaplan v. Canadian Institute of Actuaries, 1994 9065 (AB QB), [1994] A.J. No. 868, 25 Alta. L.R. (3d) 108 (Q.B.); Vancouver Hockey Club Ltd. v. 8 Hockey Ventures Inc., 1987 2461 (BC SC), [1987] B.C.J. No. 2074, 47 D.L.R. (4th) 51 (S.C.), involving a review of a decision of the NHL commissioner to suspend then L.A. Kings head coach Pat Quinn: "[t]he review by the court of orders made by an unincorporated association such as the N.H.L. through its president and chief executive officer (a domestic tribunal as it were) is limited. The power in no way includes the right in the court to substitute its decision for that of the domestic tribunal. The court is not a court of appeal. Rather, its power is narrow and it may only interfere if the order was made without jurisdiction (or against the rules) or if it was made in bad faith or contrary to the rules of natural justice"; Ripley v. Investment Dealers Assn. (Business Conduct Committee), 1990 4150 (NS SC), [1990] N.S.J. No. 295, 99 N.S.R. (2d) 338 (T.D.), affd [1991] N.S.J. No. 452, 108 N.S.R. (2d) 38 (C.A.); Rankin v. Alberta Curling Federation Appeals Committee, 2005 ABQB 938, [2005] A.J. 1759, 262 D.L.R. (4th) 484 (Q.B.); Mohr v. C.J.A., Vancouver, New Westminster and Fraser Valley, [1988 3189 (BC CA)](https://www.canlii.