COURT FILE NO.: 119/07 and 120/07
DATE: 20071213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SANDERSON AND SWINTON JJ.
B E T W E E N:
JANE DOE ONE, JANE DOE TWO, JANE DOE THREE, JANE DOE FOUR, JANE DOE FIVE, JANE DOE SIX, JANE DOE SEVEN, JANE DOE EIGHT, JANE DOE NINE, JANE DOE TEN, JANE DOE ELEVEN, JANE DOE TWELVE
Applicants
- and -
SERGEANT KEVIN DHINSA and ROBERT J. FITCHES
Respondents
AND BETWEEN:
HAMILTON POLICE SERVICES BOARD and CHIEF BRIAN MULLAN
Applicants
- and -
SERGEANT KEVIN DHINSA and ROBERT J. FITCHES
Respondents
Helen Pelton, for the Applicants, Jane Doe 1-12
Barrie Chercover, for the Respondent Sergeant Kevin Dhinsa
Brian Duxbury, for the Police Services Board
Marco Visentini, for the Police Chief
Barrie Chercover, for the Respondent Sergeant Kevin Dhinsa
HEARD at Toronto: December 13, 2007
SWINTON J.: (Orally)
[1] This Court has heard two applications for judicial review of the decision of Hearing Officer Robert J. Fitches dated February 14, 2007.
[2] Fitches quashed a Notice of Hearing that set out twenty-four charges of police misconduct against the respondent, Sergeant Kevin Dhinsa, on the grounds that the Notice of Hearing had not been served within the six month period required by s.69(18) of the Police Services Act, R.S.O. 1990, c.P.15 (the “Act”). Subsection 69(18) provides as follows:
If six months have elapsed since the facts on which a complaint is based first came to the attention of the chief of police or board, as the case may be, no notice of hearing shall be served unless the board (in the case of a municipal police officer) or the Commissioner (in the case of a member of the Ontario Provincial Police) is of the opinion that it was reasonable, under the circumstances to delay serving the notice of hearing.
[3] The applicants in Court File 119/07, eleven female police officers and one civilian woman employed by the Hamilton Police Services Board, made accusations of sexual harassment against Sergeant Dhinsa.
[4] Sergeant Dhinsa submits that the applicants in each of these applications for judicial review lack standing. The Chief of Police conceded that he has no standing, given the decision of the Court of Appeal in Watson v. Catney, 2007 ONCA 411, [2007] O.J. No. 231.
[5] The Jane Doe applicants are either members of the Hamilton Police Service or a civilian employee of the Hamilton Police Services Board. Paragraphs 57.7(c) and (d) of the Act prevent a member of the police force or an employee of a board from bringing a complaint of misconduct pursuant to s.56(1) against an officer who is a member of the same police service. Part V of the Police Services Act provides a complete disciplinary code. Given s.57(7), the Jane Doe applicants have no direct legal interest in the disciplinary process.
[6] We have great sympathy for these applicants, who have raised serious allegations of sexual harassment. However, their remedies for the wrongs of which they complain lie elsewhere. They do not have standing to challenge the decision of the Hearing Officer.
[7] The Hamilton Police Services Board submits that it should be granted standing because it is vitally affected by the Hearing Officer’s decision.
[8] The Court of Appeal in Watson v. Catney held that the Chief of Police had no standing to bring an application for judicial review of a Hearing Officer’s decision because s.70(1) of the Act confers a right of appeal only on the police officer and a public complainant. The Chief has no right of appeal because the Chief is, in effect, the decision-maker. To allow the Chief to bring an application for judicial review would allow him to do indirectly what he could not do directly (see paragraph 29).
[9] At paragraph 30, the Court of Appeal stated:
If, in the absence of an explicit appeal right, the Chief were granted standing to review his decision or, as in this case, the decision of a police officer he has delegated to hold the hearing on his behalf, it could erode confidence – on the part of police generally, those subject to discipline proceedings, and the public at large – in the independence and fairness of the discipline process. The PSA reflects principles of fairness and natural justice in that it does not allow the Chief, who has control of virtually all aspects of the discipline process, to seek to overturn a decision he does not like by a hearing officer he appointed. The Chief concedes that he cannot do this by way of appeal; in my view, a proper interpretation of the PSA, and considerations of principle and policy, preclude an identical attack grounded in judicial review.
[10] The Police Services Board exercises a broad supervisory power over the Chief of Police. For example, its responsibilities, as set out in s.31(1) of the Act, include:
(e) direct the chief of police and monitor his or her performance;
(i) establish guidelines for dealing with complaints made under Part V;
(j) review the chief of police’s administration of the complaints system under Part V and receive regular reports from the chief of police on his or her administration of the complaints system.
[11] The Police Services Amendment Act, 1997, S.O. 1997, c.8, s.35 amended the Police Services Act by inter alia removing the statutory right of appeal from a Hearing Officer’s decision to the Board. In doing so, the Legislature made clear its intention to limit the Board’s role in disciplinary proceedings against police officers to granting extensions of time pursuant to s.69(18).
[12] Like the Chief, the Board has no status to appeal the decision of a Hearing Officer under the Act. To allow it to challenge such a decision by judicial review would be contrary to the comprehensive Code in Part V of the Act and allow it to do indirectly what it could not do directly. In our view, the Board, too, lacks standing to bring its application.
[13] Accordingly, the applications for judicial review are dismissed.
JENNINGS J.
[14] The applications are dismissed for the oral reasons delivered today. No costs demanded and none awarded.
SWINTON J.
JENNINGS J.
SANDERSON J.
Date of Reasons for Judgment: December 13, 2007
Date of Release: January 10, 2008
COURT FILE NO.: 119/07 and 120/07
DATE: 20071213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SANDERSON AND SWINTON JJ.
B E T W E E N:
JANE DOE ONE, JANE DOE TWO, JANE DOE THREE, JANE DOE FOUR, JANE DOE FIVE, JANE DOE SIX, JANE DOE SEVEN, JANE DOE EIGHT, JANE DOE NINE, JANE DOE TEN, JANE DOE ELEVEN, JANE DOE TWELVE
Applicants
- and -
SERGEANT KEVIN DHINSA and ROBERT J. FITCHES
Respondents
AND BETWEEN:
HAMILTON POLICE SERVICES BOARD and CHIEF BRIAN MULLAN
Applicants
- and -
SERGEANT KEVIN DHINSA and ROBERT J. FITCHES
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 13, 2007
Date of Release: January 10, 2008