CITATION: Toronto Police Association v. Ontario (Civilian Commission on Police Services), 2010 ONSC 246

DIVISIONAL COURT FILE NO.: 210/07

DATE: 20100113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

aston, dambrot and karakatsanis JJ.

B E T W E E N:

TORONTO POLICE ASSOCIATION

Applicant

• and -

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Respondent

• and -

TORONTO POLICE SERVICES BOARD and CHIEF OF POLICE OF THE TORONTO POLICE SERVICE

Intervenors

Timothy S.B. Danson, for the Applicant

James Kendik and William J. Manuel, for the Respondent

J. Thomas Curry and Christopher E. Burkett, for Toronto Police Services Board

Glen F. Jennings and Don Park, for Chief of Police of the Toronto Police Service

HEARD AT TORONTO: November 23, 2009

M. DAMBROT J.:

[1] Section 25 of the Police Services Act permits the Ontario Civilian Commission on Police Services ("the OCCPS"), now the Ontario Civilian Police Commission (see S.O. 2009, c. 18, Sched. 23, s. 14) to investigate, inquire into and report on the conduct of law enforcement personnel, the administration of a police force, the manner in which police services are provided for a municipality or the police needs of a municipality at the request of the Solicitor General, a municipal council, or a municipal police services board, or of its own motion.

[2] The Toronto Police Association ("the TPA") is not an entity authorized by s. 25 to request that the Commission conduct an inquiry. Nonetheless, the TPA asked the Commission to exercise its authority under s. 25 and conduct a public inquiry into a variety of matters. After lengthy consideration, the Commission made certain recommendations in relation to the matters raised, but declined to exercise its powers under s. 25.

[3] The TPA brought an application for judicial review initially of the failure of the Commission to make its decision in a timely way. The TPA subsequently applied for judicial review of the Commission's ultimate decision, and asked this Court to order the Commission to hold a s. 25 inquiry or to "make the appropriate disposition addressing the central concerns" raised by the TPA.

BACKGROUND

[4] The TPA describes the request it made of the Commission as a request for an investigation or inquiry into the "gas pump incident" and its aftermath. The gas pump incident took place on February 20, 2005. A dispute arose that day as a result of Constable Alex Cheung of the Toronto Police Service ("the TPS") challenging Inspector David McLeod, a black senior officer in civilian clothing whom Cheung did not know, and asking McLeod to show him his identification, when McLeod began to fuel an unmarked car at a police gas pump. McLeod reacted strongly to Cheung's challenge, and insinuated that it was racially motivated. Cheung, who felt that he was doing his duty by inquiring into McLeod's identification, reported the incident to his superiors in his police division, including Staff Sergeant Ron Wretham. This set off a chain of events involving high level officers and association personnel and conflicting perspectives that need not be summarized for the purposes of this judgment, except to note the following.

[5] On February 22, 2005, Wretham and Cheung formally submitted a complaint against McLeod. McLeod, in turn, demanded that Wretham and Cheung be disciplined, but filed no discipline complaint against them. Ultimately, after many meetings and discussions had taken place, a further meeting chaired by then Acting Deputy Chief Blair was convened on March 31, 2005. McLeod and Cheung attended the meeting with their counsel. At the end of the meeting, McLeod and Cheung resolved the matter with a hand shake. The TPA says that this resolution came about under pressure and was unacceptable. Blair disagrees with this assessment.

[6] There are conflicting versions of the March 31 meeting, and the meetings and events that followed it. The TPA is of the view that the "gas pump" incident was never resolved. Blair is of the view that the only discipline complaint that had been filed was the one against McLeod, and that it had been resolved. No discipline complaint was ever filed against Wretham or Cheung.

[7] In early March, 2005, McLeod filed two human rights complaints, as distinct from discipline complaints, with the Manager of the TPS Human Rights Section: one against Wretham and one against Wretham's superior, Acting Inspector Wayne Pye, in relation to their handling of the gas pump incident. Blair was not made aware of these complaints at the time. There is no indication in the police records that these complaints were ever investigated.

[8] Although it is apparently unconnected to the gas pump incident, it is necessary to note that on June 29, 2005, Dave Wilson, the President of the TPA, made a formal conduct complaint against then Superintendent Keith Forde. Wilson demanded an investigation of his allegation that Forde had refused to shake Wilson's hand, and verbally attacked him in a raised and angry voice on the stairs leading into a convention centre at a public event. This complaint remained outstanding when Forde was promoted to Deputy Chief. On September 6, 2005, the TPS Board ("the Board") decided to decline to deal with the complaint against Forde on the basis that it was frivolous.

[9] On May 1, 2006, in a three volume request that exceeded 500 pages in length, the TPA urged the Commission to investigate, inquire into and report on (a) the conduct and performance of duties of specifically named Command Officers and Senior Officers within the TPS, and (b) the administration of the TPS. In particular, the TPS asked the Commission to "put an end to the ad hoc, discriminatory and unequal application of the Act and corresponding rules, regulations, procedures, policies and protocols which govern internal discipline within the TPS." In addition, the TPA asked the Commission to engage in a wide-ranging inquiry into fourteen specific areas of concern relating to the administration and day-to-day operations of the TPS, excerpted as follows:

1. That OCCPS undertake an investigation of the Toronto Police Service disciplinary system and other aspects of the Toronto Police Service management, to determine why there exists one standard for TPA members and another standard for Command Officers and Senior Officers, contrary to the rules, regulations, procedures and protocols of the Service and contrary to the Police Services Act.

2. To investigate why the recommendations and objectives of OCCPS' 1999 investigation into the disciplinary practices of the Toronto Police Service, as reflected in its "Report on Fact Finding into Various Matters with Respect to the Disciplinary Practice of the Toronto Police Service", have been abandoned and/or circumvented by the TPS.

3. To determine why there has been a systemic and management breakdown in the processing of disciplinary matters within the TPS, and to undertake the necessary changes to ensure that the integrity of OCCPS' 1999 Report is restored, and to instil confidence in the disciplinary process for TPA members.

4. That OCCPS institute a process and implement systems that will prevent the actions of Command Offices and Senior Officers from being shrouded in secrecy and which will prevent these officers from exercising their authority in an arbitrary, capricious and coercive manner. This includes the introduction of systems that allow TPA members to exercise their legal rights without fear of retribution.

5. That OCCPS investigate the circumstances surrounding the appointment of Bill Blair to the position of Chief of Police over that of Interim Chief of Police Michael Boyd; to determine the extent, if any, the PC Cheung/Staff Sergeant Wretham/Inspector McLeod dispute, and its public profile, had in the Toronto Police Services Board selecting Deputy Chief Blair over that of Interim Chief Boyd.

6. That OCCPS investigate and determine whether the public dissemination of information attributed to Chief Blair and in the case of Inspector McLeod, through his counsel, concerning a purported resolution of the dispute, constituted a breach of s. 80 of the Police Services Act.

7. That OCCPS investigate and determine how and why the OPP investigation into the PC Cheung/Staff Sergeant Whretham/Inspector McLeod affair, ordered by Interim Chief Michael Boyd, and agreed to by OPP Commissioner Gwen Boniface, was terminated upon the appointment of Bill Blair to the position of Chief of Police.

8. That OCCPS order Chief Bill Blair to honour the promise, undertaking and commitment that he gave to PC Cheung on March 31, 2005 and April 11, 2005 ... and the promise he gave Staff Sergeant Wretham to provide him with a copy of the complaint that Inspector McLeod lodged against Wretham. [citations omitted.]

9. That OCCPS restore integrity to the TPS Vision Statement, Mission Statement and the Core Values of the Service, by requiring all members of the Service to comply with same.

10. That OCCPS investigate who instructed Acting Staff Superintendent Tony Corrie to prepare a Report of Investigation pursuant to the Police Services Act dated April 14, 2005 concerning; the 42 division gas pump dispute, and to determine the mandate and scope of the investigation when Staff Sergeant Wretham was never served with the required written notice (TPS 649) informing him that he was a subject officer; when no formal investigation was undertaken, and following Deputy Chief Blair's public statements that on March 31, 2005, he had resolved the matter informally.

11. That OCCPS determine how it was possible for Deputy Chief Blair to publicly state days before he was appointed to the position of Chief of Police, that he had resolved the dispute between PC Cheung, Staff Sergeant Wretham and Inspector McLeod while Acting Staff Superintendent Corrie concluded in his Report of Investigation two weeks later that "attempts at many levels to resolve these issues informally have been unsuccessful".

12. That OCCPS investigate the entire handling of the PC Cheung/Staff Sergeant Wretham/Inspector McLeod dispute; determine how and why normal police procedures and protocols were not followed; and to restore justice and confidence in the system by taking corrective action.

13. That OCCPS determine how Senior Officers received important promotions while serious complaints of misconduct remained outstanding against these officers and which had not been investigated.

14. That OCCPS investigate and determine who instructed Superintendent Christopher White to prepare a Report of Investigation on Inspector McLeod's off-duty use of a police vehicle that bears the dates of both April 22, 2005 and November 28, 2005; the basis upon which Chief Blair rejected the findings and conclusions of the report, and why Chief Blair waited until after Superintendent Dicks announced his retirement, and after the six-month time limitation proscribed by s. 69(18) of the PSA had expired before ordering Dicks be punished.

[10] The members of the Commission were advised of the TPA's request at their monthly meeting in May 2006. The Commission established a working group comprised of members and senior staff to review the request. The working group met on a regular basis; focused on the areas of concern to the Commission; requested additional documents from the TPA, the Board, and the Chief of Police; and conducted interviews.

[11] Based on the findings of the working group, the Commission prepared an Interim Review. On September 6, 2007, the Commission sent a copy of the Interim Review to the TPA, the Board and the Chief of Police. In its accompanying letter, the Commission noted that while under no legal obligation to do so, it had carefully reviewed the information provided to it by the TPA, together with additional information it had obtained, and asked for additional information and comments concerning the substance of the Interim Review.

[12] The Commission then received additional input from the TPA, the Board and the Chief, and issued a Final Review in December 2007. In an accompanying letter, the Commission informed the parties that the following motion had been passed by the Commission:

The amended document [the Final Review] has been unanimously accepted and adopted by the Commission. Staff are directed to communicate the decision to the parties.

[13] The Commission went on to say that it had declined to exercise its discretion to invoke s. 25 of the Act as requested by the TPA and considered the matter closed.

[14] In the Final Report, the Commission identified three areas that had been of interest to it, namely:

1. The manner in which the TPS dealt with the "gas pump" incident that took place in February of 2005. In particular, was the informal resolution process followed in accordance with TPS policy, was the necessary paperwork signed off, and were the identified issues flowing from the incident investigated further?

2. The handling of the two human rights complaints filed by Inspector David McLeod against Staff Sergeant Ron Wretham and Inspector Wayne Pye.

3. The existence and application, in these circumstances, of a Board policy for members who are under consideration for promotion to the rank of Deputy Chief of Police and Chief of Police who at the same time are the subject of outstanding complaints.

[15] The Commission went on to say in the Final Report that while these three issues were of concern, they did not rise to the level of concern that would require invoking the powers under s. 25 to investigate, inquire into and report on the issues. As a result, the Commission exercised its discretion to deny the request of the TPA. It did, however, make four recommendations in relation to matters raised by the TPA pursuant to s. 22(1)(e.2) of the Act.

[16] In relation to its first recommendation, the Commission noted that the TPS has two policies that address the promotion of officers who are the subject of an outstanding complaint (Policy 14-10 and 14-11), but no written policy for the appointment of command officers, that is, the positions of Chief and Deputy Chief of Police. As a result, it recommended the following:

1. The Toronto Police Services Board develop a policy that mirrors Policy 14-10 and 14-11 that will apply to the positions of Deputy Chief of Police and Chief of Police.

[17] In relation to its second recommendation, the Commission noted that it appeared that the human rights complaint filed by Inspector McLeod against Staff Sergeant Wretham and Inspector Pye remained outstanding. Investigations were neither conducted nor concluded. As a result, it recommended the following:

2. Chief of Police cause the human rights complaints filed by Inspector David McLeod against Staff Sergeant Ron Wretham and Inspector Wayne Pye to be investigated fully and reported on in accordance with TPS policy. These investigations should be conducted by an outside police service appointed by the Commission. Both Staff Sergeant Wretham and Inspector Pye shall be given the particulars of the complaint filed against them.

[18] In relation to the third recommendation, the Commission noted that with respect to the gas pump incident, while it appeared that the complaints were not handled in accordance with TPS policy and standard investigative practices, the Commission was of the strong view that Constable Cheung had acted in accordance with the direction of the Officer-in-Charge of 42 Division in effect at that time. As a result, it recommended the following:

3. The Chief of Police cause to be placed on Constable Cheung's personnel file a copy of this document [the Commission's Interim Review], dated September 2007.

[19] In relation to the fourth recommendation, the Commission noted that the Board never formally communicated its decision of September 6, 2005, to Dave Wilson in response to the complaint he filed against Deputy Chief Forde. As A result, it recommended the following:

4. The Toronto Police Services Board formally communicate their decision of September 6, 2005 to Dave Wilson in response to his complaint against Deputy Chief Keith Forde.

[20] On January 22, 2008, the Chief advised the Commission that he had acted on the recommendations addressed to him, and on February 11, 2008, the Board confirmed to the Commission that it had acted on Recommendation 4 and had tabled in draft a policy responsive to recommendation 1.

[21] We were advised that McLeod subsequently withdrew his human rights complaint, and, as a result, it was not investigated.

[22] At the outset of the argument before us, we raised with counsel for the applicant the question whether we had jurisdiction to hear this application. After hearing argument on this issue, we proceeded to hear the application.

DISCUSSION

STANDING

[23] The Commission challenged the standing of the TPA to bring this application. In order to consider this argument, it is important to first understand the nature of the application, particularly the relief sought, and the terms of s. 25 of the Act.

[24] In its Notice of Application, the applicant sought a declaration that the Commission had lost jurisdiction under s. 25 as a result of delay, and an order of mandamus requiring the Commission to conduct a full public inquiry into the allegations raised in the TPA request. In its factum, and in oral argument, the applicant abandoned the request for a declaration, and sought only mandamus. While the precise nature of the order of mandamus sought by the applicant seemed to change from time to time during the argument, in the end it remained an application of mandamus.

[25] I turn next to s. 25. As I have already said, s. 25 permits the Commission to investigate, inquire into and report on the conduct of law enforcement personnel, the administration of a police force, the manner in which police services are provided for a municipality or the police needs of a municipality at the request of the Solicitor General, a municipal council, or a municipal police services board, or of its own motion. Bearing in mind that police associations such as the TPA figure prominently in the TPS, their absence from the list of entities that may request an investigation under s. 25 is conspicuous. Counsel for the Commission aptly labeled the TPA a stranger to s. 25 and a volunteer in making its request. As a result, the Commission had no legal obligation to consider the TPA's request that it exercise its jurisdiction under s. 25. The Commission simply reviewed the TPA request voluntarily in order to decide if it should exercise its jurisdiction under s. 25 of its own motion.

[26] Counsel for the Commission argued that since the applicant does not have standing to request that the Commission exercise its powers under s. 25, by necessary implication it does not have an entitlement to a decision by the Commission to exercise its powers under s. 25, and so the TPA did not have standing to bring an application for mandamus to compel the Commission to exercise those powers.

[27] In ETR Concession Co. v. Ontario (Registrar of Motor Vehicles) (2005), 2005 49963 (ON SCDC), 82 O.R. (3d) 703 (Div. Ct.), the Court reiterated the requirements for mandamus at para. 24, as follows:

[24] 407 ETR seeks mandamus. There are four jurisdictional requirements for mandamus, as described by Laidlaw J.A. in Karavos v. Toronto (City), 1947 326 (ON CA), [1948] 3 D.L.R. 294, [1948] O.W.N. 17 (C.A.), at p. 297 D.L.R., p. 3 (QL):

(1) The applicant must demonstrate "a clear legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced".

(2) The duty must be due and incumbent on the official at the time the relief is sought.

(3) The duty must be purely ministerial in nature -- in other words, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers".

(4) There must be a demand and a refusal to perform the act which the applicant seeks to have ordered.

[28] In this case, where the statute does not even oblige the Commission to consider the TPA's request for an inquiry under s. 25, far less to grant it, there is much to be said for the view that the TPA lacked the standing to bring this application. However, having heard full argument in this matter, we will consider the application on its merits, and leave for another day a final determination of the question of standing.

THE MERITS

[29] The argument of the applicant was far ranging, but as the argument developed, the complaint narrowed. Counsel for the TPA put it this way: the Commission's decision to order the investigation of McLeod's complaint of systemic racism but not Cheung's complaint about the gas pump incident was unreasonable. He said that the remedy that the TPA sought was that Cheung's complaint be investigated by an outside police force. In their oral arguments, the respondent and the intervenors responded to this narrowed complaint.

[30] In reply, the applicant's counsel "clarified" that when he spoke of the Cheung complaint about the gas pump incident, he meant the gas pump incident and its aftermath, which, he said, included the way Cheung's complaint was handled, and included the TPA's broad complaint about differential treatment in the TPS on the basis of rank.

[31] It must be remembered that Cheung's complaint was simply a complaint about McLeod's conduct towards him when he challenged McLeod at the gas pump. It is troubling for counsel for the TPA to limit his complaint to the failure of the Commission to order an investigation of the Cheung complaint, and then to expand the complaint in reply to include a systemic complaint about the treatment of officers by the TPS on the basis to rank. However, the respondent and the intervenors did not ask for an opportunity to make further submissions in response to this modification, and so we will consider the applicant's expanded complaint.

[32] I begin with a discussion of the nature of the exercise carried out by the Commission in this case. It is important to do so because there was some confusion about it in argument, and the correct characterization of the review conducted by the Commission may have some impact on the outcome of this application.

[33] The respondent argued that although lengthy and thorough, the review conducted by the Commission was nothing more than a screening exercise to inform the decision whether or not to exercise the power contained in s. 25, and that at the end of the exercise, the Commission decided not to investigate the matters raised by the TPA.

[34] The applicant advanced more than one view. At times, counsel for the applicant argued that the lengthy review conducted by the Commission was in fact an investigation under s. 25, and that the four recommendations made by the Commission, which he consistently characterized as orders, were part of its report. At other times, however, he argued that the recommendation that McLeod's human rights complaint be investigated by an outside police agency was a decision to conduct an investigation under s. 25.

[35] In my view, the respondent is correct that the review conducted by the Commission was nothing more than a screening exercise. At the end of the screening exercise, the Commission decided not to undertake an investigation. The four recommendations that it made were not an exercise of any jurisdiction the commission had under s. 25. Rather, they were recommendations made pursuant to s. 22(1)(e.2) of the Act, which provides:

22. (1) The Commission's powers and duties include, ...

(e.2) making recommendations with respect to the policies of or services provided by a police force by sending the recommendations, with any supporting documents, to the Solicitor General, the chief of police, the association, if any, and, in the case of a municipal police force, the board; ...

[36] The applicant does not dispute that the Commission performs a screening function in determining whether or not to invoke its formal power to investigate a matter. It argued, however, that the nature and length of the commission's review of the TPA's request in this case is not consistent with a screening process, and amounts to an exercise of its power under s. 25 to conduct an investigation. I cannot accept this characterization of the Commission's review, for two reasons.

[37] First, in its letter to the TPA on December 13, 2007, the Commission stated explicitly that it "declined to exercise its discretion to invoke section 25 of the Police Services Act as requested by the Toronto Police Association." I can think of no reason to refuse to take the Commission at its word.

[38] Second, there is nothing about the care the Commission took in deciding whether or not to exercise its discretion to conduct an investigation under s. 25 that is inconsistent with a screening process. This court recently reaffirmed that regulatory bodies that possess wide powers of investigation have implied power to conduct informal investigations without resorting to their formal powers. (See Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 4762 (Div. Ct.)) Having in mind the propriety of a regulatory body with formal investigative powers exercising an informal investigative power, I can see no reason why the Commission cannot direct its staff to conduct interviews and ask for and review documents on an informal basis as part of its screening process when deciding whether or not to invoke its formal powers under s. 25.

[39] The applicant further argued, as I have already noted, that the making of the recommendation that McLeod's human rights complaint be investigated by an outside police agency was either part of the Commission's report under s. 25, thus demonstrating that the Commission did exercise its power under s. 25, or was a decision to conduct an investigation under s. 25. I disagree with both of these suggestions.

[40] While undoubtedly the making of recommendations could form part of a report under s. 25, the fact that the Commission has other statutory authority to make recommendations defeats this argument in the face of the Commission's own characterization of what it did, that is, decline to exercise its powers under s. 25 but make recommendations. Similarly, assuming that a recommendation that a complaint be investigated by another police force could amount to a decision to exercise the powers in s. 25, a proposition which I strongly doubt, once again the fact that the Commission has other statutory authority to make recommendations defeats this argument in the face of the Commission's own characterization of what it did.

[41] The simple fact is that the respondent is correct. As I have already stated, the four recommendations made by the Commission were made pursuant to s. 22(1)(e.2) of the Act. There was nothing that prevented the Commission from making recommendations pursuant to s. 22(1)(e.2) of the Act based on information it gathered while deciding whether or not to invoke s. 25.

[42] As a result, the issue raised by the applicant comes down to this question: was it unreasonable for the Commission to decide to recommend an investigation of McLeod's complaint of systemic racism, but not Cheung's complaint about the gas pump incident (including the way Cheung's complaint was handled, and including the TPA's broad complaint about differential treatment in the TPS on the basis of rank)?

[43] As is apparent, the applicant assumes that the standard of review on this issue is reasonableness. While the respondent maintained that the applicant lacked standing to raise this issue, it did not disagree that if the issue was reached, the standard of review was reasonableness. Neither did the intervenors disagree. We accept that reasonableness is the appropriate standard of review.

[44] In my view, there was nothing unreasonable about the recommendations made and not made by the Commission.

[45] I note first of all that the late-breaking inclusion in this argument of the failure to recommend an investigation into the way Cheung's complaint was handled, and the failure to recommend an investigation into the TPA's broad complaint about differential treatment in the TPS on the basis of rank, deprives the argument as it was initially formulated of its logical symmetry. It is a much neater question to simply ask: how could the Commission reasonably recommend an investigation of McLeod's complaint, and not Cheung's complaint? I will begin with that question.

[46] It seems to me that based on the Commission's view of the matter, the failure to recommend a review of Cheung's complaint while recommending an investigation of McLeod's complaint is logical and reasonable. It is apparent from recommendation 2 that the Commission concluded that McLeod's complaint against Wretham and Pye, which involved allegations of racism, had inexplicably never been investigated. Indeed, it is impossible to conclude otherwise. It was entirely reasonable that the Commission recommended that the investigation that should have been done be done. The choice of an outside police service as the investigating agency was also entirely reasonable in the circumstances.

[47] But when it comes to Cheung's complaint against McLeod, it is apparent from recommendation 3 that the Commission reasonably concluded that the complaint had been investigated, albeit not in a manner consistent with TPS policy, and resolved. It was entirely reasonable for the Commission not to recommend that it be reopened. In addition, any dissatisfaction with the resolution that might still have been harboured by Cheung as a result of the handling of his complaint was ameliorated by the clear statement by the Commission that he had done nothing wrong, and that its report should be placed in his file. While this may not have any impact on the reasonableness of the Commission's decision concerning the Cheung complaint, it certainly underscores that the Commission brought a full understanding of the dynamics at play in this matter to its decision.

[48] That brings me to the argument that the Commission's failure to recommend an investigation into the way Cheung's complaint was handled, and into the TPA's broad complaint about differential treatment in the TPS on the basis of rank, was unreasonable. This argument can be dealt with briefly.

[49] However much the TPA believes that these are matters that warrant investigation, there is nothing unreasonable about the Commission reaching a different conclusion. The legislation places a broad discretion in the hands of the Commission to decide what matters warrant investigation under s. 25. The discretion to determine what recommendations should be made under s. 22(1)(e.2) is, if anything, even broader. The evidence presented to us that might justify the recommendations sought by the TPA cannot constrain the Commission's discretion. The decision clearly falls within the range of acceptable possible outcomes.

[50] The applicant argued for a more restricted view of the Commission's discretion based on the decision of the Ontario Court of Appeal in Canadian Civil Liberties Association et. al. v. Ontario Civilian Commission on Police Services (2002), 2002 45090 (ON CA), 61 O.R. (3d) 649. But that decision is of no assistance here. The case involved an appeal to the Commission from the decision of a police chief not to hold a hearing into a complaint made by a civilian about the alleged misconduct of a police officer. Pursuant to s. 64(7) of the Act, the chief is obliged to hold a hearing if he or she is of the opinion that the conduct in question may constitute misconduct. In such circumstances, there is no discretion to decline to hold a hearing. It is apparent that the jurisdiction of the Commission on an appeal from the decision of a chief to decline to hold a hearing into a civilian complaint is fundamentally different from its jurisdiction on a request for an investigation or inquiry under s. 25, and its jurisdiction to make recommendations under s. 22(1)(e.2).

DISPOSITION

[51] The application is dismissed. Mandamus is not available as a remedy on the facts of this case. Costs are awarded to the respondent in the amount of $10,000. No costs are sought by the intervenors.

DAMBROT J.

ASTON J.

KARAKATSANIS J.

RELEASED: January 13, 2010

COURT FILE NO.: 210/07

DATE: 20090113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

aston, dambrot and karakatsanis JJ.

B E T W E E N:

TORONTO POLICE ASSOCIATION

Applicant

• and -

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Respondent

• and -

TORONTO POLICE SERVICES BOARD and CHIEF OF POLICE OF THE TORONTO POLICE SERVICE

Intervenors

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: January 13, 2010