Ackerman v. Ontario Provincial Police, 2010 ONSC 910
CITATION: Ackerman v. Ontario Provincial Police, 2010 ONSC 910
DIVISIONAL COURT FILE NO.: 597/08
DATE: 20100211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCOMBS, LEDERMAN and MOLLOY JJ.
BETWEEN:
PETER ACKERMAN Applicant
– and –
ONTARIO PROVINCIAL POLICE SERVICE and COMMISSIONER JULIAN FANTINO Respondent
Leo A. Kinahan, for the Applicant
Lorenzo D. Policelli, for the Respondent
HEARD: January 29, 2010
REASONS FOR DECISION
MOLLOY J.
A. INTRODUCTION
[1] The applicant is a police officer with the Ontario Provincial Police Services (“OPP”). On April 23, 2007, he was suspended from duty pending an investigation into allegations of misconduct. After an initial investigation determined that no criminal charges would be laid, there was a further investigation by the Professional Services Bureau (“PSB”) of the OPP with respect to possible disciplinary proceedings. That investigation culminated in a report dated January 18, 2008. Because more than six months had passed from the date the facts on which the complaint had been based had come to the attention of the Chief of Police, the PSB sought the approval of Commissioner Julian Fantino for the service of a notice of hearing, pursuant to then s. 69(18) of the Police Services Act, R.S.O. 1990, c. P-15 (“PSA” or “Act”).
[2] On October 9, 2008, Commissioner Fantino extended the time for service. He delivered written reasons stating that in his opinion the delay in serving the notice of hearing was reasonable. As a result of Commissioner Fantino’s decision, on October 12, 2008, P.C. Ackerman was served with a formal Notice of Hearing on a charge of discreditable conduct and directed to attend for the hearing on December 10, 2008.
[3] P.C. Ackerman now applies to this Court for judicial review of Commissioner Fantino’s decision. His notice of application was issued on December 2, 2008. In the interim, the hearing has not proceeded.
[4] For the reasons set out below, we consider this application to be premature in light of the interlocutory nature of the decision made by the Commissioner. Accordingly, the application is quashed.
B. RELEVANT STATUTORY PROVISIONS
[5] At the relevant time, the procedure for hearings into complaints of misconduct by a police officer was governed by s. 69 (now s. 83) of the PSA. Of particular relevance to this case is s. 69(18) (now s. 83(17)) which provides:
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.
[6] The PSA does not provide for any right of appeal from a decision by the Commissioner under s. 69(18). In the normal course, after service of the notice of hearing and following disclosure there would be a full hearing before either the Chief of Police or the municipal police services board (“board”). There is then a full right of appeal from the board to the Ontario Civilian Police Commission (“the Commission”) pursuant to then s. 70 of the PSA. Finally, there is a further, although more limited, right of appeal from the Commission to the Divisional Court under then s. 71 (now s. 88) of the Act, which provides as follows:
- (1) A party to a hearing held by the Commission under subsection 65 (9) or section 70 may appeal the Commission’s decision to the Divisional Court within 30 days of receiving notice of the Commission’s decision.
(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them. 1997, c. 8, s. 35.
[7] These appeal routes do not apply to the decision of the Commissioner under s. 69(1). If there is jurisdiction in this court to review the Commissioner’s decision, it would be under s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, which states as follows:
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:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
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.
C. ISSUES RAISED BY THE PARTIES
[8] The applicant submits that the Commissioner failed to provide adequate reasons for his decision to permit service of the notice of hearing after the expiry of the six-month period and thereby breached rules of natural justice and procedural fairness. Further, the applicant argues that the Commissioner’s decision was not reasonable and was not consistent with the evidence.
[9] The respondent submits that there was no breach of procedural fairness or natural justice by the Commissioner, that he acted within his jurisdiction, and that his decision was reasonable. The respondent also takes the position that the applicant’s concerns about delay ought to be argued before the hearing adjudicator, rather than by way of judicial review.
[10] The prematurity issue raises a question as to whether this Court ought to exercise its discretion to even consider the grounds for judicial review asserted. It is therefore appropriate to consider it first.
D. PREMATURITY: GENERAL PRINCIPLES
[11] Judicial review is a discretionary remedy. As a general principle, this court will decline to exercise its discretion to judicially review a tribunal decision that is interlocutory or interim in nature and does not determine the rights of the parties. This is a principle rooted in public policy, respect for Parliamentary intention, and deference to administrative tribunals. See Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 (Div.Ct.); Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div.Ct.); Latif v. Ontario (Human Rights Commission) (1992), 4 Admin. L.R. (2d) 227 (Gen. Div.); Gore v. College of Physicians and Surgeons (2008), 2008 48643 (ON SCDC), 92 O.R. (3d) 195, aff'd 2009 ONCA 546, at paras. 66-68; Howe v. Institute of Chartered Accountants (Ontario) (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 (C.A.), leave to appeal to S.C.C. refused, (1995), 21 O.R. (3d) xvi (n); McIntosh v. College of Physicians and Surgeons (Ontario) (1998), 1998 19444 (ON SCDC), 169 D.L.R. (4th) 524 (Ont. Div. Ct.).
[12] The Supreme Court of Canada recently took the opportunity, in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, to re-examine the approach taken on judicial review of tribunals and to simplify the legal analysis involved. At the same time the court, reiterated its long-standing policy of deference to administrative tribunals. Bastarache and LeBel JJ., writing for the majority, stated as follows at para 27:
As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.
and further at para. 48:
. . . Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, 1993 164 (S.C.C.), [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J., dissenting).
[13] The reluctance of courts to intervene in ongoing administrative proceedings is long-standing. In Roosma the Divisional Court was asked to consider an appeal from interim rulings made by a Board of Inquiry under the Human Rights Code, R.S.O. 1990, c. H-19 (“Code”). In that case, a number of employees of Ford Motors filed human rights complaints against their employer and their union based on their employer’s requirement that they work on their religious Sabbath and their union’s failure to support their position. The Human Rights Commission appointed a Board of Inquiry and the Board Chair made a number of rulings at the outset of the hearing, including rulings that there was a duty to accommodate implied within the language of the Code and that the complaints disclosed a cause of action against the union. The effect of the rulings was that the hearing would then proceed on its merits. The employer and the union appealed to the Divisional Court pursuant to a section of the Code that provided a right of appeal from a “decision or order” of a Board of Inquiry. The central issue before the Divisional Court was whether the appeal provision extended to interim or interlocutory orders. The court found it did not.
[14] In coming to that conclusion, the Divisional Court was guided by the general principle that proceedings before administrative tribunals are meant to be expeditious and that interpreting the appeal provision as applying to anything but final decisions would thwart that legislative intent. Reid J. (writing the unanimous opinion of the court) stated as follows, at para. 26, under the heading, “Delay is at odds with the rationale for the appointment of tribunals”:
The traditional rationale for the establishment of administrative tribunal is cheapness, expedition, and expertise. The objectives are freedom from what is popularly seen as the undue delay and cost of court proceedings and the inexpertise of judges trained in the law but not in matters of social improvement. Why then, would the legislature build into the procedure for an inquiry under the Ontario Human Rights Code, 1981, a stumbling block that could bring everything to a halt at any party's whim? If any party can appeal any ruling at any time, and freeze the inquiry until all appeals had been disposed of, the prospect of speedy and inexpensive resolution of human rights complaints becomes an illusion, if not a nightmare. I do not suggest that the appeals before us were launched simply for the purpose of achieving delay, but that has been their effect. The proposal of the union on this motion could have the effect of stultifying the Code. If one appeal failed a second could be launched when the, possibly forced, opportunity arose, and another thereafter, and so on. The result would be stalemate.
[15] Although the court in Roosma was dealing with an appeal rather than a judicial review, Reid J. noted that even if the parties had sought judicial review, the court would not have intervened in the absence of exceptional circumstances such as a fatal jurisdictional error. He stated at para. 31:
Notwithstanding their reluctance to intervene in the proceedings of tribunals prior to their completion courts will do so in order to avoid wasting time and money. Thus, if it appears at the outset that a proceeding in a tribunal will be fatally flawed, a means exists by way of judicial review to challenge it. That is so even where an appeal is provided.
[16] This same type of reasoning has been applied in cases involving judicial review of interlocutory decisions of tribunals. In Ontario College of Art, respondents in a human rights complaint sought judicial review of a decision by the Ontario Human Rights Commission to appoint a Board of Inquiry to conduct a hearing into a complaint by an employee of sexual and racial harassment. The respondents alleged that the Commission’s decision had been based on an investigation report by an investigator who was biased against the respondents throughout. There was also an issue of delay: the complaint was filed in 1987 and the Commission decided to proceed to a hearing in 1992. The Divisional Court quashed the judicial review application as premature.
[17] Callaghan C.J.O.C., writing for the court, noted that the issues of bias and delay could be dealt with by the Board of Inquiry and, depending on the outcome at the tribunal, might cease to become relevant issues, or could be the subject of an appeal at the end of the proceedings when there would be the benefit of a full evidentiary record. He held that, as a matter of policy, interlocutory decisions should be made in the first instance by tribunals without judicial intervention. Callaghan C.J.O.C. noted that this policy accords with “a long line of authority which has indicated the need to avoid a piecemeal approach to judicial review of administrative action.” He held, at paras. 4 and 6, as follows:
This court has a discretion to exercise in matters of this nature. It can refuse to hear the merits of such an application if it considers it appropriate to do so. Where the application is brought prematurely, as alleged by the Attorney General in these proceedings, it has been the approach of the court to quash the application, absent the showing of exceptional or extraordinary circumstances demonstrating that the application must be heard: see Latif v. Ontario (Hospital Resources Commission) (an unreported decision of this court of March 11, 1992; leave to appeal was denied on June 8, 1992 by the Ontario Court of Appeal) and Hancock v. Ontario (Human Rights Commission) (an unreported decision of this court of November 10, 1992).
For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion. In particular, at that time, these applicants will have a full right of appeal pursuant to s. 42 of the Human Rights Code, R.S.O. 1990, c. H.19.
[18] The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime. Such applications will result in increased costs for all concerned as well as considerable delay in what is meant to be a cost-effective and expeditious process.
[19] That is not to say that the court will never consider a judicial review application while administrative proceedings are still ongoing. However, the court will only do so rarely, when exceptional circumstances are demonstrated. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed (Roosma; Deemar v. College of Veterinarians of Ontario (2009), 2008 ONCA 600, 92 O.R. (3d) 97 (C.A.)); where the decision, although interlocutory in most respects, determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v. Kahlon (2005), 2005 FC 1000, 35 Admin L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses’ privacy rights); or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice (McIntosh; People First of Ontario v. Regional Coroner of Niagara (1992), 1992 7462 (ON CA), 6 O.R. (3d) 289 (C.A.)). Even in those extreme situations, the remedy is discretionary and will be exercised sparingly.
E. APPLICATION OF THE LAW TO THIS CASE
[20] I turn then to the application of these general principles to the case before this court. The decision of Commissioner Fantino is clearly interlocutory. All that he has decided is that in his opinion it was reasonable to delay service of the notice of hearing. That means that a hearing may now proceed into the allegations of misconduct against P.C. Ackerman. There has been no determination of P.C. Ackerman’s rights.
[21] It is well-established by previous decisions of this court that the presumptive six-month period for service of a Notice of Hearing under the Police Act is not a limitation period: Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div.Ct.); Forestall v. Toronto Police Services Board, 2007 31785 (ON SCDC), [2007] O.J. No. 3059 (Div.Ct.). Rather, the Commissioner was exercising a procedural, administrative function in extending the time for service of the notice.
[22] The applicant will not be deprived of any substantive rights if required to proceed before the board, rather than having a full judicial review hearing on its merits at this stage. If he has suffered prejudice as a result of any delay in proceeding with the complaint, it is open to him to argue before the board that the proceedings are an abuse of process. I note that at this point there is no evidence of any such prejudice either in the record before this court or in the submissions made by the applicant to Commissioner Fantino. This is precisely the kind of situation that would benefit from an evidentiary record, which would only be obtainable if the issue is dealt with at the board level first.
[23] I agree entirely with the reasoning of the Divisional Court in Forestall, which dealt with this issue as follows at para. 76:
The decision of the Board under s. 69(18) is not directed at, nor does it finally dispose of the issue of unreasonable and prejudicial delay. Whether there has been unreasonable delay that has prejudiced the officers or that constitutes an abuse of process is a matter that should be determined in a hearing on the merits before the officer hearing the disciplinary charges and on the basis of a proper evidentiary record. In our view, it is premature to consider this issue at this time (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.) at p. 800; Coombs, supra at para. 12).
[24] The applicant in this case seeks to cast the issue before this court as one going to jurisdiction. I disagree. In Dunsmuir, the Supreme Court of Canada cautioned against characterizing issues as jurisdictional in nature unless they truly relate to the “narrow sense of whether or not the tribunal had the authority to make the inquiry”(at para. 59). There is no question that Commissioner Fantino had the authority under the legislation to make the inquiry he did as to whether it was reasonable to extend the period for service of the notice of hearing.
[25] The essence of the applicant’s complaint with the Commissioner’s decision is not jurisdictional. Rather, he asserts that the Commissioner failed to comply with principles of procedural fairness and natural justice, or, alternatively, that his decision was not reasonable.
[26] There may well be situations in which an interlocutory ruling is so tainted by procedural unfairness and breaches of principles of natural justice that this court would appropriately intervene. I do not wish to rule that out. However, this case clearly does not fall into that category. The Divisional Court in Forestall did a thorough analysis of the content of the duty of fairness under s. 69(18) of the PSA and concluded that this was an administrative and procedural function requiring only “minimal rights of procedural fairness” including notice, appropriate disclosure and an opportunity to respond in writing. Those requirements were clearly met in this case. The adequacy of the Commissioner’s reasons must be assessed in the same context. The kind of reasons that would be expected after a full hearing on the merits of a complaint are certainly not required. Given the issues involved here, the Commissioner’s brief reasons were more than adequate to meet the standard.
[27] The applicant relies upon Forestall as authority for the proposition that judicial review is an appropriate process to review the merits of the Commissioner’s decision to extend the time for service of the notice. I recognize that the court in Forestall did embark on a detailed analysis as to both procedural fairness issues and whether the decision to extend the time was reasonable on its merits. However, the court in Forestall did not consider issues of prematurity apart from the limited reference to the impact of delay on the applicant. It would appear from the reasons for judgment that prematurity was not raised as an issue. Also, the court may have sought to clarify the content of the rights involved in light of recent jurisprudence. Further, the situation in Forestall is distinguishable on its facts. In that case, the initial investigation against the officers involved began in 1999 and the request to extend the time for service was made in July 2006 – seven years later. In this case, P.C. Ackerman was suspended in April 2007 and the request to extend the time for service was made in January 2008 – nine months later.
[28] In any event, judicial review is a discretionary remedy. The fact that one panel of this court elected to deal with the merits of a judicial review application under this provision of the PSA before dismissing that application, does not constitute a precedent preventing other panels from refusing to do so on the basis of prematurity.
[29] There are no exceptional circumstances to take this case outside the normal rule that administrative proceedings ought not to be fragmented by bringing judicial review applications challenging interlocutory orders. Indeed, what has happened in this case is an illustration of the evil the normal rule seeks to avoid. A total of nine months had elapsed from the time the police chief could have known about the complaint against this police officer and the date upon which the investigation was complete and the Commissioner was asked to make a decision on whether to extend the time for service of the notice of hearing. Counsel for the officer at first made allegations of bias against the Commissioner, which took a few months to resolve, but has since resiled from that position. The Commissioner’s decision to extend the time for notice was made on October 9, 2008, and the notice was served on October 12, 2008. The hearing was to have commenced on December 10, 2008. It did not proceed because this judicial review application was commenced on December 2, 2008. But for this application, the hearing would likely have been concluded by now. I am not suggesting that this application was brought for purposes of delay, but delay has nevertheless been the result. This is not in the public interest and is exactly the reason for the long line of cases holding that such applications are premature and should not be entertained by the court.
[30] In Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561 the Supreme Court of Canada dealt with a case in which a university student had been expelled. The student appealed to the university council, which decided against him after hearing only from the university and not giving him an opportunity to be heard. He had a further right of appeal to the University Senate, but instead commenced judicial review proceedings in the court seeking certiorari. The Supreme Court of Canada upheld that the Saskatchewan Court of Appeal’s decision that certiorari should be denied, stating at 592 (in words quite apt in their application to this case):
The courts should not use their discretion to promote delay and expenditure unless there is no other way to protect a right. I believe the correct view was expressed by O'Halloran J. in The King ex rel. Lee v. Workmen's Compensation Board, 1942 241 (BC CA), [1942], 2 D.L.R. 665 at pp. 677-678 dealing with mandamus but equally applicable to certiorari:
Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy ... If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice ... (Underlining in Harelkin.)
[31] In this case, the applicant is not denied a remedy if this application is quashed as premature. He can raise any prejudice he has suffered as a result of the delay before the board at his hearing. He has a full right of appeal from that decision and a further limited right of appeal to this court thereafter. Exercising our discretion by way of certiorari in this type of situation does not promote a “speedy and inexpensive as well as efficacious administration of justice.” On the contrary, it “promotes delay and expenditure,” which is to be avoided.
F. CONCLUSION
[32] This application is quashed as premature. The parties agreed that there should be no order as to costs, regardless of the outcome.
MOLLOY J.
McCOMBS J.
LEDERMAN J.
Released:
CITATION: Ackerman v. Ontario Provincial Police, 2010 ONSC 910
DIVISIONAL COURT FILE NO.: 597/08
DATE: 20100211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McCOMBS, LEDERMAN and MOLLOY JJ.
BETWEEN:
PETER ACKERMAN Applicant
– and –
ONTARIO PROVINCIAL POLICE SERVICE and COMMISSIONER JULIAN FANTINO Respondent
REASONS FOR JUDGMENT
MOLLOY J.
Released: