Dolan v. Ontario (Civilian Commission on Police Services), 2011 ONSC 1376

CITATION: Dolan v. Ontario (Civilian Commission on Police Services), 2011 ONSC 1376

DIVISIONAL COURT FILE NO.: 237/10

DATE: 2011/03/10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

STEPHEN PATRICK DOLAN

Applicant

– and –

ONTARIO CIVILIAN COMISSION ON POLICE SERVICES and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES and THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD

Respondents

COUNSEL:

Kevin D. Toyne, J.-C. Rioux, for the Applicant

Sara Blake, for the Respondent, Ontario Civilian Commission of Police Services

Jinan A. Kubursi, for the Respondent, Minister of Community Safety and Correctional Services

Craig Lawrence, for the Regional Municipality of Peel Police Services Board

HEARD: January 18, 2011

REASONS FOR DECISION

Herman J.

[1] The Ontario Civilian Commission on Police Services (“Commission”) and the Minister of Community Safety and Correctional Services (“Minister”) seek a dismissal of the application against them. In the alternative, the Commission and the Minister seek a severance of the application for judicial review against them from the application for judicial review against the Peel Police Services Board (the “Board”).

[2] The applicant has brought a cross-motion, seeking an order compelling the Commission and the Minister to deliver their records of proceeding.

The parties’ positions

[3] The application for judicial review against the Commission and the Minister relates to the refusal of the Commission to investigate the applicant’s allegations of police misconduct and the Minister’s refusal to request the Commission to carry out an investigation.

[4] The application for judicial review against the Board, the applicant’s employer, arises from the labour arbitrator’s dismissal of the applicant’s grievances.

[5] The Commission submits that the application against it should be dismissed because: the applicant has no standing to seek judicial review; the applicant does not meet the test for mandamus; the refusal to investigate is not subject to judicial review; and the application should be dismissed for delay.

[6] The Minister makes essentially the same arguments as the Commission with respect to his decision and adds that the application against him is redundant because the applicant seeks an order directly against the Commission.

[7] In the alternative, the Commission and the Minister ask that the judicial review application against them be severed from the application against the Board because the Commission’s refusal to investigate is not related to the application against the Board, which concerns the labour arbitrator’s dismissal of the applicant’s grievances.

[8] The applicant, on the other hand, submits that he has standing; he is entitled to relief by way of mandamus and certiorari; and the decisions of the Commission and the Minister are subject to judicial review. In the alternative, the applicant maintains that it is not “plain and obvious” that he cannot succeed and therefore the application against the Commission and the Minister should not be dismissed at this preliminary stage.

[9] The applicant disagrees that there has been any delay.

[10] The applicant submits further that there should be no severance because the facts underlying his application against the Minister and the Commission are the same as those underlying the application against the Board. He says that he has been attempting to get someone to investigate the allegations – a court, an arbitrator or the Commission – but is told each time that he should be in another forum.

[11] Finally, the applicant seeks the records of the Commission’s and Minister’s proceedings to enable him to properly pursue his application.

[12] The Board did not take any position.

Background

[13] The applicant is a police inspector employed by the Peel Regional Police Service.

The allegations

[14] The applicant claims that from November 2002 to 2007 he was targeted for harassment by a group of senior officers in the Peel Regional Police Service. He says that members of this group attempted to interfere with witnesses in a criminal trial in which he was a defendant. He was ultimately acquitted. He also says that members of the group prevented the proper investigation of allegations of a domestic assault against one of the members of the group. When he refused to remain silent about the incident, charges of breach of confidence were brought against him under the Police Services Act, R.S.O. 1990, c. P.15. Those charges were ultimately withdrawn.

Civil actions and grievances

[15] The applicant commenced a civil action in 2007 in which he advanced allegations of serious misconduct against the Board and the Chief, Acting Deputy Chief and Acting Staff Superintendent of the Peel Regional Police Service. The applicant sought damages for breach of public duty or misfeasance in public office, malicious prosecution, conspiracy and intentional infliction of mental anguish.

[16] The Board took the position that a civil action was not the proper route. Rather, the matter should be addressed by way of a grievance under the collective agreement.

[17] The applicant abandoned the civil action in favour of the grievance route. In January 2008, the applicant filed grievances under the collective agreement alleging abuse of management authority.

[18] In February 2008, the Chief of Police took the position that the applicant’s documents did not constitute a proper grievance and refused to consider them.

[19] The applicant sought the support of the Senior Officers Association (“SOA”) to pursue the grievances. There are two associations representing Peel police officers: the Peel Regional Police Association (“PRPA”) and the SOA. The applicant is represented by the SOA.

[20] In June 2008, the Board took the position that the applicant did not have the capacity or standing to advance the grievances to arbitration.

[21] In February 2009, the applicant requested the Minister to appoint a conciliator under s. 123 of the Police Services Act. The Board objected to the appointment.

[22] In May 2009, the Minister appointed a conciliator. The conciliation was not successful.

[23] In June 2009, the applicant requested the appointment of an arbitrator under s. 124 of the Act. The Minister appointed Arbitrator Fisher on October 8, 2009.

[24] In October 2009, the SOA advised the applicant that it would not support him or pursue the grievances on his behalf.

[25] The arbitration hearing convened on November 24, 2009. The Board raised several preliminary objections to the hearing proceeding.

[26] On February 3, 2010, the Arbitrator ruled that he could not arbitrate the issues without the SOA having carriage of the matters. He therefore dismissed the grievances.

[27] The applicant commenced an action against the SOA claiming damages for breaches of the duty of fair representation. That action is pending.

Requests for the Commission to investigate

[28] In November 2007, the PRPA wrote to the Commission asking it to initiate an independent investigation of the allegations under s. 25 of the Police Services Act.

[29] The Commission responded to the PRPA in January 2008. It advised the PRPA that the request to conduct an investigation had been tabled and discussed at the Commission’s meeting on January 14, 2008. The Commission decided “not to take any action at this time” but it would monitor the outcome of the litigation.

[30] By letter dated February 22, 2008, the PRPA made a second request to the Commission that it conduct an investigation. The request was discussed at the April meeting of the Commission. The Commission advised the PRPA that it would continue to monitor the matter. If there was anything flowing from the grievances that caused the Commission concern, it would deal with it at that time.

[31] The applicant sent the Commission two letters in May 2008 requesting an investigation. The Commission advised the applicant, by letter dated June 24, 2008, that his letters had been tabled and discussed at the Commission meeting. The Commission’s letter noted that the applicant had elected to pursue his concerns by way of a grievance before an arbitrator.

[32] Counsel for the applicant wrote to the Commission in December 2008 again requesting an independent investigation. The Commission responded in January 2009, setting out its view that nothing material had changed since the last time it considered the applicant’s request.

[33] Counsel for the applicant wrote the Minister in June 2009 requesting the Minister to request the Commission to investigate. The Minister responded in September 2009. The Minister refused to make a request to the Commission. He noted that the Commission had considered the matter twice and the information the applicant provided to the Minister’s office was the same as that provided to the Commission.

Application for Judicial Review

[34] The applicant initiated the application for judicial review on May 19, 2010. It challenges the Commission’s refusal to investigate; the Minister’s refusal to request the Commission to investigate; and the Arbitrator’s dismissal of his grievances.

[35] This motion is concerned only with the portion of the application brought against the Commission and the Minister. The primary relief the applicant seeks in that portion of his application is an order compelling the Commission to commence an investigation and to provide him with a copy of the investigation report.

Test for dismissal of an application

[36] A single judge of the Divisional Court may quash or dismiss an application for judicial review (Simanek v. Health Disciplines Board (1994), 76 O.A.C. 300 (Div. Ct.) at para. 39).

[37] The respondents submit that the action should be dismissed on the basis of: Rule 21.01(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits the court to strike out a pleading on the grounds that it discloses no reasonable cause of action; and Rule 25.11, which provides that a court may strike out all or part of a pleading on the basis that it is scandalous, frivolous or vexatious or an abuse of process.

[38] A motion may be brought under these two Rules with respect to an application, notwithstanding that the language of the Rules relates to actions (Fraser v. Canada (Attorney General), [2005] O.T.C. 1127 (S.C.) at para. 47).

[39] The court should not strike a pleading unless it is “plain and obvious” that it cannot succeed (Hunt v. Carey Canada Inc. (1990), 1990 90 (SCC), 74 D.L.R. (4th) 321 at 335 (S.C.C.); Miguna v. Ontario (Attorney General) 2008 ONCA 799 at para. 34). Dismissing an action on the basis that it is frivolous or vexatious or an abuse of process should only be done in the clearest of cases, where it is obvious that it cannot succeed (Sussman v. Ottawa Sun (The), [1997] O.J. No. 181 (Ont. Ct. J. (Gen. Div.)) at para 21).

Statutory Framework

[40] The applicant sought an investigation under s. 25 of the Police Services Act.

[41] Subsection 25 (1) provides as follows:

The Commission may, on its own motion or at the request of the Solicitor General, the Independent Police Review Director, a municipal council or a board, investigate, inquire into and report on,

(a) the conduct or the performance of duties of a police officer, a municipal chief of police, an auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board;

(a.1) the performance of duties of an appointing official under the Interprovincial Policing Act, 2009;

(b) the administration of a municipal police force;

(c) the manner in which police services are provided for a municipality;

(d) the police needs of a municipality. [Emphasis added.]

[42] The Act does not specify any criteria or factors for the Commission to consider in making its decision under s. 25. Dambrot J. in Toronto Police Association v. Ontario (Civilian Commission on Police Services) (2010), 2010 ONSC 246, 257 O.A.C. 376 (Div. Ct.) referred at para. 49 to the “broad discretion in the hands of the Commission to decide what matters warrant investigation under s. 25”.

[43] Section 22 of the Act sets out the Commission’s powers and duties.

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

(a) if the Solicitor General advises the Commission that a board or municipal police force is not complying with prescribed standards of police services,

(i) directing the board or police force to comply, and

(ii) if the Commission considers it appropriate, taking measures in accordance with subsection 23 (1);

(b) Repealed: 1995, c. 4, s. 4(3).

(c) conducting investigations with respect to municipal police matters under section 25;

(d) conducting inquiries into matters relating to crime and law enforcement under section 26;

(e) conducting inquiries, on its own motion, in respect of a complaint or complaints made about the policies of or services provided by a police force or about the conduct of a police officer and the disposition of such complaint or complaints by a chief of police or board;

(e.1) Repealed: 2007, c.5, s. 6(1).

(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;

(f) hearing and disposing of appeals by members of police forces and complainants in accordance with Part V.

[44] Inquiries under s. 26 of the Act are initiated at the direction of the Lieutenant Governor in Council. Complaints concerning the conduct of a police officer may be initiated by a member of the public under Part V of the Act.

[45] Part VIII of the Act provides a comprehensive scheme for labour relations, including conciliation and arbitration processes for grievances.

Delay

[46] The Commission submits that the application should be dismissed for delay. The last letter it sent to the applicant declining to investigate the matter was dated January 16, 2009. However, the applicant did not commence this application until May 21, 2010, that is, sixteen months later.

[47] The applicant explains the delay on the basis that he was pursuing his labour grievances. The Arbitrator issued his ruling in February 2010. The applicant initiated the judicial review application three months later.

[48] The court may, in its discretion, decline to grant the relief where there has been an inordinate delay in commencing the judicial review proceeding (Jeremiah v. Ontario (Human Rights Commission) (2008), 83 Admin. L.R. (4th) 126 (Div. Ct.), at para. 44). The Divisional Court has held that a delay of six or more months in the commencement of an application could be serious enough to warrant the dismissal of the application (O.P.S.E.U. v. Ontario (Ministry of Labour), [2001] O.L.R.B. Rep. 549 (Div. Ct.)).

[49] The decision to dismiss for delay is a discretionary one and depends on the circumstances of the particular case. In this case, the applicant has provided an explanation for the delay: he was going through the grievance process. The time between the Arbitrator’s ruling and the applicant’s initiation of the application for judicial review was only three months. The Commission was aware that the applicant was pursuing the grievance route. It has not shown any prejudice resulting from the delay.

[50] Given these circumstances, I cannot conclude that the delay was inordinate. I decline to dismiss the application on the basis of delay.

Standing

[51] The Commission and the Minister assert that the applicant has no standing because he is not one of the people listed in s. 25 who may request an investigation. Rather, the section provides that the request may be made by: the Minister, the Independent Police Review Director, a municipal council or a municipal police services board.

[52] The applicant submits that he has standing given the absence of an alternative statutory mechanism, the lack of other alternatives to pursue his concerns and the public interest in the investigation of allegations of police misconduct.

[53] This issue was discussed by the Divisional Court in Toronto Police Association v. Ontario (Civilian Commission on Police Services). In that case, the Toronto Police Association had requested the Commission to conduct an inquiry under s. 25 of the Act. The Commission declined to exercise its powers under s. 25 and the Association brought an application for judicial review.

[54] As in the case at hand, the Commission argued in the Toronto Police Association case that since the applicant did not have standing to request the Commission to exercise its powers under s. 25, it did not have standing to bring an application for mandamus to compel the Commission to exercise those powers. The Association is not one of the entities specifically authorized in s. 25 to make a request.

[55] In discussing the standing issue, the Court noted that the Commission had no legal obligation to consider the request to exercise its jurisdiction under s. 25. Rather, it reviewed the Association’s request voluntarily in order to decide if it should exercise its jurisdiction under s. 25 on its own motion.

[56] The Court concluded its consideration of the issue of standing as follows at para. 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 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.

[57] The applicant points out that the Divisional Court declined to decide the issue of standing and its comments are therefore obiter. Furthermore, he submits that there are factual matters that distinguish the Toronto Police Association case from the case at bar. In particular, the Commission considered his request on its merits at a meeting and agreed to monitor the outcome.

[58] A similar issue arose in the case Democracy Watch v. Canada (Conflict of Interest & Ethics Commissioner), 2009 FCA 15 (F.C.A.), leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 139. Democracy Watch applied for judicial review of the decision of the Conflict of Interest and Ethics Commissioner not to investigate certain decisions of the Prime Minister and the Minister of Justice and Attorney General. The legislative scheme provided that the Commissioner was required to examine alleged contraventions if requested by a member of the Senate or the House of Commissions; and the Commissioner “may” conduct an examination on his or her own initiative if he or she has reason to believe the Act had been contravened.

[59] Richard C.J., in oral reasons delivered on behalf of the Court stated at paras. 10-11:

When administrative action does not affect an applicant’s rights or carry legal consequences it is not amenable to judicial review [citations omitted].

The applicant has no statutory right to have its complaint investigated by the Commissioner and the Commissioner has no statutory duty to act on it. There is no provision in the Act that allows a member of the public to request that the Commissioner begin an examination.

[60] As in the case at bar, the Commissioner in Democracy Watch had considered the applicant’s request and responded to the applicant in writing. However, the court stated, at para. 12, that the Commissioner’s letter did not have any binding effect.

[61] The applicant submits that Democracy Watch is distinguishable because there is no alternative statutory mechanism available to the applicant in contrast to the situation in Democracy Watch. However, the statutory mechanism that was available in the Democracy Watch case was that the Commissioner could consider information from the public brought to his or her attention by a member of the Senate or the House. There was no alternative mechanism in the event the Commissioner decided not to conduct an examination.

[62] The test for public interest standing to challenge government laws and actions is three-fold:

(i) Is there a serious issue raised?

(ii) Does the proposed applicant have a genuine interest in the validity of the legislation [or action]?

(iii) Is there another reasonable and effective manner in which the issue may be brought before the court? (Canadian Council of Churches v. Canada (Minister of Immigration), 1992 116 (SCC), [1992] 1 S.C.R. 236 (S.C.C.) at para 37)

[63] The respondents assert that the applicant is not directly affected by the decision because an investigation under s. 25 is not designed to remedy an injury to an individual person. This is distinguishable from proceedings under Part V whereby a member of the public may complain about the conduct of a police officer. The applicant argues, however, that he is not in the same position as a member of the public because he has a particular interest in the investigation of the allegations.

[64] In Distribution Canada Inc. v. Minister of National Revenue, 1993 2923 (FCA), [1993] 2 F.C. 26 (F.C.A.), an organization applied for an order in the nature of mandamus to compel the Minister to comply with the statutory duty to collect duty on certain goods. The application was denied on the basis that the organization lacked standing because the duty was one that was owed to the Crown and not the public and the Minister had a discretion as to the manner of enforcement of the law. The organization appealed. In dismissing the appeal, the court did not decide the issue of standing. However, Desjardins J.A. referred to the enlargement of public interest standing in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 206 at para. 23 which does not exclude the possibility of extending standing to a proceeding in mandamus “where there is a public interest to be expressed and there is no other reasonable way for it to be brought to the court”.

[65] The respondents contend that there is a reasonable way for the matter to be brought forward, that is, through labour relations proceedings. The applicant is raising matters arising from his employment and, in their submission, those matters should be dealt with in the employment/labour relations context. The fact that the Arbitrator declined to proceed was not because of the subject matter of the grievance but because the SOA would not support the applicant. The applicant has initiated a proceeding against the SOA, as well as judicial review of the Arbitrator’s decision.

[66] The applicant argues that he has no other forum because the Arbitrator declined to hear his grievances.

[67] In Renaud v. LaSalle (Town) Police Assn. (2006), 2006 23904 (ON CA), 216 O.A.C. 1 (C.A.), the appellant appealed from a decision dismissing his action. The Superior Court had determined that it did not have jurisdiction to try the action because it arose out of his employment relationship and was governed by the terms of the collective agreement between the Police Board and the Police Association. The appellant had made numerous allegations against the Association, the Police Board and various police officers. All the allegations were workplace related. The Court of Appeal did not accept the appellant’s argument that he had no forum in which to bring his complaint that the Association improperly refused to bring his grievances before an arbitrator. It indicated at para. 7 that the Police Services Act and the collective agreement provided “a complete and comprehensive scheme for police officers relating to their employment relationship”.

[68] As in the Renaud case, the applicant’s association did not support him in his grievance. However, that does not detract from the exclusive jurisdiction model. The applicant’s complaints arise out of his employment relationship with the Board. The applicant has remedies available to him: an action against the SOA alleging breach of the duty of fair representation; and the judicial review application of the Arbitrator’s decision.

[69] There is nothing in the Act to suggest that the Commission had a duty to either consider or grant the applicant’s request. Indeed, the Act suggests the opposite: it specifies the individuals and bodies who may make such a request, and the applicant is not one of them. The issues raised by the applicant are employment-related and fall within the labour relations scheme for dealing with issues arising from the employment of police officers. There is, therefore, another route for the adjudication of his concerns. As a result, it is my opinion that the applicant does not meet the test for public interest standing.

[70] I will, however, go on to consider whether, aside from the standing issue, it is “plain and obvious” that the applicant could not make out a case for mandamus, certiorari or judicial review of a statutory power of decision.

Mandamus

[71] Mandamus is a remedy to obtain the performance of a public duty. In Karavos v. Toronto (City), 1947 326 (ON CA), [1948] 3 D.L.R. 294 (Ont. C.A.) at para. 1, the Ontario Court of Appeal explained mandamus as follows:

It is properly called and recognized as an extraordinary one [remedy], and it is not granted by the Court if an applicant for it has any other adequate remedy. The object and purpose of it is to supply the want of other legal remedies. It is appropriate to overcome the inaction or misconduct of persons charged with the performance of duties of a public nature.

[72] There are four requirements that an applicant has to meet in order to obtain mandamus:

(i) 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”.

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

(iii) 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”.

(iv) There must be a demand and a refusal to perform the act which the applicant seeks to have ordered. (Toronto Police Association v. Ontario Civilian Commission on Police Services at para. 27).

[73] The respondents submit that the applicant cannot meet the first three requirements of the test because he has no legal right to ask the Commission to investigate and the Commission’s decision to investigate is purely discretionary.

[74] The applicant points out that mandamus may be available even in situations where the body has discretionary decision-making power. That issue was considered in Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C. 742 (F.C.A.). In Apotex, the applicant sought mandamus to compel the Minister to issue a Notice of Compliance which would enable the applicant to market a generic drug. It was not in dispute that the Minister owed a duty to Apotex. Rather, the issue was whether the application for mandamus was premature.

[75] The Court in Apotex agreed that mandamus could apply to discretionary decisions and set out the following requirements (at para. 45):

(a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”;

(b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute” “permissive” or “unfettered”;

(c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations;

(d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and

(e) mandamus is only available when the decision-maker’s discretion is “spent”, i.e. the applicant has a vested right to the performance of the duty.

[76] In Trinity Western University v. College of Teachers (British Columbia), 2001 SCC 31, [2001] 1 S.C.R. 772 , the trial judge had granted an order of mandamus and directed the College of Teachers to grant accreditation to a university. The Supreme Court considered whether the order of mandamus was justified. The court referred to the Apotex decision as acknowledging that bodies that have discretionary decision-making power may still be faced with a court order for mandamus in certain circumstances (at para. 41).

[77] Iacobucci and Bastarache JJ., writing for the majority in Trinity Western, concluded at para. 43 that the order of mandamus was justified because the exercise of discretion was fettered by s. 4 of the Act and the only reason for the denial of certification was the consideration of discriminatory practices. Section 4 of the Teaching Profession Act, R.S.B.C. 1996, c. 449, empowered the College to “establish, having regard to the public interest, standards for the education, professional responsibility and competence of its members, persons who hold certificates of qualification and applicants for membership …”.

[78] In the case of Tsiafakis v. Canada (Minister of Manpower & Immigration), 1977 3119 (FCA), [1977] 2 F.C. 216 (F.C.A.), the trial judge granted a writ of mandamus which ordered the Minister to provide the respondent with a sponsorship form. The issue before the court was whether there was a duty on the part of the Minister to provide the form.

[79] LeDain J. stated at para. 15:

In the absence of an express provision imposing such duty, the duty will be implied if the provision of the form by an immigration officer is necessary to the effectuation of a right possessed by the respondent. Whether this is so is to be determined by a consideration of the terms of section 31 of the Regulations and the nature of the prescribed form.

[80] The Court concluded that a person who seeks to sponsor someone for admission to Canada has a right to make an application for admission in the prescribed form and have his or her right to sponsor determined upon the basis of the application.

[81] In my opinion, the circumstances in the case at hand are very different than those in Apotex, Trinity Western and Tsiafakis. Firstly, there is no duty, express or implied, owed by the Commission to the applicant with respect to initiating an investigation under s. 25. This is very different from the person who wants to sponsor a person for immigration to Canada or a school that wants to be certified. In both of those cases, a duty can be inferred from the statutory or regulatory framework.

[82] Secondly, there is nothing in the Police Services Act that reflects a fettering of the Commission’s discretion with respect to its decision to commence an investigation other than a general consideration of the public interest.

[83] In my opinion, it is clear that the remedy of mandamus is not available in these circumstances.

Certiorari

[84] In the alternative, the applicant seeks certiorari. The remedy of certiorari has a broad scope, as set out by Dickson J. in Martineau v. Matsqui Institution, 1979 184 (SCC), [1980] 1 S.C.R. 602 at p. 268:

Certiorari 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.

[85] In the case of Scheerer v. Waldbillig (2006), 2006 6460 (ON SCDC), 208 O.A.C. 29 (Div. Ct.), the applicant brought an application for judicial review to quash and set aside the decision of the respondent Medical Director to decertify her as a paramedic. The Court concluded that certiorari was available in the circumstances because the Medical Director had the responsibility to make the decision with the public’s interest in quality health care in mind; the decision affected the rights, interests and privileges of the applicant; and the Medical Director was under a public duty when he rendered his decision. The court also concluded that the decision to decertify the applicant involved a “statutory power” and was therefore subject to judicial review.

[86] In Scheerer, the decision of the Medical Director directly affected the applicant’s rights and interests. However, in the case at hand, the Commission did not owe any duty to the applicant with respect to the initiation of an investigation. Its decision did not affect any rights or interests of the applicant.

[87] I conclude, therefore, that the remedy of certiorari is not available.

Statutory Power of Decision

[88] The applicant submits that the Commission was exercising a statutory power of decision, which was therefore subject to judicial review.

[89] Judicial review is available in relation to “any decision made in the exercise of any statutory power of decision” (Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 2(2)). An applicant may receive relief for a refusal to exercise a “statutory power” (s. 2(2)).

[90] A “statutory power” is defined in s. 1 as follows:

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party.

[91] A “statutory power of decision” is defined in s. 1 as follows:

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court.

[92] In the case of Jacko v. Ontario (Chief Coroner) (2008), 2008 69579 (ON SCDC), 306 D.L.R. (4th) 126 (Div. Ct.), the respondent sought review of the decision not to order an inquest into the death of his son. The Court considered whether the Chief Coroner was exercising a “statutory power of decision”.

[93] The Divisional Court concluded at para. 18 that, while a family member has the right to request that an inquest be held and the right to request a review of the refusal to hold an inquest, a family member does not have a right to have an inquest held. In deciding whether to hold an inquest, the Chief Coroner was determining whether it would be in the public interest to hold an inquest; he was not determining the rights of the respondent. The court concluded at para. 21 that the Chief Coroner was not exercising a statutory power of decision.

[94] The applicant distinguished the Jacko case on the basis that the scope of s. 25 investigations is much broader than an inquest. An investigation under s. 25 may look into the conduct of a police officer, chief of police or member of a police board; the administration of a municipal police force; the manner in which police services are provided; or the police needs of a municipality. Furthermore, the Coroner lacks the powers granted to the Commission by ss. 25(4), (4.1) and (5). These powers enable the Commission to make orders related to the employment of a police force member or member of a board where it concludes that there has been misconduct or the individual is not capable of performing his or her duties.

[95] These distinctions are not, in my opinion, material. In Jacko, the Court decided that the Chief Coroner was not exercising a statutory power of decision because he was not determining the rights of the family. Similarly, in the case at hand, there is nothing in the Police Services Act that would suggest that the Commission was determining any rights of the applicant in deciding whether to investigate.

[96] Indeed, the Commission’s duty to the applicant with respect to an investigation is even less than that of the Chief Coroner towards the respondent in Jacko. In Jacko, the family member had the right to request an inquest and the right to request a review of the refusal to hold an inquest. In the case at hand, the Act does not provide a right to the applicant to request that an investigation be held. Indeed, the Act goes one step further and specifically provides who may request an investigation, and the applicant is not one of them. It is notable that elsewhere in the Act, there are provisions for requests for investigations or inquiries by individuals: s. 26 provides that the Lieutenant Governor in Council may direct the Commission to inquire into any matter relating to crime or law enforcement; and Part V sets out a detailed process to deal with complaints from members of the public.

[97] I conclude that the decision of the Commission not to investigate the matter at the request of the applicant is not a statutory power of decision that is subject to judicial review because the Commission was not affecting the applicant’s legal rights when it made its decision.

The Minister

[98] The above analysis focuses on the decision of the Commission not to investigate the matter. In my opinion, the same reasoning that applies to the request made of the Commission applies to the request made of the Minister except that the Minister is one step further removed from the ultimate decision to commence an investigation: there is no statutory provision for the applicant to make a request to the Minister or for the Minister to consider such a request; the Minister may request the Commission to investigate; and the Commission may then decide to investigate.

[99] The Minister, in deciding not to request the Commission to investigate, did not owe a duty to the applicant and was not affecting any rights of the applicant. I conclude that there is no basis for a claim for mandamus, certiorari or judicial review of a statutory power of decision against the Minister.

[100] The applicant suggests that the Commission might have been more inclined to investigate had the request been made by the Minister. While this may be so, it remains the fact that there is no duty, explicit or implicit, on the part of the Minister to accede to the applicant’s request to make such a request. There is nothing to suggest that the Minister, in deciding whether to make such a request, should be guided by anything other than the public interest.

Summary and Conclusion

[101] For the reasons given, I conclude that the applicant does not have standing to challenge the decisions of the Commission and the Minister. Even if he did have standing, I conclude that it is “plain and obvious” that his case for mandamus, certiorari or judicial review of a statutory power of decision cannot succeed. That is because neither the Commission nor the Minister, in making their respective decisions, owed a duty to the applicant or affected any rights of the applicant.

[102] The application for judicial review as against the Commission and the Minister is therefore dismissed.

[103] Given this conclusion, it is not necessary to consider the alternative relief sought by the respondents, that is, severance. The applicant’s cross-motion for the delivery of proceedings is moot. It is therefore dismissed.

[104] The Minister is not seeking costs. The applicant and the Commission agreed that, as between the two of them, a costs award to the successful party of $6,000 would be reasonable. Costs are therefore awarded to the Commission, payable by the applicant, in the amount of $6,000, inclusive of disbursements and HST.

Herman J.

Released: March 10, 2011