George v. Anishinabek Police Service, 2013 ONSC 1417
CITATION: George v. Anishinabek Police Service, 2013 ONSC 1417
DIVISIONAL COURT FILE NO.: 563/12
DATE: 20130306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, NORDHEIMER AND CONWAY JJ.
BETWEEN:
DEREK GEORGE
Applicant
– and –
POLICE GOVERNING AUTHORITY – ANISHINABEK POLICE SERVICE
Respondents
-and -
CHIEF JOHN SYRETTE – ANISHINABEK POLICE SERVICE
Respondents
Leo A. Kinahan, for the Applicant
David G. Cowling and Ian Johnstone, for the Respondents
HEARD at Toronto: March 6, 2013
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (orally)
[1] The applicant seeks judicial review of the decision of the Police Governing Authority for the Anishinabek Police Service dated September 20, 2012 in which the PGA granted an extension of the six month limitation on the service of a Notice of Hearing involving the applicant, Derek George, with respect to possible disciplinary action.
[2] The applicant is a serving constable with the APS and has been since 1995. On July 27, 2011, the applicant was advised orally of allegations of criminal misconduct by him that had occurred the day before and that were being investigated by the APS. At the time, he was suspended with pay. He was served with a written Notice of Suspension on July 28, 2011.
[3] The criminal investigation was completed on October 4, 2011 and on October 6, 2011, the applicant was advised orally that no criminal charges would be laid against him. On October 7, 2011, the applicant was advised that he was now the subject officer in a complaint from the Chief of Police regarding the same matter.
[4] On November 4, 2011, the applicant was placed on administrative duties. This situation continued until September 21, 2012 at which time the applicant was served with a Notice of Hearing charging him with discreditable conduct and neglect of duty (x2) contrary to the Code of Conduct of the APS. At that time, he was suspended without pay and was ordered to attend for a first appearance on September 24, 2012.
[5] Subsequent to these events, the applicant learned, through the disclosure process, that on September 20, 2012 the PGA had, at the request of the Chief of Police, extended the six month time limit for the service of a Notice of Hearing. No notice of this request had been given to the applicant and, consequently, the applicant had not had any opportunity to make submissions of any type to the PGA regarding whether the extension ought to be granted.
[6] The applicant now brings this application for judicial review in which he seeks to quash the decision of the PGA to extend the time for service of the Notice of Hearing, prohibit the Chief of Police from proceeding with any hearing and compelling the PGA and the Chief of Police to pay the salary for the applicant for the time since his suspension.
[7] The respondents’ response to this application is to (a) submit that the application is premature and (b) submit that, in any event, the respondents acted reasonably in the circumstances.
[8] Dealing first with the prematurity argument, I do not accept that the remedy sought by the applicant is premature nor do I accept that the applicant should have to await the actual hearing and seek any relief to which he might be entitled only at that time. The respondents rely, in this regard, on the decisions in Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div. Ct.), Ackerman v. Ontario (Provincial Police), 2010 ONSC 910, [2010] O.J. No. 738 (Div. Ct.) and Martinez v. Toronto (City) Police Services Board, [2012] O.J. No. 2301 (Div. Ct.). In my view, none of those cases are similar to the case here as, in each of those cases, the officers involved were given notice of the application for an extension of time and they were permitted to make submissions before the decision was made. In each of those cases, therefore, the minimal requirements of procedural fairness were met. The same cannot be said for the case here.
[9] It is well established in cases such as the ones I have just mentioned, along with Forestall v. Toronto Police Services Board, 2007 31785 (ON SCDC), [2007] O.J. No. 3059 (Div. Ct.), that an officer in a situation, such as the applicant faces here, is entitled to some measure of procedural fairness. While the degree of procedural fairness has been characterized as “minimal”, that characterization does not obviate the need for some basic steps to be taken. As the court in Forestall said at para. 53:
Rather, as indicated above, minimal rights of procedural fairness must be respected including notice, appropriate disclosure and an opportunity to respond.
[10] The failure of the Chief of Police to give notice to the applicant and allow him the opportunity to make submissions, and the failure of the PGA to ensure that those steps had been taken, renders the decision of the PGA to grant the extension fundamentally flawed. As such, it places the PGA’s decision in that category of decisions that engage exceptional circumstances.
[11] While we agree that interim or interlocutory decisions of tribunals ought not to be reviewed piecemeal, that general principle does not apply in exceptional circumstances. As the court in Ackerman observed, at para. 26:
There will 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.
[12] We consider the decision here to be one of those rare situations.
[13] That conclusion renders the second submission, that is that the respondents acted reasonably, essentially irrelevant. Reasonableness goes to the merits of the PGA’s decision, not to the issue of whether the PGA had jurisdiction to make the decision. As the court in Forestall also said, at para. 38:
No assessment of the appropriate standard of review is necessary where the requirements of natural justice and procedural fairness are in issue. A breach of the rules of natural justice or procedural fairness is an excess of jurisdiction.
[14] On this point, I will briefly address the contention of the respondents that because they have never, in the past, given notice of these applications to the officers involved that that serves to justify or excuse the failure to give notice here. I do not know of any authority, and none was cited, that establishes that a practice of not affording procedural fairness can, in some fashion, justify a continuation of that practice or otherwise bestow jurisdiction on a tribunal where that jurisdiction would be absent.
[15] I also reject the assertion in the respondent’s submissions that the nature of the scheme that governs the APS is not analogous to that which governs an ordinary police service, which is established by statute, and therefore the APS is not to be held to this same minimal level of procedural fairness. There is nothing in the scheme that establishes the APS that suggests that officers employed by the APS are less deserving of, or less entitled to, compliance with the principles of natural justice where their position as officers is potentially at risk. The fact that the provision in the agreement that allows for the extension of time is the mirror image of the provision contained in the Police Services Act, R.S.O. 1990, c. P.15 only serves to reinforce that conclusion.
[16] I would note on this point that the respondents accept that a duty of procedural fairness was owed to the applicant – a concession that would seem to have been unavoidable in light of this court’s decision in McDonald v. Anishinabek Police Service, 2006 37598. I would also note on this point that insofar as the respondents rely on the decision in MacNeil v. Edmonton (City), [2009] A.J. No. 309 (Q.B.), I decline to follow it for, among other reasons, its conclusion is contrary to the thrust of the reasoning in McDonald, Forestall and other decisions of this court that I have mentioned.
[17] As a consequence, the decision of the PGA cannot stand and must be quashed. That said, I do not consider it appropriate to grant any of the other relief sought by the applicant with one exception. The proper result is to put the parties back into the same position that they were before the extension was granted. The Chief of Police, if so advised, would thus be once again entitled to seek an extension of time provided, however, that the applicant is accorded procedural fairness in the process as outlined in Forestall. On that point, should such an application be made, different members of the PGA must decide it.
[18] It follows from that conclusion that the applicant ought to have remained on salary during this period of time as it appears that the sole triggering event for the suspension of his salary was the granting of the extension by the PGA. The applicant is therefore entitled to receive his salary from September 20, 2012 to today. Going forward the matter is left to the existing employer/employee arrangements.
[19] The application for judicial review is granted and the decision of the PGA dated September 20, 2012 granting an extension of time for the Notice of Hearing is quashed. The APS is ordered to pay the applicant his salary for the period September 20, 2012 to today’s date inclusive.
MOLLOY J.
[20] The application is granted for oral reasons given by Nordheimer J. today. Order to go as follows:
The decision of the Anishinabek Police Governing Authority dated September 20, 2012 is quashed.
Any further application for an extension of time to serve a Notice of Hearing shall be heard by members of the Police Governing Authority who were not involved in the September 20, 2012 decision.
The Anishinabek Police Service shall pay to the applicant his full salary from September 21, 2012 to today’s date, inclusive.
Costs to be dealt with in writing, the applicants’ submissions to be delivered by April 30, 2013 and responding submissions by May 31, 2013.
NORDHEIMER J.
MOLLOY J.
CONWAY J.
Date of Reasons for Judgment: March 6, 2013
Date of Release: March 12, 2013
CITATION: George v. Anishinabek Police Service, 2013 ONSC 1417
DIVISIONAL COURT FILE NO.: 563/12
DATE: 20130306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, NORDHEIMER AND CONWAY JJ.
BETWEEN:
DEREK GEORGE
Applicant
– and –
POLICE GOVERNING AUTHORITY – ANISHINABEK POLICE SERVICE
Respondents
-and -
CHIEF JOHN SYRETTE – ANISHINABEK POLICE SERVICE
Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: March 6, 2013
Date of Release: March 12, 2013