Endicott v. Office of the Independent Police Review Director

[Indexed as: Endicott v. Ontario (Office of the Independent Police Review Director)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Molloy, Lederer and Edwards JJ.

May 2, 2013

115 O.R. (3d) 328 | 2013 ONSC 2046

Case Summary

Administrative law — Judicial review — Statutory power of decision — Independent Police Review Director ("IPRD") exercising statutory power of decision within meaning of s. 10 of Judicial Review Procedures Act when it made decision under s. 60 of Police Services Act not [page329] to deal with complaint — IPRD required to file record of proceedings when complainant applied for judicial review of that decision — Judicial Review Procedures Act, R.S.O. 1990, c. J.1, s. 10 — Police Services Act, R.S.O. 1990, c. P.15, s. 60.

The applicant filed complaints against the Toronto Police Service and the Ontario Provincial Police. The Independent Police Review Director ("IPRD") exercised its discretion under s. 60 of the Police Services Act ("PSA") to refuse to deal with the complaints. The applicant applied for judicial review of those decisions. The IPRD refused to file a record of proceedings on the basis that it was not required to do so under s. 10 of the Judicial Review Procedures Act ("JRPA") as it was not exercising a statutory power of decision when it decided to reject the complaints. The applicant moved successfully to compel the IPRD to deliver a record of proceedings. The IPRD applied for an order setting aside or varying the motion judge's order.

Held, the application should be dismissed.

The IPRD exercises a statutory power of decision within the meaning of s. 10 of the JRPA when it makes a decision under s. 60 of the PSA not to deal with a complaint. The IPRD does not have a broad and sweeping discretion whether to proceed with a complaint. It is mandated to ensure that complaints are investigated except where there are grounds to weed out complaints as specified under s. 60 of the PSA. There is no general power in the IPRD to dismiss a complaint without an investigation.

Barrington v. Institute of Chartered Accountants, 2004 34623 (ON SCDC), [2004] O.J. No. 4351, 191 O.A.C. 230, 134 A.C.W.S. (3d) 744 (Div. Ct.); Batacharya v. College of Midwives of Ontario, [2012] O.J. No. 697, 2012 ONSC 1072, 37 Admin. L.R. (5th) 165, 212 A.C.W.S. (3d) 560 (Div. Ct.); Dolan v. Ontario (Civilian Commission on Police Services), [2011] O.J. No. 1028, 2011 ONSC 1376, 277 O.A.C. 109 (Div. Ct.); Jacko v. Ontario (Chief Coroner), 2008 69579 (ON SCDC), [2008] O.J. No. 5376, 306 D.L.R. (4th) 126, 247 O.A.C. 318, 174 A.C.W.S. (3d) 114 (Div. Ct.); PC Ontario Fund v. Essensa, [2012] O.J. No. 2908, 2012 ONCA 453, 292 O.A.C. 395, 351 D.L.R. (4th) 374, 216 A.C.W.S. (3d) 376, affg [2011] O.J. No. 2366, 2011 ONSC 2641, 278 O.A.C. 383 (Div. Ct.), distd

Coote v. Assante Corp., [2007] O.J. No. 1902, 224 O.A.C. 164, 2007 65613, 157 A.C.W.S. (3d) 729 (Div. Ct.); Coote v. Zellers, [2007] O.J. No. 4410, 231 O.A.C. 129, 2007 48985, 161 A.C.W.S. (3d) 952 (Div. Ct.); Kipiniak v. Ontario Judicial Council, [2012] O.J. No. 5299, 2012 ONSC 5866, 298 O.A.C. 389 (Div. Ct.); Payne v. Ontario (Human Rights Commission), 2000 5731 (ON CA), [2000] O.J. No. 2987, 192 D.L.R. (4th) 315, 136 O.A.C. 357, 25 Admin. L.R. (3d) 255, 2 C.C.E.L. (3d) 171, [2000] CLLC Â230-039, 38 C.H.R.R. D/367, 100 A.C.W.S. (3d) 634 (C.A.); Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, [2004] S.C.J. No. 16, 2004 SCC 31, 238 D.L.R. (4th) 1, 319 N.R. 322, J.E. 2004-1087, 187 O.A.C. 1, 12 Admin. L.R. (4th) 171, 33 C.C.E.L. (3d) 1, [2004] CLLC Â230-021, 47 C.P.C. (5th) 203, 19 C.R. (6th) 203, 130 A.C.W.S. (3d) 816, affg (2003), 2003 8701 (ON CA), 63 O.R. (3d) 97, [2003] O.J. No. 215, 223 D.L.R. (4th) 85, 167 O.A.C. 356, 22 C.C.E.L. (3d) 201, 27 C.P.C. (5th) 223, 120 A.C.W.S. (3d) 1014 (C.A.), varg [2001] O.J. No. 2788, 148 O.A.C. 260, 106 A.C.W.S. (3d) 501 (Div. Ct.), consd

Other cases referred to

Deeb v. Investment Industry Regulatory Organization of Canada, [2012] O.J. No. 2873, 2012 ONSC 3443 (Div. Ct.); Endicott v. Office of the Independent Police Review Director, [2012] O.J. No. 5406, 2012 ONSC 6250, 300 O.A.C. 316, 45 Admin. L.R. (5th) 337 (Div. Ct.); Peach Hill Management Ltd. v. Canada, 2000 15319 (FCA), [2000] F.C.J. No. 894, 257 N.R. 193, [2000] G.S.T.C. 45, 98 A.C.W.S. (3d) 813 (C.A.); [page330] R. v. Lavigne, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10, 2006 SCC 10, 264 D.L.R. (4th) 385, 346 N.R. 160, J.E. 2006-727, 206 C.C.C. (3d) 449, 36 C.R. (6th) 55, 68 W.C.B. (2d) 792, EYB 2006-103137; R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, 61 D.L.R. (4th) 725, 95 N.R. 149, [1989] 4 W.W.R. 385, J.E. 89-827, 58 Man. R. (2d) 63, 50 C.C.C. (3d) 566, 69 C.R. (3d) 281, 8 W.C.B. (2d) 459

Statutes referred to

Coroner's Act, R.S.O. 1990, c. C.37, ss. 20, 41(1)

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 21(5), 51.3, 51.4(1) [as am.], (3), (4), (7)

Election Finances Act, R.S.O. 1990, c. E.7

Good Government Act, 2009, S.O. 2009, c. 33, Sch. 9, s. 10

Human Rights Code, R.S.O. 1990, c. H.19, ss. 32 [as am.], 33 [as am.], 34 [as am.], (1)(b), 36

Judicial Review Procedures Act, R.S.O. 1990, c. J.1, ss. 1 [as am.], (b), 10

Police Services Act, R.S.O. 1990, c. P.15, Part II.1 [as am.], s. 25 [as am.], Part V, ss. 58, [as am.], (1) [as am.], 59, [as am.], (1) [as am.], (2) [as am.], 60 [as am.], (1) [as am.], (2) [as am.], (3) [as am.], (4) [as am.], (5) [as am.], (6) [as am.], (7) [as am.], 61 [as am.], (5) [as am.], 66, (1), (2), (3), (4), 71(1) [as am.], (3), 83(1), (3)

Public Inquiries Act, R.S.O. 1990, c. P.41 [as am.]

Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 36(3) [as am.]

Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 3(1) [as am.], (2) [as am.], (d), (e), (f), 20

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 39.03, 68, 68.04

Authorities referred to

LeSage, Patrick J., Report on the Police Complaints System in Ontario (Toronto: Ontario Ministry of the Attorney General, 2005)

Ontario, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 38th Parl., 2nd. Sess. (January 30, 2007), at JP 1022 and 1026, and (February 7, 2007), at JP 1107-1108

APPLICATION to set aside or vary an order requiring the delivery of the record of proceedings.

Alexi N. Wood and Safina Lakhani, for applicant (responding party).

Heather MacKay, for respondent (moving party).

The judgment of the court was delivered by

MOLLOY J.: —

A. Background

[1] Clare Endicott is a private citizen with residences in both Toronto and Muskoka. She filed complaints against the Toronto Police Service and the Ontario Provincial Police, alleging that [page331] police officers in both forces violated her liberty and privacy rights in incidents that occurred in Toronto and Muskoka in August 2011. The complaints were filed under relatively recent legislation creating the Office of the Independent Police Review Director ("IPRD"), which provides a process for receiving and dealing with civilian complaints about police policy, services or conduct.

[2] The IPRD refused to deal with both of Ms. Endicott's complaints. The IPRD decision is set out in two letters -- one dated September 23, 2011 in relation to the Toronto Police Service, and the other dated November 8, 2011 in relation to the Ontario Provincial Police. Although the letters purport to be authored by two different individuals, the operative paragraph in each letter is identical, stating as follows:

The OIPRD is aware of your concerns. However, taking all the information into consideration, the Director has not identified any breach of the Police Services Act or its Code of Conduct. Therefore, we have no jurisdiction to deal with this matter, and our file is now closed.

[3] Ms. Endicott filed a notice of application for judicial review of the IPRD decisions.

[4] Pursuant to s. 10 of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 ("JRPA"), when a notice of application for judicial review is taken from a decision made in the exercise of a "statutory power of decision", the decision maker is required to file the record of proceedings with the court. In this case, the IPRD refused to file a record of proceedings, taking the position that it was not exercising a "statutory power of decision" when it decided to reject Ms. Endicott's complaints.

[5] Ms. Endicott brought a motion before a single judge of this court, seeking to compel the IPRD to deliver a record of proceedings. That motion was argued before Kiteley J. on November 2, 2012. Following argument, Kiteley J. delivered oral reasons for decision concluding that the IPRD was exercising a statutory power of decision and directing it to file a record of proceedings [[2012] O.J. No. 5406, 2012 ONSC 6250 (Div. Ct.)].

[6] The IPRD now applies to a full panel of the Divisional Court seeking an order setting aside or varying the order of the motion judge. For the reasons set out below, the IPRD motion is dismissed. I agree with the decision of the motion judge. The IPRD was exercising a statutory power of decision when it decided to "not deal with" Ms. Endicott's complaints and is required to file a record of proceedings in the judicial review proceedings. [page332]

B. Standard of Review

[7] The parties submit, and I agree, that the issue before the motion judge is a question of law, upon which she is required to be correct.[^1]

C. The Statutory Scheme for Complaints Against Police

Legislative history

[8] The new legislative regime for processing complaints against the police, which is at the heart of this matter, had its genesis in a 2005 report by the Honourable Patrick LeSage, former chief justice of the Ontario Superior Court.[^2] The report had been commissioned by the Ontario Government in 2004 in order to obtain recommendations on the development of a model for resolving public complaints about the police in a manner that is "fair, effective and transparent".[^3]

[9] It is apparent from Hansard that the legislative amendments creating the current regime and setting up the IPRD flowed directly from the LeSage report recommendations. In particular, the amendments were motivated by a desire to have an accessible complaints process that involves screening by an independent body, which is transparent and accountable. It was recognized that the removal of barriers to receiving complaints from the public needed to be balanced by a discretion vested in this independent body to weed out complaints not properly within the process or which are frivolous or vexatious, or filed beyond a reasonable time after the events.[^4]

Relevant provisions

[10] Part II.1 of the Police Services Act ("PSA")[^5] provides for the appointment of the IPRD and sets out the qualifications and [page333] some of the powers associated with the position. Further powers are set out in Part V of the PSA, which deals with complaints and disciplinary proceedings against the police. All complaints made by a member of the public go through the IPRD. Section 58(1) states:

58(1) Any member of the public may make a complaint under this Part to the Independent Police Review Director about,

(a) the policies of or services provided by a police force; or

(b) the conduct of a police officer.

[11] The IPRD has a mandatory responsibility under the Act to review all complaints made by members of the public. Section 59(1) provides:

59(1) The Independent Police Review Director shall review every complaint made to him or her by a member of the public under this Part, and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer.

(Emphasis added)

[12] Further, the IPRD is mandated to either retain the complaint and conduct its own investigation or refer it to the appropriate body for investigation, subject only to the power to refuse to deal with the complaint under s. 60. This duty to either refer or retain is set out in s. 59(2) as follows:

59(2) Subject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61.

(Emphasis added)

[13] If a complaint about the conduct of a police officer is referred to the chief of police under s. 61, the chief of police is obligated to conduct an investigation and to file a written report of that investigation. Section 66(1) provides:

66(1) The chief of police shall cause every complaint referred to him or her by the Independent Police Review Director under clause 61(5)(a) to be investigated and the investigation to be reported on in a written report.

[14] Depending on the results of the investigation, the chief has a number of options:

(1) Where the chief of police believes on reasonable grounds that there has been police misconduct or unsatisfactory work performance, the chief may conduct a disciplinary hearing.[^6] The Statutory Powers Procedure Act applies to the [page334] hearing and the person who filed the complaint is a full party, with all of the rights that entails.[^7]

(2) Where the chief of police concludes there has been misconduct or unsatisfactory job performance that is not of a serious nature, the chief may elect to resolve the matter informally, but only if both the police officer and the complainant consent.[^8]

(3) If the chief of police considers the complaint to be unsubstantiated, the chief may decide to take no action, but must advise the complainant and the IPRD in writing of such a decision.[^9]

[15] If the chief of police chooses any option other than a full hearing, the complainant is entitled to request a review by the IPRD.[^10] Further, the IPRD upon receipt of such a request, is required to conduct a review. The IPRD has extensive powers upon review pursuant to s. 71(3), as follows:

71(3) Upon completion of the review of a decision, the Independent Police Review Director may,

(a) confirm the decision;

(b) direct the chief of police to deal with the complaint as the Independent Police Review Director specifies;

(c) assign the investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force to which the complaint relates;

(d) take over the investigation of the complaint; or

(e) take or require to be taken any other action with respect to the complaint that the Independent Police Review Director considers necessary in the circumstances.

[16] All of these options, however, only arise if the IPRD decides to deal with the case through referral for investigation by a chief of police or by retaining the file and conducting its own investigation. Whether or not the IPRD decides to deal with the complaint is governed by s. 60 of the PSA, and it is this [page335] provision that is central to the case now before us. Section 60(1) provides:

60(1) The Independent Police Review Director may, in accordance with this section, decide not to deal with a complaint made to him or her by a member of the public under this Part.

(Emphasis added)

[17] Subsections 60(2) through (6) set out the circumstances under which the IPRD may decide to not deal with a complaint. They include circumstances where the complaint is made more than six months after the facts on which it is based occurred[^11] or where the policy, service or conduct complained of did not have a direct effect on the complainant.[^12] None of those circumstances are said to apply in this case.

[18] In addition, the IPRD may exercise its discretion not to deal with a complaint under s. 60(4), which states:

60(4) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:

1. The complaint is frivolous or vexatious or made in bad faith.

2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.

3. Having regard to all the circumstances, dealing with the complaint is not in the public interest.

[19] If the IPRD decides to not deal with a complaint for any of the above reasons, s. 60(7) of the PSA provides that the IPRD "shall notify the complainant and the chief of police of the police force to which the matter relates in writing of the decision, with reasons".

E. Did the IPRD Exercise a "Statutory Power of Decision"?

What is a "statutory power of decision"?

[20] The IPRD is required to file a record of proceedings in this case if its decision under s. 60 of the PSA constitutes a "statutory power of decision" within the meaning of s. 10 the Judicial Review Procedure Act. Section 10 of the JRPA states:

10. When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in [page336] the court for use on the application the record of the proceedings in which the decision was made.

[21] The JRPA distinguishes between a "statutory power" and a "statutory power of decision", defining them as follows in s. 1:

"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;

"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.

[22] In this case, subpara. (b) [of the definition of "statutory power of decision"] dealing with eligibility for a benefit or licence is not at issue. Thus, to qualify as a "statutory power of decision", the power to make the decision in this case must be conferred by statute and the decision must "decide" or "prescribe" the legal rights or privileges of any party or person.

[23] Counsel for the IPRD conceded that the power exercised under s. 60 is subject to judicial review, but takes the position that it is not a "statutory power of decision" because it does not determine the rights of any person, but rather merely makes a direction or order.

[24] Until the decision of the motion judge in this case, there had been no judicial determination of this issue within the context of s. 60 of the PSA.

The decision of the motion judge

[25] The motion judge held that the IPRD exercised a statutory power of decision when it decided not to deal with Ms. Endicott's complaint. The motion judge found that a member of the public has a statutory right to file a complaint and to have that complaint dealt with according to ss. 59 and 60 of the PSA. She [page337] rejected the argument of counsel for the IPRD that the IPRD has a broad discretion as to whether to screen complaints in or screen them out, and characterized the function of the IPRD under s. 60 as "screening out" complaints, as opposed to "screening in". The motion judge concluded that both on a literal and purposive interpretation of the legislation, the intent is that a complaint will be dealt with unless the IPRD screens it out under the defined and limited criteria set out in s. 60.

[26] The motion judge distinguished case law relied upon by the respondent on the basis that they dealt with a different statutory scheme or the person seeking a remedy was not affected by the decision.

The Statutory Powers Procedure Act and Rule 68 are not relevant

[27] Counsel for the IPRD does not contend that decisions of the IPRD under s. 60 of the PSA are immune from judicial review. However, she points to the fact that Rule 68 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 contemplates there will be some applications for judicial review which, by their nature, do not have a record of proceedings. She further submits that because the Statutory Powers Procedure Act ("SPPA")[^13] does not apply to a decision under s. 60 of the PSA, such a decision is by definition not a "statutory power of decision".

[28] Clearly, there are many types of judicial review applications for which there would be no record of proceeding, sometimes because there wasn't even a proceeding, but rather a ministerial or administrative action or inaction. Rule 68.04 simply recognizes that there will sometimes be a record of proceedings and sometimes not. It does no more than that. It does not assist in the interpretation of either s. 10 of the JRPA or the nature of the powers of the IPRD under the PSA.

[29] Likewise, the Statutory Powers Procedure Act provides no such assistance. It was generally accepted by all counsel, and I agree, that a decision of the IPRD under s. 60 is not one to which the SPPA applies. Section 83(1) of the PSA stipulates that where a hearing is ordered with respect to a complaint of alleged misconduct by a police officer, the SPPA applies to that hearing. There is no such direction with respect to the initial decision by the IPRD under ss. 59 and 60, nor would I expect there to be. Clearly, a hearing is not contemplated for such a decision. However, just because an actual hearing is not required does not [page338] mean that the decision is not a statutory power of decision. Or to put it another way, not every statutory power of decision necessarily requires a hearing.

[30] The SPPA adopts the same definition for a "statutory power of decision" as is set out in s. 10 of the JRPA. Counsel for the IPRD points to s. 20 of the SPPA, which sets out what a tribunal is required to include in a record of proceedings. She argues that the SPPA record of proceedings clearly contemplates it applies to a proceeding in which a hearing is held, and that s. 10 of the JRPA should be interpreted in the same manner. Therefore, she submits, since there was no hearing or requirement of a hearing by the IPRD, there cannot be a requirement to file a record of proceedings.

[31] Section 20 of the SPPA provides:

20. A tribunal shall compile a record of any proceeding in which a hearing has been held which shall include,

(a) any application, complaint, reference or other document, if any, by which the proceeding was commenced;

(b) the notice of any hearing;

(c) any interlocutory orders made by the tribunal;

(d) all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;

(e) the transcript, if any, of the oral evidence given at the hearing; and

(f) the decision of the tribunal and the reasons therefor, where reasons have been given.

(Emphasis added)

[32] The difficulty with the argument made by counsel for IPRD is that it is circular. Of course, the contents of the record of proceedings described by s. 20 of the SPPA seems to reflect a proceeding that involves a hearing. The section itself begins by stating that it relates to a proceeding "in which a hearing has been held". Further, the SPPA itself only applies to those statutory powers of decision for which there is a legal requirement for a hearing before the decision is made. Section 3(1) states:

3(1) Subject to subsection (2), this Act applies to a proceeding by a tribunal in the exercise of a statutory power of decision conferred by or under an Act of the Legislature, where the tribunal is required by or under such Act or otherwise by law to hold or to afford to the parties to the proceeding an opportunity for a hearing before making a decision. [page339]

[33] It is circular to argue that (1) the SPPA applies to statutory powers of decision; (2) the SPPA record of proceedings relates to hearings; and (3) therefore, any requirement of a record of proceedings under the JRPA only applies to SPPA hearings. The logical step that is missing is that not all statutory powers of decision are governed by the SPPA. Some such powers of decision are specifically excluded by s. 3(2) of the SPPA (e.g., coroner's inquests, arbitrations under the Arbitrations Act or Labour Relations Act, and public inquiries under the Public Inquiries Act, R.S.O. 1990, c. P.41).[^14] Others are excluded because they are not within the compass of s. 3(1), which only relates to proceedings for which a hearing is required. Thus, there will clearly be cases in which a statutory power of decision has been exercised and to which the SPPA will not apply. However, the requirement to file a record of proceedings under the JRPA is stated broadly to apply to all applications for judicial review in relation to any statutory power of decision, and is not restricted to only those decisions that are made after hearings to which the SPPA applies.

[34] In my view, there is nothing about s. 20 of the SPPA or Rule 68 that has any impact on whether or not the IPRD decision in this case is a statutory power of decision within the meaning of s. 10 of the JRPA.

Principles of statutory interpretation

[35] As did the motion judge, I reject the respondent's argument that the IPRD has a broad and sweeping discretion as to whether or not to proceed with a complaint. In my view, the IPRD is mandated to ensure complaints are investigated except where there are grounds to weed out complaints as specified under s. 60 of the PSA. I also agree with the motion judge's conclusion that both a literal and purposive construction of the legislative provisions at issue in this case support such a conclusion.

[36] The modern approach to statutory interpretation is that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the object of the Act, and the intention of Parliament".[^15]

[37] The scheme of the PSA is that all complaints about police are processed through an independent body (the IPRD), rather [page340] than being lodged directly with police forces. The underlying presumption created by the legislation is that all complaints will be investigated, either by the IPRD itself or by another entity (such as a chief of police) to whom the complaint is referred by the IPRD. That presumption is created by the combined effect of the mandatory language of

s. 59(1) -- which states that the IPRD shall review every complaint;

s. 59(2) -- which states that the IPRD shall refer a complaint to be dealt with under s. 61 or retain it;

s. 61(5) -- which states that in respect of a complaint about the conduct of a police officer, the IPRD shall refer the complaint to a chief of police, or retain it and conduct its own investigation; and

s. 66 -- which states that a chief of police to whom a complaint is referred under s. 61(5) shall investigate the complaint.

[38] The requirement that every complaint be investigated is subject only to the IPRD's power to decide not to deal with the complaint under s. 60 of the PSA (and possibility to a lack of jurisdiction, a point to which I will return shortly). Most importantly, there is no general power in the IPRD to dismiss a complaint without an investigation. The legislation specifies the circumstances in which that power may be exercised, and does so in permissive, rather than mandatory, language. I recognize that one of the grounds for deciding not to deal with a complaint is a broad discretion under s. 60(4) to not deal with the complaint where in the opinion of the IPRD it is not in the public interest to do so. However, that power must be read in the context of the structure and language of the legislation and its overall intent. Read in that manner, the contextual focus is on processing and investigating complaints, except in the limited circumstances prescribed under s. 60. The power vested in the IPRD under s. 60 is meant to be a residual one to weed out clearly unmeritorious complaints at an early stage, rather than clogging up the system with the investigation of complaints that do not warrant such attention.

[39] Thus, on a literal reading of the legislation, giving the words used their plain and ordinary meaning, there is a right to file a complaint, and a right to have that complaint dealt with in accordance with the Act, which means there will be an investigation unless one of the criteria in s. 60 is established and the [page341] IPRD chooses to exercise its discretion to not deal with the complaint on that basis.

[40] Not only is such an interpretation consistent with the language of the legislation, it accords with the legislative intent of the drafters. It is apparent from the LeSage report, and the legislative debates that preceded the implementation of its recommendations through legislation, that the underlying purpose of the legislation is to enhance public confidence in policing by ensuring a more transparent and independent process for dealing with complaints against the police. It is also apparent from the debates that s. 60 was meant to serve as a safety valve to remove complaints without merit. Before the Standing Committee on Justice Policy, Graham Boswell (counsel with the policy division of the Ministry of the Attorney General) was questioned by Mr. David Zimmer (member for Willowdale) about the screening out of complaints process as follows:[^16]

Mr. David Zimmer (Willowdale): The idea behind the legislation is to ensure that serious complaints and complaints that should be looked into are dealt with, while at the same time ensuring, as you've said, that frivolous and vexatious and inappropriate complaints don't clog up, clutter up, the system. Can you give us your thoughts or observations on how this process of screening out the vexatious and inappropriate complaints that are just designed to be mischievous is going to play out and how you've struck the right balance between screening out inappropriate complaints and proceeding with complaints that should be heard?

Mr. Boswell: Sure. I think one of the issues to keep in mind is that currently there are criteria that allow frivolous, vexatious or bad-faith complaints to be struck out at an early stage. I don't think many complaints fit into that category, but there certainly are some that do.

We would add some new categories in Bill 103 if it's passed. Complaints could be struck out if they could be more appropriately dealt with under another act or law and, I think even more significantly, complaints could be struck out if they are not in the public interest, having regard to all the circumstances. One of the reasons behind having a criterion like that is as follows: Lots of individuals may make a complaint where they are not being frivolous, they're certainly not being vexatious, they're certainly not acting in bad faith, but they simply may not understand police procedures. The fact is that it can sometimes be quite offensive to those complainants to have their complaints struck out on the grounds of being frivolous or vexatious. I think "not in the public interest" would allow the new IPRD to deal with complaints in a more appropriate manner.

Mr. Zimmer: Am I correct that if someone was unhappy with how IPRD categorized a complaint -- that is, they said it's not in the public interest or [page342] it's frivolous or vexatious -- there would be a review to Divisional Court of that decision?

Mr. Boswell: There would be no statutory right of appeal. I couldn't say for sure how it would play out in the courts, but certainly there's no privative clause there designed to limit judicial review.

(Emphasis added)

[41] The language used by the drafters in dealing with the s. 60 powers of the IPRD is in sharp contrast to the language of s. 25 of that same statute, which deals with a discretion given to the Ontario Civilian Commission on Police Services ("OCCOPS") as to whether to investigate police conduct at the request of specified parties who are not members of the public. Section 25 of the PSA states:

25(1) 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.

[42] Principles of statutory interpretation require that, where possible, words in a statute are to be interpreted consistently throughout the statute. There is a presumption that the legislature avoids stylistic variation within a statute and that once a particular way of expression is adopted, that meaning alone is intended each time the expression is used. Conversely, where a different form of expression is used, there is an inference that a different meaning is intended.[^17]

[43] The discretion vested in the OCCOPS under s. 25 carries with it no presumption of an investigation, uses the permissive expression "may investigate" and places no strictures upon when OCCOPS could or should exercise its discretion not to investigate. In that situation, it is a reasonable construction that the [page343] only right vested in the organizations listed is the right to request an investigation. OCCOPS's decision whether or not to accede to that request is completely unfettered by the legislation. A very different format and language are used in respect of complaints by members of the public processed by the IPRD as provided for in ss. 59 and 60. First, there is mandatory language requiring that complaints be dealt with, and then permissive language that the IPRD "may" decide to "not deal with" a complaint in accordance with s. 60, which provides a list of the only circumstances in which such a decision can be made. There is a presumption that this difference means something. In my view, the reasonable construction of s. 60 is that IPRD's power to refuse to deal with a complaint is circumscribed and the IPRD does not have a broad unfettered discretion to screen out complaints as it sees fit.

[44] The IPRD argues in this case that the only right Ms. Endicott has under the legislation is the right to file a complaint. In particular, it argues that she has no right to an investigation or to a particular outcome. I do not agree. But for a decision by the IPRD under s. 60 (or possibly jurisdictional concerns), the complainant in this case would be entitled to an investigation of her complaint, either by the IPRD or the chief of police. If the chief of police determined the complaint to be unsubstantiated, the complainant would have a further right of a review by the IPRD. If the investigation revealed reasonable grounds for believing there had been misconduct or unsatisfactory work performance, the complaint would either proceed to a hearing or be resolved informally if the police chief considered that the subject conduct was not serious in nature. If the former, the complainant has full rights as a party. If the latter, no informal resolution is possible unless the complainant consents. These are substantial rights (or, at least, privileges), all of which are removed by a decision under s. 60 to not deal with the complaint. In my opinion, this constitutes a statutory power of decision.

[45] The existence of a statutory power of decision is not dependent on a decision that decides or prescribes rights that are otherwise absolute or not subject to any conditions. It is not accurate to say that Ms. Endicott has no "right" to an investigation of her complaint because her complaint can be rejected on specified grounds in the legislation. In my view, the more accurate way of expressing it is that Ms. Endicott has a right to file a complaint, a right to have that complaint investigated and a right to have it proceed to a hearing, provided relevant legislated preconditions are met. In respect of the right to an investigation, that right can be taken away by the IPRD on grounds specified [page344] in s. 60 of the PSA. In my view, that is the interpretation of the legislation that best accords with the language used and the legislative intention.

Applicable case law supports the "statutory power of decision" interpretation

[46] Counsel for the IPRD submits that the motion judge erred by failing to follow applicable case law and by improperly distinguishing those cases from the case before her. I disagree. As previously noted, this is a case of first impression; none of the cases cited dealt directly with s. 60 of the PSA. I agree with the motion judge that the case relied upon by the IPRD are distinguishable. Further, in my view, case law dealing with decisions of the Ontario Human Rights Commission under a since repealed version of the Ontario Human Rights Code, although not definitive, supports the conclusion that the decision of the IPRD in this case is a statutory power of decision.

[47] Counsel for the IPRD placed considerable emphasis on the decision of this court in Dolan v. Ontario,[^18] a case involving a civilian complaint about police misconduct under the statutory regime that existed prior to the creation of the IPRD. Mr. Dolan sought to have OCCOPS investigate his allegations of misconduct against several police officers, pursuant to s. 25 of the PSA. Mr. Dolan was himself a police officer and had also commenced a grievance on essentially the same issues. OCCOPS refused to conduct an investigation into the allegations. Mr. Dolan sought judicial review and the respondents brought a motion to dismiss the judicial review application on various grounds, one of which was that OCCOPS was not exercising a statutory power of decision. Herman J. noted (at para. 42) that OCCOPS had a broad discretion under s. 25 to decide what matters warrant investigation and that there are no criteria or factors specified in the legislation to fetter that discretion. She also noted that Mr. Dolan did not fall within the list of people or bodies listed in s. 25 as being entitled to even request an investigation by OCCOPS. She therefore concluded that OCCOPS's decision did not affect the rights of Mr. Dolan and was not a statutory power of decision.[^19]

[48] As I have already discussed (at paras. 41-43 above), the language and structure of OCCOPS's power to investigate under [page345] s. 25 is very different from the regime governing complaints to the IPRD under Part V of the PSA dealing with civilian complains against the police. Therefore, the finding in Dolan is distinguishable from the case at hand. I also note that even in Dolan, Herman J. pointed out that Mr. Dolan chose to bring his complaint under s. 25 rather than under Part V of the PSA, which provided a detailed process to deal with complaints from the public. That regime was different from the one that is now in the legislation. However, it would appear from the reasoning in Dolan that the same conclusion would not necessarily have been reached with respect to a dismissal of a complaint under Part V, even as it then existed.

[49] I would also distinguish the case of Jacko v. Ontario (Chief Coroner)[^20] because of the significant differences in the legislation involved. In that case, the Jacko family had asked the coroner to conduct an inquest into the death of their son. The coroner declined to do [so] and the family sought judicial review. When the coroner did not file a record of proceedings, the family sought an order that he do so. Thus, the same question was before the Divisional Court -- whether the decision not to proceed was a statutory power of decision within the meaning of s. 10 of the JRPA -- although in the context of quite different legislation. The coroner's decision was governed by s. 20 of the Coroner's Act,[^21] which states:

20. When making a determination whether an inquest is necessary or unnecessary, the coroner shall have regard to whether the holding of an inquest would serve the public interest and, without restricting the generality of the foregoing, shall consider,

(a) whether the matters described in clauses 31(1) (a) to (e) are known;

(b) the desirability of the public being fully informed of the circumstances of the death through an inquest; and

(c) the likelihood that the jury on an inquest might make useful recommendations directed to the avoidance of death in similar circumstances.

[50] The Divisional Court held that the coroner's decision as to whether to hold an inquest is based entirely on the public interest and not on any "rights" of the family of the deceased. As such, while his decision may be subject to judicial review, it was [page346] found not to be a statutory power of decision and there was no requirement to file a record of proceedings.

[51] While there is clearly a public interest component to the complaints provisions of the PSA, that is not the only consideration under the legislation. However, the relevant provisions of the Coroner's Act are solely about the general public interest. The PSA is structured and worded quite differently from the Coroner's Act, including the filing of complaints alleging wrongdoing, and entitlements to an investigation and to a hearing unless certain conditions specified in the legislation are met. If a hearing is ultimately ordered, it is very much an adversarial process in which the complainant is a full party, as is the police officer accused of misconduct. However, the family of a deceased person is not necessarily a party to an inquest. Anyone may apply to be given standing before the coroner conducting the inquest and standing is required to be granted if a person is found to be "substantially and directly interested in the inquest".[^22] The two statutory regimes are so different that I do not find the decision in Jacko to be applicable.

[52] In Batacharya v. College of Midwives of Ontario,[^23] the applicant, who was herself a midwife, had made a mandatory report to the college in the course of which she alleged misconduct and incompetence by another midwife, Ms. Cloutier-Holtz. An investigation was conducted and a report provided to the college's Inquiries, Complaints and Reports Committee ("ICRC"). The role of the ICRC is to determine whether there are grounds to refer to discipline or some other resolution. The ICRC concluded that in this case that it had no concerns about the standard of care provided by Ms. Cloutier-Holtz to her clients or any concern for public safety. It decided that no further action was required and provided a copy of its decision in this regard to Ms. Cloutier-Holtz, but not to Ms. Batacharya, whose report had triggered the investigation. In its decision, the ICRC expressed concerns about the integrity and professionalism of Ms. Batacharya. As a result of information discovered during the investigation of Ms. Cloutier-Holtz, the college directed an investigation as to the competence of Ms. Batacharya.

[53] Ms. Batacharya sought judicial review of the ICRC decision not to proceed to discipline against Ms. Cloutier-Holtz and took the position that the college was required to file a record of [page347] proceedings. On a motion on this issue, Pepall J. held that the ICRC did not exercise a statutory power of decision in respect of Ms. Batacharya because the decision did not relate in any way to her, or her rights. Pepall J. also noted that under the applicable legislation, the college was prohibited from disclosing its investigatory records as they contained personal information that was protected from disclosure under s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

[54] Again, I do not see this case as applicable here. Ms. Batacharya made a mandatory complaint to the college in respect of a professional colleague, which the college found to have been improperly motivated. There was nothing personal to Ms. Batacharya about which she was complaining. Disclosure of the report to Ms. Batacharya, or of the reasons for not proceeding to discipline, was clearly not contemplated by the legislation. On the contrary, it was prohibited by the legislation. The situation of Ms. Endicott and the nature of the PSA regime are clearly distinguishable.

[55] In Barrington v. Institute of Chartered Accountants,[^24] the Divisional Court considered whether the Professional Conduct Committee ("PCC") of the Institute of Chartered Accountants was exercising a statutory power of decision when it made a charge of professional misconduct against four chartered accountants. The Divisional Court held that the PCC's power to investigate and charge was not a statutory power of decision within the meaning of s. 10 of the JRPA. The court's reasons for reaching this conclusion are sparse. However, this was a judicial review proceeding brought in the course of a disciplinary process, in which there would be a full hearing on the merits. The court noted [at para. 7] that it was clear that the main purpose of the applicants in seeking a s. 10 record of proceedings from the institute "was to secure further production of documents which the respondent claimed were privileged". The court held (at para. 10) that any challenge to the adequacy of the pre-hearing disclosure should be brought in the first instance before the discipline committee hearing the charge. I would distinguish this decision on two grounds: (1) in Barrington, the applicant was attempting to obtain pre-hearing disclosure indirectly from the court rather than directly from the tribunal, a practice that was discouraged by the court; and (2) in Barrington, no rights [page348] had been decided as the matter had been referred for a full hearing, whereas Ms. Endicott's complaint has been terminated.

[56] Finally, the IPRD relies upon the Divisional Court decision in PC Ontario Fund v. Essensa,[^25] another case in which the central issue was whether a decision not to proceed with a "complaint" was a statutory power of decision. In that case, the Progressive Conservative Party of Ontario complained to Ontario's chief electoral officer ("CEO") about alleged irregularities in election financing by the Liberal Party during the 2003 and 2007 elections. In particular, the Conservatives alleged that the Working Families Coalition Canada Inc. ("WFC") was agent of the Liberal Party and that WFC advertising expenses should be considered to be contributions to the Liberal Party.

[57] The CEO retained legal counsel and a forensic accountant to carry out an investigation. Upon obtaining their report, the CEO concluded that there was no apparent contravention of the relevant provisions of the Election Finances Act, R.S.O. 1990, c. E.7 and he decided, therefore, not to report the matter to the Attorney General. The Progressive Conservatives sought judicial review of the CEO's decision not to refer the matter to the Attorney General. The respondents challenged the jurisdiction of the court to hear the matter. The Divisional Court held that judicial review was not available and dismissed the application.

[58] One of the reasons given for dismissing the application was that the CEO was not exercising a statutory power of decision. Swinton J. held, at para. 16:

The PCPO had no right to have an investigation conducted. The CEO has no statutory duty either to receive or to investigate complaints under the EFA [Election Finances Act]. The manner in which the CEO deals with a complaint is entirely a matter for his discretion. His determinations affect no rights. Nor did the CEO's disposition of the complaint affect any of the PCPO's rights, interests, property or privileges. This is all the more the case where the CEO's determination that there was no apparent contravention to report did not preclude the PCPO from requesting an investigation by the Attorney General or commencing a private prosecution (understanding that the CEO's consent would be required under s. 53(1) of the EFA). Moreover, registration of the WFC as a third party did not preclude the application of the anti-avoidance mechanisms in s. 22 or 38 of the EFA.

[Emphasis added]

[59] Again, the statutory scheme at issue in that case is fundamentally different from the complaints procedure in the PSA. The same reasoning simply does not apply to the case now [page349] before the court. I note, in particular, the complete absence of any duty on the CEO to receive or investigate complaints and the absence of any statutory criteria as to whether to report a matter to the Attorney General. Also, no rights of the Progressive Party were affected as they did not need the CEO to refer the matter to the Attorney General; they could do so themselves, either by requesting the AG to investigate or by filing a private prosecution. Ms. Endicott is in a very different position.

[60] All of the above cases were considered by the motion judge. Although she did not review them in detail in her oral reasons, she found all of them to be "distinguishable on the basis of a different statutory scheme or the person seeking the remedy was not affected by the decision". I find her analysis on this point to be correct.

[61] There is a line of cases that I find to be more on point relating to a prior version of the Ontario Human Rights Code[^26] (the "Code"). The version I will refer to was in force between November 26, 2002 and March 8, 2005, but the essential content and structure of the relevant provisions, ss. 32, 33 and 34, were in force for many years before that. That structure and content is strikingly similar to ss. 59, 60 and 61 of the PSA. The Code first provided (in s. 32) that any person "may" file a complaint of discrimination with the Ontario Human Rights Commission ("Commission"). Then, it stated (in s. 33) that "subject to s. 34", the Commission shall investigate the complaint. Section 34 gave the Commission a discretion to "not deal with" a complaint in certain specified circumstances, which included where there was no jurisdiction; the complaint was made more than six months after the event; the complaint was frivolous, vexatious or made in bad faith; and the complaint was better dealt with under another Act. Thus, under the Code there was permissive language entitling a person to file a complaint. Then there was mandatory language that stipulated there would be an investigation, unless the Commission decided to "not deal with" the complaint on the basis of listed factors set out in s. 34. Under the PSA, there is permissive language entitling a person to file a complaint (s. 58). Then there is mandatory language requiring the IPRD to retain or refer a complaint, which would then make an investigation mandatory (ss. 59(2) and 61). This requirement applies unless the IPRD decides to "not deal with" the complaint on the basis of listed factors set out in s. 60. Even the listed factors are virtually the same as those in s. 34 of the Code, except [page350] that the IPRD has an additional option to not deal with the complaint on public interest grounds.

[62] The courts have consistently treated a decision by the Commission to not deal with a complaint under s. 34 as a statutory power of decision, although I am not aware of any case where the issue was addressed specifically in terms of whether a record of proceedings was required to be filed under s. 10 of the JRPA.

[63] The Court of Appeal addressed the importance of a full record before the court hearing a judicial review application in Payne v. Ontario (Human Rights Commission).[^27] At issue was a decision by the Commission not to refer a matter to a board of inquiry based on its conclusion, after an investigation, that the complaint was not substantiated. The complainant sought judicial review and then sought to examine a witness under rule 39.03 in support of the judicial review application, that witness being a former commissioner who had been present at the meeting when the decision was made. In the course of dealing with that issue, the Court of Appeal considered the nature of the Commission's decision-making powers and the information that an applicant is entitled to in order to have an effective right of judicial review. Sharpe J.A. (writing for the majority) defined the issue before the court (at para. 129) as being "whether the appellant is entitled to full disclosure and production of all facts, arguments and considerations that were presented to the Commission when it considered her complaints". In the result, the court held that the appellant was entitled to a record that contained all of that information. In dealing with the record for judicial review, Sharpe J.A. held at paras. 160-61:

The content of the court record for an application for judicial review is defined by the Judicial Review Procedure Act, R.S.O. 1990, c. J-1 and by the Rules of Civil Procedure. The process begins with the notice of application: Rule 68.01(1). Upon being served with the notice of application for judicial review, the decision-maker is required by s. 10 of the Judicial Review Procedure Act, to file with the Divisional Court "the record of the proceedings in which the decision was made." The "record" is not defined by the Act.

An applicant for judicial review has the right to have a full and accurate record of what went on before the tribunal put before the court. This is an aspect of the superior court's inherent powers of judicial review. A superior court may insist upon the production of an adequate record of the proceedings before the tribunal being reviewed. As stated by Denning L.J. in [page351] R. v. Medical Appeal Tribunal ex p. Gilmore, [1957] 1 Q.B. 574 (Eng. C.A.) at 583: "The court has always had power to order an inferior tribunal to complete the record . . . [A] tribunal could defeat a writ of certiorari unless the courts could order them to complete or correct an imperfect record. So the courts have the power to give such an order." See also R. v. Northumberland Compensation Appeal Tribunal, ex p. Shaw, [1952] K.B. 338 (Eng. C.A.) at 352-4; Canadian Workers Union v. Frankel Structural Steel Ltd. (1976), 1976 829 (ON SC), 12 O.R. (2d) 560 (Div. Ct.) at 577 per Reid J.; F.G. Spencer Ltd. v. Prince Edward Island (Labour Relations Board), (1970), 1970 960 (PE SCAD), 16 D.L.R. (3d) 670 (P.E.I.S.C.); Battaglia v. British Columbia (Workmen's Compensation Board) (1960), 1960 334 (BC SC), 22 D.L.R. (2d) 446 (B.C.S.C.). A statutory body subject to judicial review cannot immunize itself or its process by arriving at decisions on considerations that are not revealed by the record it files with the court.

(Emphasis added)

[64] Two distinctions must immediately be made:

(1) A complainant before the Commission may be said to have more at stake than a complainant before the IPRD in the sense that human rights are regarded to be quasi-constitutional in status and the complainant can recover damages and other remedies for their breach.

(2) Although the Court of Appeal held in Payne that a JRPA s. 10 record of proceedings was required, it did so without directly considering whether the decision before it was a statutory power of decision or merely a statutory power.

[65] That said, I consider the general principles established in Payne to be applicable. The Court of Appeal clearly recognized that there was no definition of a record of proceedings that applied to this situation. There is abundant and consistent case law that a decision of the Commission under either s. 34 (deciding to "not deal with" a complaint) or s. 36 (deciding to refer the complaint to a board of inquiry) of the Code is not a decision to which the SPPA applies and does not require a full hearing. Nevertheless, the Court of Appeal established in Payne that an applicant for judicial review is entitled to a full record of proceedings containing all material that was before the Commission when it made its decision. While not explicitly defining the s. 34 and s. 36 powers as "statutory powers of decision", I consider that conclusion to be implicit in the reasoning of the court.

[66] In Pritchard v. Ontario (Human Rights Commission),[^28] an employee of Sears Canada had filed a complaint with the Commission alleging termination of employment based on her earlier [page352] complaints of sexual harassment and sex discrimination. The Commission decided not to deal with the complaint pursuant to s. 34(1)(b) on the grounds that it considered the complaint to have been made in bad faith. Ms. Pritchard filed an application for judicial review of that decision. She then brought a motion before a single judge of the Divisional Court, seeking an order that the Commission provide all of the information that was before it when it made its decision not to deal with the complaint. MacFarland J. granted the motion, directing the Commission to produce all information that was before the Commission when it made its decision, including a legal opinion from Commission counsel for which privilege had been claimed. In reaching that conclusion, MacFarland J., as she then was, relied extensively on the Court of Appeal's decision in Payne, which she held to be applicable even though it dealt with a different section of the Code. She concluded (at para. 46) in relation to the general right of production and before dealing with the legal opinion:

As I read Payne and apply it to the request here made, the applicant, Ms. Pritchard, is entitled as of right to the information she seeks. The issue of fairness in the process is clearly raised. She is entitled to have the entire and complete record of all information, oral or written, that was placed before the Commissioners who made the decision to terminate her human rights complaint. To suggest she is entitled to anything less is to emasculate significantly if not entirely the Judicial Review process.

[67] There was an appeal to the Court of Appeal[^29] from the decision of MacFarland J., but only on the issue of whether the legal opinion was required to be part of the record. The Court of Appeal overruled the motion judge on this point, holding that the legal opinion was protected by solicitor and client privilege. However, in dealing with that issue, the court did refer to s. 10 of the JRPA, recognizing that it applied, but holding that its mandatory language did not overrule solicitor and client privilege. The court held (at paras. 38-39):

As indicated above, counsel for Ms. Pritchard relied upon s. 10 of the Judicial Review Procedure Act, which provides:

When notice of an application for judicial review of a decision made in the exercise or purported exercise of a statutory power of decision has been served on the person making the decision, such person shall forthwith file in the Court for use on the application the record of the proceedings in which the decision was made. [page353]

Counsel submitted that the language of s. 10 is mandatory and therefore there can be no expectation of confidentiality for any aspect of the record. From this she reasoned that the doctrine of solicitor-client privilege is not available in respect of any part of the record of the proceedings before the Commission including a legal opinion. I disagree.

If the Legislature had intended to abrogate the right of a party to a judicial review application to claim the protection of solicitor-client privilege for a legal opinion, it would have done so in clear and unequivocal terms. There is nothing in s. 10 of the Judicial Review Procedure Act which gives any indication that the Legislature intended to abrogate solicitor-client privilege.

[68] The Supreme Court of Canada upheld the decision of the Ontario Court of Appeal.[^30] Again, the issue of s. 10 of the JRPA was raised, and the Supreme Court of Canada appeared to accept that it applied, but that it did not negate solicitor and client privilege attaching to a legal opinion that was before the Commission. The court held (at paras. 33-35):

Legislation purporting to limit or deny solicitor-client privilege will be interpreted restrictively: see Lavallee, supra, at para. 18. Solicitor-client privilege cannot be abrogated by inference. While administrative boards have the delegated authority to determine their own procedure, the exercise of that authority must be in accordance with natural justice and the common law.

Where the legislature has mandated that the record must be provided in whole to the parties in respect of a proceeding within its legislative competence and it specifies that the "whole of the record" includes opinions provided to the administrative board, then privilege will not arise as there is no expectation of confidentiality. Beyond that, whether solicitor-client privilege can be violated by the express intention of the legislature is a controversial matter that does not arise in this appeal.

Section 10 of the Judicial Review Procedure Act, in any event, does not clearly or unequivocally express an intention to abrogate solicitor-client privilege, nor does it stipulate that the "record" includes legal opinions. As such, "record of the proceedings" should not be read to include privileged communications from Commission counsel to the Commission.

[69] Again, in my view, the necessary implication from this decision is that the fact that a decision was not made after a hearing to which the SPPA applies, does not mean that s. 10 of the JRPA does not apply. Further, it is implicit from this decision that a decision in the nature of that made by the Commission in this case (i.e., dismissing a complaint without investigation based on defined statutory criteria) is a statutory power of decision for which a record of proceedings is mandated. Given the substantial similarities between the Commission's powers of [page354] decision under s. 34 of the Code and the IPRD under s. 60 of the PSA, I find considerable support for the proposition that the IPRD's decision in this case is one to which s. 10 of the JRPA applies.

[70] I have also considered decisions of the Divisional Court in two cases involving the same complainant before the Ontario Human Rights Commission, but with two separate complaints against different respondents: Coote v. Assante Corp.[^31] and Coote v. Zellers.[^32] In each case, Mr. Coote had filed a human rights complaint and in each the Commission had decided under s. 36 of the Code that a board of inquiry was not warranted. Mr. Coote brought applications for judicial review, not only against the Commission, but also against individual commissioners, some staff members of the Commission involved in the investigation of the complaint and a number of government officials. In each case, a motion was brought, returnable before a single judge of the Divisional Court, seeking to dismiss the application as against the respondents other than the Commission. In the motion brought in Coote v. Assante Corp., Lane J. struck out the claim against the individuals on the basis that they were not exercising a statutory power of decision, stating (at paras. 23-26) that although s. 36 vested a statutory power of decision in the Commission, the employees and individual commissioners had no such power. Exactly the same issue arose in Coote v. Zellers, and in that case Himel J., applying the same reasoning as Lane J., also struck the application as against the individuals.

[71] These decisions are of some persuasive value, although I note that there was no issue raised in either case as to whether the Commission itself was exercising a statutory power of decision, a point which seemed to have been accepted not only by the court but by the Commission itself.

[72] Finally, I have considered the decision of the Divisional Court in Kipiniak v. Ontario Judicial Council.[^33] Mr. Kipiniak was a party in a number of Small Claims Court proceedings that had been dealt with by the same Small Claims Court judge. On September 29, 2010, he filed a complaint against that judge with the Ontario Judicial Council ("OJC"). There was considerable delay by the OJC in dealing with the complaint. On May 3, 2012, [page355] having received no response to his complaint notwithstanding two letters to the chief justice complaining about the delay, Mr. Kipiniak started a judicial review seeking an order compelling the OJC to issue a decision. Three days after the judicial review application was filed, the OJC issued its decision. The OJC decided to refer the matter to the chief justice with a condition that the judge attend appropriate judicial education and further determined that in light of the apology from the judge no further action was required. When the judicial review application came on for a hearing before the Divisional Court, one of the issues raised by the OJC was that the OJC's decision was not a statutory power of decision, relying on PC Ontario Fund v. Essensa.[^34]

[73] For purposes of comparison, it is useful to consider the structure and language of the powers of the OJC as provided in the Courts of Justice Act ("CJA").[^35]

Under s. 51.3 of the CJA, any person "may make a complaint" to the OJC alleging misconduct. This permissive language is similar to s. 58 of the PSA.

Section 51.4(1) of the CJA then provides that the complaint "shall be reviewed by a subcommittee" of the OJC, which is a provision equivalent to s. 59(1) of the PSA.

Section 51.4(7) of the CJA stipulates that the SPPA does not apply to the activities of the subcommittee. There is no specific provision to this effect in the PSA, but it is accepted that the SPPA does not apply to the activities of the IPRD.

Section 51.4(4) provides: "If the complaint is not dismissed under subsection (3), the subcommittee shall conduct such investigations as it considers appropriate." This is very similar to the language of s. 59(2) and s. 61 of the PSA.

Finally, s. 51.4(3) of the CJA states that the subcommittee "shall dismiss" the complaint without investigation if the subcommittee is of the opinion that it lacks jurisdiction or the complaint is frivolous or an abuse of process. This is similar to the IPRD power under s. 60 of the PSA.

[74] The OJC subcommittee has many options for disposition, one of which is to refer the matter to the full OJC with or without [page356] a recommendation for a hearing, and another of which is merely to refer the matter to the chief justice. Although it is not entirely clear from the Divisional Court decision what the precise OJC route was, it would appear that the subcommittee referred the matter to a review panel and the review panel then referred it to the chief justice.

[75] The Divisional Court in Kipiniak held that this was a statutory power of decision. In coming to that conclusion, the court reviewed the definition of "statutory power of decision" under the JRPA. The court then considered the argument advanced by the OJC that there had been no statutory power of decision exercised because no rights had been affected. The court rejected that argument, distinguishing Essensa on the basis of the difference between the two legislative regimes, and in particular on the fact that the OJC has a statutory duty to investigate within a specific regime for handling complaints. Lax J. held (at para. 16):

As we have said, the respondent's jurisdiction argument is largely based on this court's decision in Essensa. In that case, the applicants were the PC Ontario Fund and the Progressive Conservative Party of Ontario (PCPO). They challenged what they said were decisions of Greg Essensa who was the Chief Electoral Officer of Ontario. His decisions were made in response to a complaint made by the PCPO in relation to suspected contraventions of the Election Finances Act. The court's reasons address the fact that no rights or interests of the PCPO were engaged, but this was because the PCPO had no right to have an investigation conducted. The decision turns on the fact that the Chief Electoral Officer has no statutory duty to receive or to investigate complaints under the Election Finances Act. The manner in which he dealt with a complaint was a matter for his discretion. His disposition of the complaint did not therefore affect any of the PCPO's rights, interests, property or privileges because his determinations affected no rights. It was on this basis that the court found that the remedies of mandamus and certiorari under s.2 (1)1 of the JRPA could not be engaged. The case is clearly distinguishable as the C.J.C. [sic] is under a statutory duty to investigate and there is a specific regime in place for handling complaints.

(Emphasis added)

[76] In my view, the same principles apply in this case, and for the same reasons.

Jurisdiction of the IPRD

[77] As I noted at the outset, the two decisions made by the IPRD are expressed in terms of jurisdiction. They state that "the Director has not identified any breach of the Police Services Act or its Code of Conduct" and that the IPRD therefore had "no jurisdiction to deal with this matter".

[78] Although this motion was argued entirely as if the decision of the IPRD was made under s. 60, in light of the language [page357] used in the IPRD's letters of dismissal, I consider it prudent to address the issue of jurisdiction, but only as it relates to the issue of statutory power of decision. There must, of course, be some power to refuse to deal with a complaint that is outside the jurisdiction of the IPRD. The IPRD should not, and indeed cannot, embark on an investigation that is wholly outside its legislated mandate.

[79] In the course of argument, and in her factum, counsel for the IPRD referred to the IPRD as having an "implicit" power under s. 60 to screen out complaints "if there is a basis to believe that misconduct may have been committed". I do not wish to wade into matters that may be the subject of the judicial review application itself, and therefore express no opinion as to whether there is a power under s. 60 to screen out complaints of misconduct on the basis that there is no basis to believe they have merit. I also make no comment on whether the concern, as stated by the IPRD representative, is truly one that relates to jurisdiction. For present purposes, if the power is founded on s. 60, then my analysis of that section and why such a decision is a statutory power of decision stands.

[80] However, that implicit power to reject a complaint for want of jurisdiction may not be under s. 60, but rather under s. 59(1), which states:

59(1) The Independent Police Review Director shall review every complaint made to him or her by a member of the public under this Part, and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer.

(Emphasis added)

[81] I have therefore considered whether my conclusion on the statutory power of decision issue would be different if the IPRD was exercising a discretion under s. 59(1), as opposed to s. 60. In my opinion, it makes no difference. A decision to not deal with a complaint because it is outside the scope of the legislation is essentially a finding that the complainant has no right to file a complaint under the PSA in the circumstances set out in the complaint. Such a decision is clearly a decision as to that person's rights; it finally determines her right to file a complaint. This would also meet the definition of a "statutory power of decision" under s. 10 of the JRPA.

E. Conclusion and Order

[82] In my opinion, both a literal, plain and ordinary interpretation of the legislation involved here and an interpretation in keeping with its purpose and intent, lead to the conclusion that the IPRD's decision in this case was pursuant to a statutory [page358] power of decision. The cases relied upon by the IPRD for the contrary position are distinguishable and do not apply. Other cases dealing with decisions of the Commission under the Ontario Human Rights Code and the Ontario Judicial Council under the Courts of Justice Act, although not directly applicable, are persuasive authority also pointing to the conclusion that this is a statutory power of decision.

[83] In this case, the IPRD concedes that its decision is subject to judicial review by this court. What it objects to is the obligation to produce a record of the proceedings before it. In other words, it objects to the requirement that it place before the court, for the benefit of the complainant and the court itself, all of the material that was before it at the time it made its decision. I find considerable irony in such a position being taken by a body that was created for the purpose of enhancing fairness and transparency in the handling of civilian complaints against police officers. I am reminded of the words of MacFarland J. in Pritchard[^36] in relation to the Human Rights Commission's position on the production of a full record of proceedings, at para. 51:

I do have some concern about the adversarial stance that the Commission has taken in this matter. As the guardian of human rights in this province, I find it troubling that the Commission would adopt such a position in relation to a person who was only attempting to enforce her rights.

[84] In the result, the appeal is dismissed. An order will issue requiring the IPRD to file a record of proceedings within 30 days, such record to include everything that was before the IPRD, whether written, oral or electronic, at the time it made its decision.

[85] The parties are agreed that there shall be no order as to costs.

Application dismissed.

Notes

[^1]: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 21(5); Deeb v. Investment Industry Regulatory Organization of Canada, [2012] O.J. No. 2873, 2012 ONSC 3443 (Div. Ct.), at para. 2.

[^2]: The Honourable Patrick LeSage, Q.C., Report on the Police Complaints System in Ontario (Toronto: Ontario Ministry of the Attorney General, 2005).

[^3]: Ibid., at p. 3.

[^4]: Ontario, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 38th Parl., 2nd Sess. (January 30, 2007), at JP 1022 and 1026, and (February 1, 2007), at JP 1107-1108.

[^5]: Police Services Act, R.S.O. 1990, c. P.15, as amended by the Good Government Act, 2009, S.O. 2009, c. 33, Sch. 9, s. 10.

[^6]: PSA, s. 66(3).

[^7]: PSA, s. 83(1) and (3).

[^8]: PSA, s. 66(4).

[^9]: PSA, s. 66(2).

[^10]: PSA, s. 71(1).

[^11]: PSA, s. 60(2).

[^12]: PSA, s. 60(5) and (6).

[^13]: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

[^14]: SPPA, s. 3(2)(e), (d) and (f).

[^15]: R. v. Lavigne, [2006] 1 S.C.R. 392, [2006] S.C.J. No. 10, 2006 SCC 10, at para. 7.

[^16]: Ontario, Standing Committee on Justice Policy, Official Report of Debates (Hansard), 38th Parl., 2nd Sess. (January 30, 2007), at JP 1026.

[^17]: R. v. Zeolkowski, 1989 72 (SCC), [1989] 1 S.C.R. 1378, [1989] S.C.J. No. 50, at para. 19; Peach Hill Management Ltd v. Canada, 2000 15319 (FCA), [2000] F.C.J. No. 894, 257 N.R. 193 (C.A.), at para. 12.

[^18]: Dolan v. Ontario (Civilian Commission on Police Services), [2011] O.J. No. 1028, 2011 ONSC 1376 (Div. Ct.).

[^19]: Ibid., at paras. 94-97.

[^20]: Jacko v. Ontario (Chief Coroner), 2008 69579 (ON SCDC), [2008] O.J. No. 5376, 306 D.L.R. (4th) 126 (Div. Ct.).

[^21]: Coroner's Act, R.S.O. 1990, c. C.37, s. 20.

[^22]: Ibid, s. 41(1).

[^23]: Batacharya v. College of Midwives of Ontario, [2012] O.J. No. 697, 2012 ONSC 1072 (Div. Ct.).

[^24]: Barrington v. Institute of Chartered Accountants, 2004 34623 (ON SCDC), [2004] O.J. No. 4351, 191 O.A.C. 230 (Div. Ct.).

[^25]: PC Ontario Fund v. Essensa, [2011] O.J. No. 2366, 2011 ONSC 2641 (Div. Ct.), affd [2012] O.J. No. 2908, 2012 ONCA 453.

[^26]: Human Rights Code, R.S.O. 1990, c. H.19.

[^27]: Payne v. Ontario (Human Rights Commission), 2000 5731 (ON CA), [2000] O.J. No. 2987, 192 D.L.R. (4th) 315, 136 O.A.C. 357, 25 Admin. L.R. 255, 38 C.H.R.R. D/367 (C.A.).

[^28]: Pritchard v. Ontario (Human Rights Commission), [2001] O.J. No. 2788, 148 O.A.C. 260 (Div. Ct.).

[^29]: Pritchard v. Ontario (Human Rights Commission) (2003), 2003 8701 (ON CA), 63 O.R. (3d) 97, [2003] O.J. No. 215 (C.A.).

[^30]: Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, [2004] S.C.J. No. 16, 2004 SCC 31.

[^31]: Coote v. Assante Corp., [2007] O.J. No. 1902, 2007 65613 (Div. Ct.).

[^32]: Coote v. Zellers, [2007] O.J. No. 4410, 2007 48985 (Div. Ct.).

[^33]: Kipiniak v. The Ontario Judicial Council, [2012] O.J. No. 5299, 2012 ONSC 5866 (Div. Ct.).

[^34]: Supra, note 25.

[^35]: Courts of Justice Act, R.S.O. 1990, c. C.43.

[^36]: Supra, note 28.

End of Document