Figueiras v. (York) Police Services Board, 2013 ONSC 7419
CITATION: Figueiras v. (York) Police Services Board, 2013 ONSC 7419
DIVISIONAL COURT FILE NO.: 568/12
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Then R.S.J., Sachs and J. Mackinnon JJ.
BETWEEN:
PAUL FIGUEIRAS
Applicant
– and –
REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD and MARK CHARLEBOIS and the OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondents
COUNSEL:
Shaun Laubman & Shannon Beddoe, for the Applicant
Mark Sandler, for the Respondent, the Office of the Independent Police Review Director (OIPRD)
Kevin A. McGivney & Doug Smith, for the Respondent, the Regional Municipality of York Police Services Board
Craig Brannagan & Andrew McKay, for the Respondent, Mark Charlebois
HEARD at Toronto: November 13, 2013
The Court
Introduction
[1] This application arises from the events of the G20 in Toronto in June 2010. The Applicant made a complaint to the Office of the Independent Police Review Director (the “OIPRD”) concerning the conduct of an officer who was on duty during the G20, Detective Mark Charlebois.
[2] The OIPRD decided to retain the complaint for investigation and then referred it to the Chief of Police of the York Regional Police Service (the “YRP”) for a hearing. The Chief of Police applied to the Regional Municipality of York Police Services Board (the “Board”) to request that the Board serve a notice of hearing on the Detective in respect of the complaint. He did so because the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”) provides that if six months have elapsed since the time the complaint was retained by the OIPRD, which occurred in this case, the Board has discretion to determine whether or not it is “of the opinion” that it is “reasonable, under the circumstances” to serve a notice of hearing (and, by extension, to hold a hearing) in respect of the complaint.
[3] The Act provides that if a hearing is held, both the officer and the complainant have full party status. Before deciding whether or not to serve a notice of hearing in this case, the Board contacted the OIRPD and the Detective for submissions. It did not contact the Applicant. Without reasons, the Board ruled that it would not serve a notice of hearing on the Detective. As a result, the Applicant’s right to have his complaint determined was terminated.
[4] On this application, the Applicant submits that his rights to procedural fairness were breached when he was not given the opportunity to make submissions to the Board and when the Board gave no reasons to support its decision not to serve a notice of hearing on the Detective. He also argues that the Board’s decision not to issue a notice of hearing was unreasonable. The OIPRD supports the Applicant’s submission that the Board had an obligation to notify and obtain submissions from the Applicant and that the Board’s decision not to issue a notice of hearing was unreasonable. Both parties maintain that the Board’s decision must be quashed and that this court should issue an order directing the Chief of Police to serve a notice of hearing on the Detective. In the alternative, the matter should be remitted to the Board with clear directions from this court.
[5] The Respondent Board and Detective Charlebois (referred to collectively as the “Respondents”) argue that the Board had no obligation to notify and seek submissions from the Applicant or to issue reasons for its decision. Further, they argue that there is no basis to overturn the Board’s decision. Finally, they submit that mandamus is not an appropriate remedy and that, in any event, this application for judicial review should be dismissed for delay since it was commenced just over twelve months following the Board’s decision.
[6] For the reasons that follow, we would allow the application, quash the Board’s decision, and remit it to the Board for a new hearing in accordance with the reasons of this court.
Factual Background
The Incident with Detective Charlebois
[7] On June 27, 2010, the second day of the G20 summit in Toronto, the Applicant and some friends were stopped by a group of police officers, including Detective Charlebois, as they were approaching the intersection of University Avenue and King Street West.
[8] The officers demanded that the Applicant and his friends turn over their bags to be searched and told them that they would not be permitted to proceed unless they complied.
[9] The Applicant’s friends consented to the search; the Applicant did not. Detective Charlebois told the Applicant that he must submit to a search or leave. Detective Charlebois pulled the Applicant close to him, and with their faces close together, told the Applicant that he did not have a choice in the matter. He then pushed the Applicant away and advised the Applicant to go back the way he came.
[10] The Applicant asked Detective Charlebois and the other officers why he was being denied his right to stay in the area without being searched and they responded, “we are in G20 Land” and “there is no civil rights here in this area.” The officers continued to refuse to allow the Applicant to proceed or to stay in the area. As a result, the Applicant left.
[11] The incident was recorded and posted on YouTube.
The OIPRD
[12] The OIPRD was established on October 19, 2009, approximately eight months before the G20 summit, in response to a report prepared by the Honourable Patrick LeSage that recommended a more transparent and accessible complaints system: see Honourable Patrick J. LeSage, Q.C., Report on The Police Complaints System in Ontario (Toronto, 2005) (“LeSage Report”), at pp. 3, 37-38; 60-63; 66.
[13] The OIPRD is an arms-length body of the Ontario Ministry of the Attorney General that administers the public complaints system against police officers in Ontario. It is staffed by civilians; the Director of the OIPRD (the “Director”) makes decisions independent of government, the police, and the public; and the OIPRD’s powers, duties, and functions are governed by the Act.
The Applicant’s Complaint to the OIPRD
[14] The OIPRD received the Applicant’s complaint on December 2, 2010. On December 9, 2010, the OIPRD decided to retain and investigate the complaint, pursuant to s. 61(5)(c) of the Act, instead of referring it to a police service for investigation.
[15] On October 3, 2011 the Director wrote to the Chief of Police enclosing a copy of its investigative report into the complaint and informing the Chief of Police that there were reasonable grounds to believe that Detective Charlebois had committed misconduct and, as such, the Chief was to hold a discipline hearing, pursuant to s. 68(5) of the Act. The Director also advised the Chief that the Applicant had been provided with a copy of its investigative report and directed the Chief to provide a copy of the report and letter to Detective Charlebois.
The Delay Application
[16] On October 13, 2011, the Director wrote to the Chief of Police requesting that the Chief apply to the Board “for a determination that it is reasonable, under the circumstances, to serve the notice of hearing to Respondent officer, Detective Charlebois, after six months from the date that the complaint was retained by the OIPRD under clause 61(5)(c).”
[17] Section 83(17) of the Act provides as follows:
If six months have elapsed since the day [the complaint was retained by the Director], no notice of hearing shall be served unless the board … is of the opinion that it was reasonable, under the circumstances, to delay serving the notice of hearing.
[18] On October 17, 2011, the Chief of Police sent a letter to Detective Charlebois advising him that he would be seeking the permission of the Board to serve a notice of hearing outside the six-month period (the “Delay Application”) and that he had an opportunity to respond to the Delay Application in writing. Detective Charlebois was advised to provide his submissions to the Board by October 25, 2011.
[19] On October 25, 2011, the Board received written submissions on behalf of Detective Charlebois from his counsel. On October 26, 2011, the Chief provided a report to the Board recommending that the Board determine that the delay in serving the notice of hearing in respect of the Applicant’s complaint was reasonable. On the same day, the Board held a meeting and determined that it did not have enough information to explain why the OIPRD had taken more than six months to complete its investigation.
[20] On October 27, 2011, the Board wrote to the Director requesting a further explanation for the delay and set out specific questions to be addressed. One of those questions required the Director to address the issues raised by Detective Charlebois’ counsel in his submissions to the Board. A copy of this letter was sent to Detective Charlebois’ counsel and to the Chief.
[21] On November 2, 2011, the Director wrote to the Chief and sought, pursuant to s. 61(7) of the Act, to direct the Chief to provide notice to the Applicant of the Delay Application and the opportunity to make written submissions to the Board.
[22] On November 10, 2011, the Director provided further submissions to the Board explaining why the investigation had taken more than six months to complete. In those submissions, the Director explained that he had decided to retain the majority of the G20 complaints because he wanted them investigated in a consistent manner. He also explained that the Applicant’s complaint was categorized as one of 57 “stop and search” complaints arising out of the G20, which were all assigned to one team of investigators. During the team’s investigation, it became clear that a number of officers were seeking to justify their actions on the basis of specific training and powers they understood they had because of the unique circumstances of the G20. In order to determine whether these justifications had merit, it was necessary to understand the training that had been provided to officers involved in the G20. The Director detailed the difficulties he had in obtaining this information. He also emphasized the importance of understanding whether any specific misconduct alleged against an officer involved in the policing of the G20 was due to errors in the training and information that was provided to those officers.
[23] The Director provided a copy of his submissions to the Applicant and to counsel for Detective Charlebois. On November 11, 2011, the Board wrote to counsel for Detective Charlebois advising him that the Board would be meeting on November 23, 2011 and asked him for any further submissions by November 18, 2011. On November 18, 2011, Detective Charlebois’ counsel provided further written submissions to the Board.
[24] On November 23, 2011, the Board determined that notice of the Delay Application need not be provided to the Applicant and that it was not reasonable, under the circumstances, to extend the time for serving the notice of hearing on the Detective in respect of the Applicant’s complaint. On the same day, counsel to the Chief wrote to the Director to advise him of the Board’s decision. The Director provided a copy of this letter to the Applicant.
[25] On December 15, 2011, the Board wrote to counsel for Detective Charlebois and advised him of its decision.
Jurisdiction
[26] The Divisional Court’s jurisdiction flows from sections 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under those provisions, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in the following proceedings: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition, certiorari; or (2) proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise or refusal to exercise a statutory power.
Standard of Review
[27] There is no need to assess the appropriate standard of review when considering whether there has been a breach of natural justice and procedural fairness: see Forestall v. Toronto Police Services Board (2007), 2007 31785 (ON SCDC), 72 Admin. L.R. (4th) 299 (Div. Ct.), at para. 38.
[28] With respect to the merits of the Board’s decision, the parties agree that the standard of review is reasonableness.
Analysis
Should the Application be Dismissed for Delay?
[29] This application was commenced on December 7, 2012, just over a year from when the Board denied the Delay Application. While there is no time-limit prescribed by the Judicial Review Procedure Act, this court has held there is an obligation to commence and perfect judicial review applications in an expeditious manner: see Balanyk v. Greater Niagara General Hospital, [2002] O.J. No. 1208 (Div. Ct.), at para. 3. Applications brought later than six months after the impugned decision have been dismissed. On the other hand, this court has refused to dismiss applications brought considerably more than twelve months after a decision is sought to be reviewed. In deciding whether to dismiss for delay, the court considers the issue of prejudice and whether there is a reasonable explanation for the delay: see Ransom v. Ontario, 2010 ONSC 3156 (Div. Ct.), at para. 5.
[30] In this case, there is no evidence that the actual hearing of the complaint will be prejudiced by the fact of the delay. In particular, there is a video of the events giving rise to the complaint.
[31] The officer in question argues that the delay has caused him prejudice. Prejudice to the officer, if any, can best be assessed at the hearing of the complaint on a proper evidentiary record : see Ackerman, at paras. 22-23; see also Martinez v. Toronto Police Services Board, 2012 ONSC 2893 (Div. Ct.), at para. 9.
[32] The Applicant’s explanation for the delay is that when the OIPRD told him the Board had denied the Delay Application, the OIPRD also told him there was no appeal from that decision. He relied on that advice and concluded that his complaint was at an end. Six months later, he retained a lawyer to commence an application for declaratory relief related to the events in question. This declaratory application would not and could not result in any disciplinary consequences for the officer. It was not until the summer of 2012, when the Applicant was contacted by the Canadian Civil Liberties Association and put in touch with a lawyer, that the Applicant became aware of his right to seek judicial review of the decision. The application was commenced approximately six months later.
[33] We agree with the Respondents that ignorance of the law is no excuse for delay. However, in this case, the Applicant’s failure to commence an application within the first six months after the impugned decision (until he hired a lawyer to commence his application for declaratory relief) can be explained by his reliance on the advice he received from the OIPRD. While the advice was accurate, it did lead him to believe there was no way he could challenge the Board’s decision to not allow his complaint to proceed to a hearing.
[34] Balancing the length of the delay, the explanation for that delay, and the issue of prejudice, and taking into account the public interest in having this complaint dealt with in a transparent and justifiable manner, it is our view that this judicial review application should not be dismissed on the grounds of delay.
Did the Board breach the rules of natural justice and the duty of procedural fairness when it failed to give the Applicant notice of the Delay Application and the opportunity to make submissions on the Delay Application?
[35] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28, the Supreme Court of Canada emphasized that the duty of fairness is variable and depends on a number of factors, including the following:
• The nature of the decision being made;
• The nature of the statutory scheme;
• The importance of the decision to the individual or individuals affected;
• The legitimate expectations of the person challenging the decision; and,
• The deference to be accorded to the choices of procedure made by the agency itself.
The Nature of the Decision Being Made
[36] The Board’s decision to deny the Delay Application terminated the Applicant’s right to pursue his complaint. Thus, the decision, while administrative, was also of some substance.
[37] The Respondents submit that there was no reason for the Board to believe that the Applicant had any relevant submissions to make in respect of the Delay Application, since there was no suggestion he had contributed to the delay at issue.
[38] This submission ignores the fact that there was no suggestion Detective Charlebois had contributed to the delay at issue. Yet the Board was careful to make sure that Detective Charlebois had notice of the Delay Application and the opportunity to make submissions on the issues that he saw as being important to him, including his views as to the reasonableness of the explanation offered by the Director regarding the delay at issue.
[39] The argument also presupposes that the Applicant, both as the complainant and as a member of the public who was affected by the actions of officers during the G20, would have nothing to say about the legitimacy of the Director’s decision to treat the misconduct complaints arising out of the G20 on a systemic and consistent basis.
The Nature of the Statutory Scheme
[40] The Supreme Court, in Baker, described the relevance of the nature of the statutory scheme for determining the duty of fairness as follows, at para. 24:
The role of a particular decision within the statutory scheme and other surrounding indications in the statute help determine the content of the duty of fairness owed when a particular administrative decision is made. Greater procedural protections, for example, will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted.
[41] The Act does contemplate that disciplinary proceedings will generally be commenced within six months unless the Board decides that delay beyond this period was reasonable. The Act is also clear that the Board is free to establish its own rules and procedures in respect of these types of decisions. However, this freedom is limited by the underlying purpose of the Act, which was described by this court in Endicott v. Independent Police Review Director, 2013 ONSC 2046, 115 O.R. (3d) 328 (Div. Ct.), at para. 40, as “to enhance public confidence in policing by ensuring a more transparent and independent process for dealing with complaints against the police.”
[42] The Respondents submit that the Act contains no provision that requires the complainant to be given notice of the Delay Application or the right to make representations at that hearing. This is true. However, the Act also contains no requirement that notice or the opportunity to make submissions be given to the officer. To the extent that the Act explicitly deals with the procedural rights of complainants and officers, it treats both of them equally. If a hearing is held, both have full party status.
[43] In this case, the Board gave the Detective two opportunities to make submissions to the Board. In a statutory regime that has transparency and public accountability as its fundamental purpose and where, in the legislation, there is no distinction between the procedural rights afforded to the officer and the procedural rights afforded to the complainant, natural justice and procedural fairness require that the complainant be afforded the same opportunities as the officer. This is particularly the case when, as here, there is no right of appeal from a Board’s decision and that decision is determinative of a complainant’s right to pursue his or her complaint.
The Importance of the Decision to the Individual
[44] The Respondents submit that, unlike Detective Charlebois, the complainant had no direct personal interest in the outcome of the Delay Application other than a possible sense of “satisfaction” or a “sense of grievance.”
[45] Again, this submission minimizes one of the fundamental purposes of the complaints system: to ensure transparency and enhance public confidence in the process. Police officers have extraordinary powers to control the public. The public has an interest in ensuring that those powers are exercised in accordance with the law. It is an interest that extends beyond a personal “sense of grievance.” Public confidence in those who are responsible for the administration of justice, including police officers, is essential to the health of a free and democratic society.
[46] In Forestall, at para. 50, this court acknowledged the importance of a fair and transparent procedure in decisions that affect the pursuit of individual complaints against the police:
The Board’s decision does not determine the merits of disciplinary charges, but we agree that its decision is important to an individual since a determination that the delay was unreasonable will put an end to the disciplinary proceedings. Therefore, some degree of procedural fairness is required at this stage.
The Legitimate Expectations of the Complainant
[47] The existence of a legitimate expectation will affect the content of the duty of fairness owed to the individual affected by the decision. That is, if the person has a legitimate expectation that a certain procedure will be followed, this procedure will be required under the duty of fairness: see Baker, at para. 26.
[48] The amendments to the Act give complainants a greater right to participate in the public complaints process beyond making the initial complaint. In this case, based on the OIPRD’s investigative report and conclusions, the Applicant would have had a legitimate expectation that his complaint would be heard on its merits. Certainly, he would not have legitimately expected that his complaint would be dismissed at a hearing of which he had no notice and in which he was given no right to participate.
[49] The Respondents submit that any legitimate expectations that the Applicant had should be and were satisfied by the OIPRD. If the Applicant had any submissions to make, he could make them through the OIPRD, which had advised him there was going to be a Delay Application. Further, the Respondents argue that there is no evidence that the Applicant would have made any submissions to the Board if he had an opportunity to do so and there is no evidence from him as to what those submissions would have been.
[50] We reject the submission that it was the OIPRD’s responsibility to give the Applicant notice of the Delay Application and to incorporate any submissions the Applicant wished to make into its submissions to the Board. The OIPRD is a neutral agency and to retain its neutrality it cannot be seen as aligning itself in any way with either the complainant or the officer.
[51] We also reject the notion that to establish a breach of duty of procedural fairness, an Applicant is obligated to provide the court with evidence of what he or she would have done if that obligation had not been breached.
The Deference to be Accorded to the Procedures Chosen by the Board
[52] Section 37 of the Act provides that the Board “shall establish its own rules and procedures in performing its duties under this Act.” We accept that, given the discretion accorded to the Board by this section, the Board’s choice of procedures is entitled to some level of deference.
[53] The only evidence as to why the Board chose to follow the procedure it did in this case is in a letter sent by counsel to the Chief of Police to the OIPRD, dated November 23, 2011, which advised the OIPRD that the Board’s procedure was established “having regard to the Divisional Court’s ruling in Forestall.”
[54] In Forestall, at para. 53, the Divisional Court held that for applications, pursuant to s. 83(17) of the Act, “some degree of procedural fairness is required” and “must be respected including notice, appropriate disclosure and an opportunity to respond.” There is no principled reason to accord this degree of procedural fairness to the officer and not to the complainant.
Conclusion
[55] Taking into account all of the Baker factors, we find that the Board owed the Applicant a minimal amount of procedural fairness and the Board breached the rules of natural justice and the duty of procedural fairness when it failed to give the Applicant notice of and the opportunity to make submissions on the Delay Application.
Did the Director have the statutory authority to direct the Chief of Police to give the Applicant notice of and the opportunity to make submissions on the Delay Application?
[56] As already noted, on November 2, 2011, the OIPRD directed the Chief of Police to provide notice to the Applicant and an opportunity to make written submissions to the Board with respect to the Delay Application.
[57] While not essential to our determination of the issues in this application, we find that the Director did have the statutory authority to make this direction under both sections 61(7) and 72(1)(a) of the Act. In this regard, we reject the submission by the Respondents that the ability of the Director to make directions under these sections does not apply when a complaint is first retained by the Director and then referred to the Chief of Police. Neither the language of the legislation nor the policies behind the legislation support the limited interpretation of these sections urged upon us by the Respondents.
Did the Board breach the duty of procedural fairness when it failed to give reasons for its decision on the Delay Application?
[58] The Board gave no reasons for its decision to deny the Delay Application. Similarly, the Board gave no reasons for declining to give the Applicant notice of the application or to receive submissions from him.
[59] By letter, dated November 23, 2011, counsel to the Chief of Police advised the OIPRD that the Board had rejected the application by the Chief of Police to serve a notice of hearing on the Detective. The totality of the relevant paragraphs from the letter are reproduced below:
As you are aware, Detective Mark Charlebois was given notice of the Board’s application and an opportunity to respond, in writing. This was done in accordance with the procedure that had already been established by the Board and having regard to the Divisional Court’s ruling in Forestall. The Board’s procedure does not contemplate notice to the complainant.
Both the Chief’s request for direction concerning notice to the complainant and the original application under section 83(17) of the Act came before the Board today for their consideration. As a preliminary matter, the Board decided that it did not need to hear from the complainant and directed the Chief not to give the complainant notice of the application. With respect to the application proper, the Board has decided that it was not reasonable, under the circumstances, to delay serving the notice of hearing. As such, the Board has declined the Chief’s request for permission to serve a notice of hearing upon Detective Charlebois. In light of the Board’s decision in this matter, I must respectfully advise that Chief Jolliffe is unable to commence a disciplinary hearing against this officer.
[60] In Baker, at para. 39-40, the Supreme Court of Canada discusses the arguments that have been made for and against reasons in the administrative context. Reasons can foster better decision-making by ensuring that the decision-maker is forced to articulate and, therefore, think through the basis for the decision that he or she is making. Reasons provide transparency and are invaluable if a decision is being questioned, appealed, or considered on judicial review. Those affected by decisions are more likely to feel they have been heard and treated fairly if reasons are given for the decisions that affect their rights.
[61] There is a concern that insisting on written reasons could impose an inappropriate burden on administrative decision-makers. Reasons, it is argued, could lead to increased cost and delay and, in some cases, might induce a “lack of candour” on the part of the administrative officials concerned. In Baker, at para. 40, the court expressed the view that “these concerns can be accommodated by ensuring that any reasons requirement under the duty of fairness leaves sufficient flexibility to decision-makers by accepting various types of written explanations for the decision as sufficient.”
[62] The decision at issue is significant for the complainant since it terminated his right to pursue his complaint of mistreatment by the police; this was a complaint the OIPRD had determined was worthy of a hearing. It was given in the context of a statutory framework designed to increase the transparency of and public accountability for the way in which the conduct of the police is dealt with. It is also a decision that is subject to judicial review. All these factors dictate that procedural fairness would require that the Board provide some reasons for its decision to deny the Delay Application.
[63] The Respondents point to Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 12, 14-15, as standing for the principle that adequacy of reasons is not a stand-alone basis for quashing a decision and that a court must attempt to “supplement” reasons before “subverting” them. Further, in assessing the reasonableness of a decision, the court is entitled to look at the record that was before the tribunal.
[64] It is important to note that this is not a case where the reasons given were inadequate. There were no reasons.
[65] According to the Respondents, the record makes it clear why the Delay Application was denied; thus, there was no need for reasons. In making this submission, the Respondents point to the October 27, 2011 letter from the Board to the Director requesting further information. In that letter, the Board asked the Director for the following items:
• An explanation of why there was a gap in the investigation between February 7, 2011 and August 17, 2011 and why the YRP policies were not requested in a more timely manner;
• An explanation of what, if any, steps the OIPRD took to conclude this investigation within six months, including consideration of referring the investigation to YRP or any other policing agency; and,
• A response to the issues raised in Mr. McKay’s [counsel to Detective Charlebois] letter of October 25, 2011.
[66] In the Director’s first letter to the Chief of Police requesting that the Chief make the Delay Application to the Board, the Director provided a “brief chronology” of the investigation. This chronology revealed a gap between February 7, 2011, when the OIPRD interviewed Detective Charlebois, and August 17, 2011, when the OIPRD requested the YRP policies. In Mr. McKay’s first submissions to the Board, dated October 25, 2011, he made much of this “gap” and the fact that it took the OIPRD so long to request the YRP policies. Counsel was implying that if the OIPRD had made the request sooner, the investigation would have been completed sooner.
[67] The OIPRD provided an explanation of the alleged “gap.” The OIPRD made it clear that during this period, it was engaged in systemically dealing with and reviewing the “stop and search” complaints it retained from the G20. This required understanding the policies and training provided to officers who were policing the G20 because many officers sought to justify their actions on the unique authority they had during the G20. Obtaining this information took time. Further, the OIPRD made it clear in its reply that once it realized that it did not have the YRP policies, it requested them and they were provided promptly. This request was not what delayed its investigation.
[68] This court has no basis for knowing whether or not the Board accepted or rejected the OIPRD’s explanation for the “gap.” Thus, we cannot assess whether its decision on this issue was reasonable. Certainly, given the reliance by Detective Charlebois on the fact that he was operating in “G20 land” where there were apparently “no civil rights”, it seems reasonable that the OIPRD tried to understand whether the officer’s justification for his actions was the result of systemic misinformation and training provided to the officers before and during the G20. To do otherwise would have been unfair to the officer in question. Unfortunately, through no apparent fault of the OIPRD, it took some time for the OIPRD to collect the information it needed and analyze it accordingly.
[69] Also in Mr. McKay’s first submissions to the Board, dated October 25, 2011 on behalf of Detective Charlebois, he argued that if the OIPRD lacked the resources to conduct a systemic review of the G20 complaints, including the complaint against Detective Charlebois, the OIPRD should have referred the complaint to the YRP or another police service for investigation. The Board asked the Director why this had not been done in the October 27, 2011 letter.
[70] The Director replied by explaining why the OIPRD decided to conduct a systemic review of all the G20 complaints; complaints that had arisen in a unique and specific context. The Board’s decision to reject the Delay Application does not indicate whether it based its decision on the fact that it felt the OIPRD should have referred the complaint to another police service. If that was the basis for decision, there may well be reason to question its reasonableness, especially given the public interest in the complaints against the police generated by the G20 and the corresponding need to have those complaints investigated by a neutral agency.
[71] Mr. McKay’s letter of October 25, 2011 also asserted that the OIPRD “mismanaged” the G20 investigations and that if the OIPRD was under-staffed to conduct those investigations within the six-month period, it should have hired more people. The letter referred to the six-month period for conducting investigations as a “limitation period” and in that letter and his subsequent correspondence to the Board, Mr. McKay made forceful submissions concerning the prejudice Detective Charlebois had suffered and was continuing to suffer as a result of the delay.
[72] As a reviewing court, we cannot assess whether the Board rejected the Delay Application because of these submissions and, if it did, which of the submissions it considered persuasive. This is important because any reasonable assessment of these submissions would have required the Board to
• appreciate the extraordinary nature of the G20, the complaints it generated, and the fact that the OIPRD hired more people to deal with these complaints;
• reject the suggestion that s. 83(17) is a limitation period. As this court stated in Ackerman v. Ontario Provincial Police, 2010 ONSC 910, 11 Admin. L.R. (5th) 304 (Div. Ct.), at para. 21, “[i]t is well-established by previous decisions of this court that the presumptive six-month period for service of a Notice of Hearing under the Police Act is not a limitation period”; and,
• appreciate that the issue of prejudice to the officer as a result of delay is that such an issue that can best be determined in a hearing on the merits with an evidentiary record.
[73] The record before us, which includes the record before the Board, gives us no ability to assess whether the Board did or did not take these factors into account.
[74] For these reasons, we find that the Board’s failure to give reasons for rejecting the Delay Application breached its duty of procedural fairness.
Remedy
[75] In addition to an order quashing the decision of the Board, the Applicant seeks relief in the nature of mandamus, namely, an order declaring that the delay in serving the notice of hearing in respect of the complaint was reasonable, an order directing the Chief of Police to serve a notice of hearing in respect of the complaint, and to hold a hearing into the complaint.
[76] We accept that mandamus is not available when the impugned decision is discretionary and the decision-maker’s discretion has not been “spent”, i.e., the applicant has a vested right to the performance of the duty: see Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1994] 1 F.C. 742 (F.C.A.), at pp. 766-768, aff’d 1994 47 (SCC), [1994] 3 S.C.R. 1100.
Conclusion
[77] For these reasons, we order that the Board’s decision to deny the Delay Application be quashed and that the matter be remitted to the Board for reconsideration in accordance with these reasons.
[78] With respect to the issue of costs, none of the parties requested costs, except the Applicant’s solicitor requested an order that they be reimbursed for their disbursements. In view of the fact that the Applicant’s Notice of Application made no request for costs, we decline to make any order as to costs.
THEN R.S.J.
SACHS J.
J. MACKINNON J.
Released: 20131220
CITATION: Figueiras v. (York) Police Services Board, 2013 ONSC 7419
DIVISIONAL COURT FILE NO.: 568/12
DATE: 20131220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Then R.S.J., Sachs and J. Mackinnon JJ.
BETWEEN:
PAUL FIGUEIRAS
Applicant
– and –
REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD and MARK CHARLEBOIS and the OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR
Respondents
REASONS FOR JUDGMENT
THE COURT
Released: 20131220