CITATION: Mulligan v. Ontario Civilian Police Commission, 2020 ONSC 2031

DIVISIONAL COURT FILE NO.: 241/18

DATE: 2020/04/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs and D.L. Corbett JJ.

BETWEEN:

Ontario Provincial Police Sergeant Dan Mulligan

Applicant

– and –

Ontario Civilian Police Commission and Ontario Provincial Police

Respondents

James A. Girvin, for the Applicant

Andrea Huckins, for the Respondent, Ontario Provincial Police

Jason Tam and Matthew Peachey, for the Ontario Civilian Police Commission

HEARD at Toronto: October 29, 2019

REASONS FOR DECISION

H. Sachs J.

Overview

[1] This is an application to judicially review the decision of the Ontario Civilian Police Commission (the “Commission”) that upheld findings of misconduct against Sergeant Dan Mulligan of the Ontario Provincial Police (“OPP”). As a result of the findings, Sergeant Mulligan was demoted for a year from sergeant to first class constable. Sergeant Mulligan has served that penalty and the penalty decision is not the subject of this application.

[2] The misconduct findings arose out of a letter that Sergeant Mulligan wrote to a newspaper criticizing a proposed decision by the OPP to relocate a helicopter from Sudbury to Orillia. Sergeant Mulligan was the Pilot-in-Command of the helicopter base in Orillia. As a result of the proposed decision, Orillia would have two helicopters and Sudbury would have none. Sergeant Mulligan was concerned that the decision would put pilots at risk and jeopardize search-and-rescue operations in the north. He expressed his concerns in a letter to the newspaper.

[3] As a result of the letter, the OPP charged Sergeant Mulligan with breach of confidence and discreditable conduct. In advance of the hearing, Sergeant Mulligan moved for an order requiring disclosure of certain communications that he maintained he required to establish the truth of the contents of his letter to the newspaper. According to Sergeant Mulligan, he intended to defend the misconduct charges on the basis of the principle of responsible communication in the public interest (the “whistleblower defence”).

[4] The Hearing Officer dismissed the motion for disclosure, finding that the truth of the contents of the letter was irrelevant to the decision she had to make.

[5] Sergeant Mulligan then brought a second pre-hearing motion asking the Hearing Officer to recuse herself on the basis of reasonable apprehension of bias. The Hearing Officer dismissed this motion as well.

[6] After a hearing, the Hearing Officer found Sergeant Mulligan guilty of breach of confidence and discreditable conduct. Sergeant Mulligan appealed the decision to the Commission, which upheld both findings of guilt. In its decision the Commission found that the Hearing Officer had properly dismissed the recusal motion, but had erred in denying the disclosure motion as truth was a component of the whistleblower defence. However, it decided that the lack of disclosure had no impact on the result since Sergeant Mulligan had not made out another necessary component of the whistleblower defence, namely, that he had not raised his concerns with the chain of command before expressing them in a letter to the newspaper.

[7] On this application Sergeant Mulligan submits that the Commission erred in upholding the Hearing Officer’s decision on the recusal motion. He also argues that the Commission failed to appreciate how the denial of disclosure deprived him of the opportunity to make full answer and defence to the charges of misconduct and that the Commission therefore erred in upholding the Hearing Officer’s rejection of the whistleblower defence.

[8] For the reasons that follow I would dismiss the application. The Commission made no error in finding that Sergeant Mulligan had not established bias on the part of the Hearing Officer. The Commission also correctly found that in this case, even if Sergeant Mulligan had been able to prove that what he said to the press was true, he could not succeed on the whistleblower defence as he made no effort to bring his concerns to any of his superiors before going to the press.

Background

Facts Giving Rise to the Misconduct Charges

[9] Sergeant Mulligan joined the OPP in 1983 and in 2001 he became Pilot-in-Command of a helicopter base in Orillia.

[10] In April 2015 Commissioner Hawkes announced that the OPP had decided to relocate a helicopter from Sudbury to Orillia. Orillia, where Sergeant Mulligan was stationed, would have two helicopters, and Sudbury would have none.

[11] Sergeant Mulligan was concerned about the planned relocation. He expressed his concerns in the following letter to the editor of the Sudbury Star:

My colleagues flying the Sudbury-based OPP helicopter throughout Northern Ontario since their first posting there in November of 1990 have saved literally hundreds of lives in their role as an aerial support service for not only our own organization, but also many municipal and Nishnawbe-Aski Police Services stretching from Quebec to Manitoba borders.

For our organization to suggest that financial efficiencies to the tune of a quarter million dollars annually can be achieved by relocating this latest, $6.5-million provincial resource- a procurement successfully achieved in 2011 by former Sudbury MPP Rick Barolucci during times of fiscal restraint- amounts to a classic shell game at best and a very negligent crapshoot with Northern lives (the losses of which are inevitable/irrefutable) at worst.

As a former Sudbury boy with family remaining in the North, I couldn’t possibly express in publishable words how strongly I object to such an ill-conceived reallocation of such an important aircraft. I have personally spent many, incredibly frustrating days at our General Headquarters-based heliport in Orillia between November and March in Georgian Bay-influenced “lake effect” snow squalls that are so intense we cannot see across Memorial Avenue. All the while, our Sudbury helicopter traditionally enjoyed good weather and was capable of providing an immediate response to any calls for service north of Georgian Bay.

When-not if- when one child, one Alzheimer’s-riddled grandparent, one loved one goes missing, the OPP has both a moral and legal obligation to continue to provide what has logistically proven to be the best professional search and rescue response possible to our northern families.

Dan Mulligan Sergeant, OPP Aviation Services Section- Helicopter Unit OPP General Headquarters Orillia

--Note: This letter is a personal opinion and is not in any way designed to be representative of my employer.

[12] Excerpts from the letter appeared in the North Bay Nugget on May 4, 2015, and the Star published the entire letter on May 7, 2015.

[13] On May 5, 2015 Commissioner Hawkes sent his own letter to the Nugget. In this letter, which was also published in the Star, the Commissioner set out the rationale behind the OPP’s decision. Sergeant Mulligan maintains that the Commissioner’s letter contained inaccurate information. Further, he was concerned that the source of this inaccurate information was his direct superior.

[14] In July of 2015, the OPP charged Sergeant Mulligan with breach of confidence and discreditable conduct.

[15] According to Sergeant Mulligan (whose evidence on this point was not challenged), on April 20, 2016 Commissioner Hawkes acknowledged that he had based his relocation decision on incorrect information.

The Disclosure Motion

[16] Sergeant Mulligan brought a prehearing motion for production of communications between Commissioner Hawkes and other members of the OPP. In support of his request, Sergeant Mulligan submitted that he needed the requested information to establish the truth of his statements to the newspaper. In doing so he advised the Hearing Officer that he “anticipated that part of his defence will rely on the principles of responsible communication on a matter of public interest” (Hearing Officer’s Disclosure Motion Decision).

[17] The Hearing Officer denied Sergeant Mulligan’s request, finding that she did not see the arguable relevance of the production request. According to her “the truth of the Applicant’s statements to the Sudbury Star is not at issue.”

The Recusal Motion

[18] Sergeant Mulligan brought his recusal motion after he lost the production motion. According to him, he had concerns about the impartiality of the Hearing Officer from the outset, but felt it was only fair to give her a chance. Once she ruled against him on the disclosure motion, he realized that his concerns were justified.

[19] The basis for Sergeant Mulligan’s recusal motion is best summarized in the following extract from the Hearing Officer’s decision in that motion:

[Sergeant Mulligan] submits when an informed or reasonable person who is apprised that the hearing officer reports to and is appointed by the Commissioner; that she had prior evidentiary information about the case and did not disclose this knowledge; that she had previously engaged in unsanctioned misconduct; and, could be called upon to assess the credibility of her supervisor, the Commissioner [who Sergeant Mulligan argued could be a witness in the proceedings], it is more likely than not a person would reasonably believe, whether consciously or unconsciously, the hearing officer would not be able to decide the matter fairly, impartially and without bias.

[20] In her decision the Hearing Officer reviewed the law with respect to establishing a reasonable apprehension of bias and noted the presumption of impartiality that applies to an administrative tribunal, which meant that the threshold for establishing bias was high and the onus was on the party alleging bias.

[21] In this case, the Hearing Officer found that her ruling on the disclosure motion was based on the evidence and the arguments, and that Sergeant Mulligan was using bias as a weapon to overturn her decision.

[22] She dealt with Sergeant Mulligan’s assertion that she had read a weekly electronic broadcast of news published by the OPP, which contained particulars relating to Sergeant Mulligan’s case, by finding that she had no independent recollection of having read the article and that she had not closed her mind to the issues in Sergeant Mulligan’s case.

[23] The Hearing Officer acknowledged that she had been appointed by the Commissioner to preside over Sergeant Mulligan’s case and that she reported to the Commissioner. She found that, based on the caselaw, neither factor gave rise to a reasonable apprehension of bias. Further, it was pure speculation that the Commissioner would be called upon to testify.

[24] The Hearing Officer denied that she had ever been sanctioned for serious misconduct.

[25] With respect to the allegations of institutional bias, the Hearing Officer found that the structure that Sergeant Mulligan was complaining of had been set up by statute, and that the statute prevails over any common law concepts of institutionalized bias.

[26] As already noted, the Hearing Officer dismissed the recusal motion.

The Hearing Officer’s Decision on the Misconduct Charges

[27] The Hearing Officer found that the charge of breach of confidence was proven because Sergeant Mulligan communicated with the media on a matter in relation to the OPP without authorization. She also found that the evidence supported the charge of discreditable conduct. Both the tone and the content of Sergeant Mulligan’s letter to the media would, in the mind of a reasonable person, bring discredit upon the reputation of the OPP.

[28] The Hearing Officer then turned to the question of whether Sergeant Mulligan was justified in communicating with the media in regard to the relocation of the OPP helicopter. As acknowledged by the Hearing Officer, this required a consideration of the whistle blower defence.

[29] The Hearing Officer rejected Sergeant Mulligan’s whistleblower defence. She found that he was not justified in communicating with the media. In doing so she held:

Sgt. Mulligan would like the tribunal to believe he had no alternative but to go to the media because he had no confidence his bureau command staff would listen to his concerns. In my view, the evidence indicated otherwise so I found this to be a self-serving notion. What I heard and saw pointed to a frustrated employee whose contempt for his supervisor was deep-rooted and substantial. Sgt. Mulligan’s evidence persuaded me that the relocation of the OPP helicopter was, at least in part if not wholly, a convenient and timely opportunity for him to speak out against the OPP.

[30] With respect to the specific aspect of Sergeant Mulligan’s whistleblower defence, namely that the relocation of the helicopter would jeopardize the lives and safety of its officers and the public, the Hearing Officer stated:

I accept that this was his opinion and understand that it came from years of flying, but he [neither] said, nor produced anything to convince me this was in fact the case. Specific to his claim the relocation would put officer safety at risk; I suggest there is a risk every time an officer engages in any of his/her prescribed duties. The OPP is extremely proficient in the provision of training, equipment and policies to do everything reasonably possible to minimize such risks. While the helicopter may be a valuable support, ensuring the safety of an officer does not depend solely on it and the same holds true for public safety. I refer to the Commissioner’s letter, which outlined all the other resources relied upon during search and rescue missions: […]

My focus turns to the email Sgt. Mulligan sent to the Minister. Most notably absent from it was any evidence, for example facts and statistics, to support his claim the relocation of the helicopter compromised the lives and safety of others. Rather, for 10 pages it contained complaints about his supervisor. This helped me conclude there really was no concrete evidence to base his claim lives would be lost because of the relocation. Rather, it was his personal opinion, and while he is entitled to one, it was not something to vent publicly. By doing so, he discredited the OPP.

Absent any evidence, Sgt. Mulligan failed to convince me the relocation of the helicopter would directly jeopardize the lives of others. In fact, if the OPP manages to achieve its stated goal as reported by the Commissioner, one can only expect more good news stories to flow in regard to its increased availability.

The Commission’s Decision

[31] Sergeant Mulligan argued before the Commission that the Hearing Officer had misinterpreted the law as it related to the decision to deny his request for disclosure, which rendered the proceedings unfair; erred in dismissing his motion for recusal; and erred in her application of the law relating to the whistleblower defence.

[32] The Commission agreed that the Hearing Officer erred in refusing disclosure as “whether the appellant could prove the truth of his statements was essential to establishing the ‘whistleblower’ defence.” The Commission also accepted that subsequent statements by the Hearing Officer were inconsistent with her ruling on the disclosure motion, particularly her statements to the effect that Sergeant Mulligan had failed to produce any evidence to convince her of the truth of the contents of his letter to the newspaper.

[33] The Commission rejected Sergeant Mulligan’s assertions regarding bias as “they do not meet the test for establishing a reasonable apprehension of bias.” With respect to the allegation of institutional bias, the Commission agreed that institutional bias could not be made out in the face of a statutory scheme that provided for that very procedure. The Commission also found that the Hearing Officer’s decision to dismiss the disclosure motion did not raise a reasonable apprehension of bias.

[34] Before the Commission Sergeant Mulligan argued that some of the Hearing Officer’s remarks in her decision on the merits indicated actual bias. The Commission disagreed. It found that “[t]he Hearing Officer strongly disapproved of the appellant’s actions and motivations in sending his letter to the Sudbury Star and she made that clearly known in her decision. She drew inferences from the evidence as she was allowed to do. In our view, her comments, as harsh as they may have seemed, are not sufficient for the appellant to establish actual bias or the reasonable apprehension of bias on the part of the Hearing Officer.”

[35] The Commission found that the Hearing Officer’s failure to allow the disclosure motion did not affect her decision on the whistleblower defence, because in order to establish that defence it was necessary to establish four factors, one of which was that the person invoking the defence had taken all reasonable steps to have the matter addressed internally before releasing the information outside the OPP. Thus, even if what Sergeant Mulligan said in his letter was true, he could not succeed in establishing the whistleblower defence because he had not raised his concerns internally with his superiors at the OPP before going to the press.

[36] The Commission confirmed the decision of the Hearing Officer with respect to the convictions for breach of confidence and discreditable conduct.

Issues Raised and Standard of Review

[37] Sergeant Mulligan challenges two aspects of the Commission’s decision – its decision on the recusal motion and its decision with respect to the merits. According to Sergeant Mulligan, the evidence demonstrates both actual bias and a reasonable apprehension of bias on the part of the Hearing Officer. Further, by denying him the opportunity to obtain disclosure, he was denied the opportunity to make full answer and defence to the misconduct charges.

[38] The Commission’s decision on the recusal motion deals with an issue that raises concerns about procedural fairness – bias. The Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 makes no change to the law of judicial review when issues of procedural fairness are engaged. On issues of procedural fairness no standard of review analysis is necessary. A hearing is either procedurally fair or it is not. If a standard of review is to be applied where procedural fairness is involved, that standard is correctness.

[39] The Commission’s decision on the merits is inextricably connected to Sergeant Mulligan’s argument that he was not given the opportunity to make full answer and defence. On the merits, the Commission decided that a person invoking the defence had to establish that they had raised the matter internally before going public with their complaint. Because Sergeant Mulligan had not done so it did not matter that he was denied the opportunity to make out the truth of his allegations. If the Commission was wrong on this issue, then Sergeant Mulligan’s argument about being denied the right to make full answer and defence could succeed. At its core, the Commission’s decision on the merits raises concerns about whether Sergeant Mulligan was accorded procedural fairness. Thus, I will review the Commission’s decision on the merits applying a correctness standard.

[40] Sergeant Mulligan also made submissions expressing concern about the Commission’s treatment of his appeal concerning the disclosure motion. Since the Commission agreed that the Hearing Officer had erred in her ruling on the disclosure motion, I will not deal with that motion. I will, however, deal with the question of whether the Hearing Officer’s conduct during the disclosure motion raised concerns of bias. I will also deal with the question of whether the Hearing Officer’s failure to order the requested disclosure impacted Sergeant Mulligan’s right to a fair hearing.

Bias

[41] I start my analysis on this issue with an acceptance of the principle that decision-makers enjoy a strong presumption of impartiality. The party alleging actual bias, or a reasonable apprehension of bias bears the burden of rebutting the presumption (Wewaykum Indian Band v. Canada, 2003 SCC 45).

[42] Sergeant Mulligan argues that the Hearing Officer’s dismissal of the disclosure motion, coupled with her statements in her decision on the merits, demonstrates actual bias.

[43] I agree with the Commission that there is no evidence of bias on the part of the Hearing Officer when it comes to the disclosure motion. Her ruling on that motion was in error (as the Commission found), but this does not mean that she committed that error because she was biased.

[44] The same holds true with respect to the Hearing Officer’s decision on the merits. I agree with Sergeant Mulligan that the Hearing Officer’s error on the disclosure motion was compounded when she rejected his whistleblower defence because she found that there was no evidence to support the allegations he had made, and when she accepted the truth of the Commissioner’s position in his letter to the newspaper when no evidence had been called during the hearing to support that position. However, these errors did not rise to the level of demonstrating actual bias or reasonable apprehension of bias.

[45] I also agree with the Commission that Sergeant Mulligan’s allegation of institutional bias cannot stand. This court has already found that disciplinary proceedings under the Police Services Act are not tainted by institutional bias (see Amormino v. Ontario Police Services Board, 2015 ONSC 7718).

The Commission’s Decision on the Merits

The General Principle Governing the Whistleblower Defence

[46] In Fraser v. P.S.S.R.B., [1985] 2 SCR 455, Dickson C.J.C. sought the “proper legal balance between (i) the right of the individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, qua federal public servant, to fulfill properly his or her functions as an employee of the Government of Canada.” (at pp.457-458).

[47] The following passage from p.471 of that judgment has become the leading statement on the scope of the “whistleblower defence”:

As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servants or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies.

[48] In the above passage, Dickson C.J.C. listed, non-exhaustively, examples of situations in which the employee’s freedom of expression should prevail over their duty of loyalty. One of those situations is where the employer’s policies jeopardize the life, health or safety of others.

[49] Fraser did not deal with the Canadian Charter of Rights and Freedoms as its facts arose before the Charter came into force. However, in Haydon v. Canada, [2001] 2 F.C. 82, (“Haydon No. 1”), the Federal Court concluded that the duty of loyalty as articulated in Fraser sufficiently accommodated the Charter right of freedom of expression and was a reasonable limit within the meaning of section 1 of the Charter. This conclusion was quoted with approval by the Federal Court of Appeal in Haydon v. Canada, 2005 FCA 249 (“Haydon, No. 2”) at para. 33.

The Commission’s Treatment of the Whistleblower Defence

[50] The Commission recognized that the “concerns raised by [Sergeant Mulligan] clearly dealt with health and safety issues.” It also recognized that Sergeant Mulligan “was denied the opportunity to prove the truth of his statements by the decision of the Hearing Officer on the disclosure motion.” (para. 46).

[51] However, the Commission decided that this argument did not assist Sergeant Mulligan because he did not take “all reasonable steps to have the matter addressed internally.” According to the Commission, Sergeant Mulligan’s failure to do so “was fatal to the ‘whistleblower’ defence.” (para. 46 and 47).

Did the Commission Err in its Treatment of the ‘Whistleblower Defence’?

[52] In its reasons the Commission was guided by a decision of the Alberta Law Enforcement Review Board, EPS Officer AB v. Chief of Police. That decision looked to Fraser and some jurisprudence of the Federal Court and Federal Court of Appeal. Relying on that jurisprudence, the Board wrote as follows:

In the Board’s view the Presiding Officer made a reasonable decision when he held that the appellant had not established a sufficient cause for the application of the whistleblower defence as described by the Supreme Court in Fraser v. Public Service Staff Relations Board, [1985] 2 SCR 455 and followed in Stenhouse v. Canada, 2004 FC 375, [2004] 4 FCR 437 and Read v. Canada, 2006 FCA 283. As required by the authorities, the appellant would have to establish the following to avail himself of the whistleblower defense:

• That illegal acts by EPS or practices or policies of the EPS jeopardized the life, health or safety of the appellant or others.

• That his actions in coming forward were responsible and were not based simply on a difference of opinion with his superiors, including a difference of opinion as to the appropriateness of investigations conducted into the alleged misconduct.

• That he had taken all reasonable steps to have the matter addressed internally before releasing information outside of the EPS.

• That he could prove the issues alleged to justify the breach of the duty of confidentiality on a balance of probabilities.

[53] In its decision the Commission also referred to the trial decision in Haydon No. 2 (reported at 2004 FC 749; aff’d at 2005 FCA 249, leave to appeal denied, 2006 1137 (SCC).) where at para. 49 the Court states:

[T]he following factors are relevant in determining whether or not a public service employee who makes public criticism breaches his or her duty of loyalty towards the employer; the working level of the employee within the government hierarchy; the nature and content of the expression, the sensitivity of the issue discussed; the truth of the statements made; the steps taken by the employee to determine the facts before speaking; the efforts made by the employee to raise his or her concerns with the employer; the extent to which the employer’s reputation was damaged; and the impact on the employer’s ability to conduct business.

[54] In para. 47 of Haydon No. 2, the trial judge adopted the following comment from a previous arbitral award:

While an employee’s duty of fidelity to an employer does not prevent him in every circumstance from publicly criticizing his employer, it is recognized that public criticism is not the first step that should be taken in order to bring wrongdoing within the enterprise to the attention of those who can correct it. In other words, while an employee in some circumstances may be forced to “go public”, e.g. concerning an unsafe chemical or machine which his company produces, before doing so, he should attempt to get all the facts and give his employer an opportunity to explain or correct the problem. Most employers have a variety of mechanisms, formal or informal, under which an employer may lodge a complaint about the manner in which the enterprise should be operated. Only if no satisfaction results from those channels, then and only then, may an employee “go public.”

[55] While the case law on the whistleblower defence does not go so far as to clearly state that the need to first bring the issue to the attention of the chain of command is a necessary element of the whistleblower defence, it does acknowledge that this is a factor to consider. This makes sense. Absent exceptional circumstances, a public servant like Sergeant Mulligan, who owes a duty of loyalty to their employer, should not be able to breach that duty without first giving their employer a chance to deal with the matter.

[56] Sergeant Mulligan’s explanation for not raising the matter internally first was that his work environment was poisoned, and his chain of command was dysfunctional. However, as the Commission found:

Had [Sergeant Mulligan] simply first sent the same letter that went to the Sudbury Star up the chain of command, either he would have received a response or he would have paved the way for him to go public with his concerns.

[57] There may be a situation where the issues raised are so pressing and urgent and the chain of command so obviously dysfunctional or corrupt that going public first is the only reasonable option. However, Sergeant Mulligan never argued that the urgency of the situation made it impractical for him to raise the matter internally first. Furthermore, the evidence he presented did not meet the threshold required to demonstrate the type of dysfunctionality or corruption that would be required for this type of exception to the usual rule.

[58] Thus, I find that the Commission did not err in its treatment of the whistleblower defence. Therefore, its decision on the merits was correct.

Conclusion

[59] For these reasons, the application for judicial review is dismissed. Neither party sought costs and none are awarded.

H. Sachs J.

I agree _______________________________

Kiteley J.

I agree _______________________________

D.L. Corbett J.

Released: April 15, 2020

CITATION: Mulligan v. Ontario Provincial Police, 2020 ONSC 2031

DIVISIONAL COURT FILE NO.: 241/18

DATE: 2020/04/15

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Kiteley, Sachs and D.L. Corbett

BETWEEN:

Ontario Provincial Police Sergeant Dan Mulligan

Applicant

– and –

Ontario Civilian Police Commission and Ontario Provincial Police

Respondents

REASONS FOR DECISION

H. Sachs J.

Released: April 15, 2020