Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065

CITATION: Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065

DIVISIONAL COURT FILE NO.: 165/20

DATE: 20210503

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BALTMAN, PATTILLO AND KRISTJANSON JJ.

BETWEEN:

DURHAM REGIONAL POLICE SERVICE

Applicant

– and –

THE ONTARIO CIVILIAN POLICE COMMISSION and SERGEANT DENNIS MASTROIANNI

Respondents

Ian Johnstone and Alex Sinclair, for the Applicant

Astrid Arzu and Valerie Crystal, for the Ontario Civilian Police Commission

Sandy Khehra for Sergeant Mastroianni

HEARD by Videoconference: November 12, 2020

L.A. PATTILLO J.

Introduction

[1] This matter is yet another in an ongoing dispute between the applicant, the Durham Regional Police Service (the “DRPS”) and its Chief of Police Paul Martin and the respondent, the Ontario Civilian Police Commission (the “Commission”), following the Commission’s May 23, 2019 emergency interim order appointing an Administrator to provide specified oversight functions to the DRPS.

[2] In this application, the DRPS seeks judicial review of the Commission’s May 12, 2020 decision directing Chief Martin to withdraw disciplinary charges against the respondent Sergeant Dennis Mastroianni pursuant to s. 78(1) of the Police Services Act, R.S.O. 1990, c. P. 15 (the “Act”).

[3] The DPRS submits that in so doing, the Commission failed to accord it the requisite level of natural justice and procedural fairness, exhibited a reasonable apprehension of bias and its reasons were unreasonable in that, among other things, it failed to comply with the provisions of the Act.

[4] For the reasons that follow, I would dismiss the DRPS’ application. In my view, there was no breach of natural justice and procedural fairness, the DRPS has failed to establish a reasonable apprehension of bias on the part of the Commission and the Commission’s decision was reasonable considering the legal and factual constraints that bear on it.

Background

[5] The DRPS is responsible for the provision of policing services in the Durham Region, which is comprised of approximately 645,000 people and eight local municipalities.

[6] The Commission is a public body established under Part II of the Act and has a broad regulatory and policy role in the civilian oversight of policing in Ontario. It has a varied set of powers and functions in respect of its oversight role and plays a central role in supporting the Act’s purpose to increase public confidence in the provision of police services.

[7] In March 2017, a DRPS staff member made a complaint against Sgt. Mastroianni and another officer of the DRPS alleging workplace bullying and harassment against a female staff member by using sexist and derogatory language.

[8] The DRPS has a Respect in the Workplace Policy (“RITW”) which is required and was developed pursuant to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. The RITW details what constitutes workplace harassment and discrimination and sets out the procedures that the DRPS must follow when a complaint arises.

[9] The RITW Committee commenced an investigation into the complaint in accordance with the RITW. The DRPS hired retired Ontario Provincial Police Officer Randy Rosiak to investigate the claims and provide a report of his findings to the Committee.

[10] Mr. Rosiak was tasked with determining whether there were any breaches of Bill 168, Workplace Violence Legislation and the DRPS’ RITW. The investigation involved reviewing documentation provided by the DRPS, including the RITW and DRPS’ Code of Professional Conduct, obtaining statements from uniform and civilian members of DRPS and interviews of the complainant and the respondents.

[11] In a detailed report dated September 7, 2017, Mr. Rosiak concluded, among other things, that the actions of Sgt. Mastroianni “constituted sexual harassment as defined in the Occupational Health and Safety Act and contravened the DRPS Respect in the Workplace (Anti-Harassment and Violence Policy) HR-02-11.”

[12] On September 26, 2017, the RITW Committee provided a memorandum to Chief Martin regarding Mr. Rosiak’s findings and suggested corrective action be taken. On November 1, 2017, Chief Martin sent a notice to attempt a disposition without a hearing under the Act to Sgt. Mastroianni, but no resolution was achieved.

[13] On December 8, 2017, Chief Martin signed a formal complaint pursuant to s. 76(1) of the Act, alleging that Sgt. Mastroianni committed discreditable conduct contrary to the Act and the Code of Conduct, Ont. Reg. 268/10, as amended under the Act (the “Code”).

[14] The relevant sections of s. 76 of the Act provide as follows:

76(1) A chief of police may make a complaint under this section about the conduct of a police officer employed by his or her police force, other than the deputy chief of police, and shall cause the complaint to be investigated and the investigation to be reported on in a written report.

76(3) Upon making a complaint about the conduct of a police officer, the chief of police shall promptly give notice of the substance of the complaint to the police officer unless, in the chief of police’s opinion, to do so might prejudice an investigation into the matter.

76(4) A municipal chief of police may, with the approval of the board and on written notice to the Commission, ask the chief of police of another police force to cause the complaint to be investigated and to report, in writing, back to him or her at the expense of the police force to which the complaint relates.

76(8) If at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police is of the opinion that the complaint is unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the police officer who is the subject of the complaint in writing of the decision, together with a copy of the written report.

76(9) Subject to subsection (10), if at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police believes on reasonable grounds that the police officer’s conduct constitutes misconduct as defined in section 80 or unsatisfactory work performance, he or she shall hold a hearing into the matter.

76(10) If at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police is of the opinion that there was misconduct or unsatisfactory work performance but that it was not of a serious nature, the chief of police may resolve the matter informally without holding a hearing, if the police officer consents to the proposed resolution.

[15] On December 19, 2017, Sgt. Mastroianni was served with a Notice to Attend a Hearing pursuant to Part V of the Act signed by Chief Martin. The Notice set out three counts of alleged discreditable conduct, contrary to the Act and Code.

[16] The hearing commenced on January 10, 2018. The Hearing Officer was a retired Deputy Chief from the York Regional Police Service. Subsequently, Sgt. Mastroianni brought a motion to stay the misconduct charges on the ground they were an abuse of process. The motion was heard by the Hearing Officer on December 3, 2018 and dismissed on January 26, 2019.

[17] On May 23, 2019, as noted, the Commission appointed an Administrator to oversee certain functions, including disciplinary matters, at the DRPS.

[18] On January 14, 2020, the Commission wrote to Chief Martin stating that the prosecution of Sgt. Mastroianni had recently come to its attention and that the investigation by Mr. Rosiak, an individual not currently a member of any police service, together with the absence of any notice to the Commission suggested there may have been a breach of s. 76(4) of the Act. The letter set out a number of questions concerning the investigation and requested a response by January 29, 2020.

[19] On January 29, 2020, counsel for the DRPS responded to the Commission’s letter. It noted, among other things, the investigation, which was outsourced, was undertaken as a result of a RITW complaint and, as it was an RITW investigation, no other police service was asked to investigate the complaint. Accordingly, it was not necessary to seek approval from the Durham Regional Police Services Board (the “Board”) or to notify the Commission. The DRPS concluded the charges ought to be laid against Sgt. Mastroianni after reviewing the Rosiak report.

[20] The letter stated, “the matter was not originally deemed a Part V investigation, but later turned into one after the Service received information from Insp. Rosiak (Ret’d).”

[21] On January 30, 2020, DPRS’ counsel sent the Commission copies of the documentation in respect of the RITW investigation, including the Rosiak report, the memorandum from the RITW Committee to Chief Martin and the Application Record of the DRPS in response to Sgt. Mastroianni’s motion to stay the charges.

[22] On February 27, 2020, the Commission again wrote to Chief Martin in respect of the charges against Sgt. Mastroianni and its concern that a number of the requirements under the Act were apparently not met. Specifically, the Commission noted that the conduct that concerns it was either that Chief Martin:

Failed to ensure that his complaint was investigated as required by s. 76 of the Act; or
Failed to:

a. get approval from the Board to have the DRPS investigate and report on your complaint regarding the conduct of Sgt. Mastroianni; and

b. notify the Commission, as required by s. 76(4) of the Act.

[23] The letter went on to set out in detail, based on its review of the DRPS response to its initial letter and the documents provided, the reasons behind its concerns, including its view that neither the RITW investigation nor the Rosiak report properly constituted an investigation and a written report into Sgt. Mastroianni’s possible misconduct pursuant to s. 76(1) of the Act. Further, even if they did, Chief Martin failed to obtain approval from the Board and to notify the Commission as required by s. 76(4) of the Act.

[24] The Commission concluded by saying that it viewed either of the noted failures as fatal to the procedural legitimacy of the charges against Sgt. Mastroianni going forward to a hearing and was contemplating issuing a direction to Chief Martin to withdraw the charges. Before doing so, however, it wished to give both Chief Martin and Sgt. Mastroianni an opportunity to make written submissions, which it expected to be delivered within 15 days of the date of the letter.

[25] On March 11, 2020, DRPS counsel requested an extension of time until March 20, 2020 to deliver written submissions. On March 12, 2020, the Commission granted the DRPS request but stated that no further extension requests would be considered or granted.

[26] On March 20, 2020, counsel for the DRPS on behalf of Chief Martin requested an additional extension of time to March 27, 2020. The letter referred to the state of emergency in Ontario due to COVID-19, the fact that the DRPS has been busier than usual for March and that Chief Martin was in self-isolation until March 27. The DPRS request was opposed by Sgt. Mastroianni.

[27] On March 23, 2020, the Commission rejected the DRPS’ March 20, 2020 request for an extension. On March 24, 2020, the DRPS requested that the Commission reconsider its decision not to grant an extension which the Commission denied on March 25, 2020, to which the Commission did not respond.

[28] Also, on March 23, 2020, the DRPS, through counsel, provided lengthy submissions in reply to the Commission’s February 27, 2020 letter. It took issue with what it stated were the Commission’s “erroneous conclusions” contained in its letter and said it was clear that the DPRS had complied with s. 76. It stated written notice of the complaint and RITW investigation was given to Sgt. Mastroianni including that disciplinary action under Part V of the Act could be undertaken by Chief Martin. The RITW investigation was fulsome and complete and there was no need for Chief Martin to conduct a further investigation. It further stated that Chief Martin adopted the Rosiak report as an investigation “report” for the purposes of s. 76(1). Further, the December 19, 2019 Notice setting out the charges “simply set out the substance of the complaint” previously communicated to Sgt. Mastroianni. Accordingly, the words “investigation” and “report” in s. 76(1) should be interpreted broadly to include the RITW investigation and the Rosiak report.

[29] The letter further stated that s. 76(4) did not require Chief Martin to assign the investigation to another police force. The language of that section is permissive. As a result, the DRPS was not required to obtain Board approval and provide notice to the Commission.

[30] Finally, the DRPS submitted that the Commission should not issue a direction to withdraw the charges against Sgt. Mastroianni. In the alternative, and even if the DRPS concluded the DRPS failed to fully comply with the procedural requirements in s. 76, the Commission should not issue such a direction on the basis that to do so would undermine the reputability of the entire disciplinary process. Further, it remains open to Sgt. Mastroianni to bring a motion in the discipline hearing alleging that the DPRS has not complied with s. 76.

[31] On May 12, 2020, the Commission sent a letter addressed to both Chief Martin and Sgt. Mastroianni stating that based on the information received and after considering all submissions received from both parties, it was the Commission’s view that Chief Martin had breached ss. 76(1), (4) and (9) of the Act by basing his decision to initiate a hearing against Sgt. Mastroianni on an investigation and report not predicated upon a complaint from Chief Martin. The failure went to the jurisdiction of Chief Martin’s reasonable grounds to conclude that Sgt. Mastroianni committed misconduct.

[32] Accordingly, pursuant to s. 78(1) of the Act, the Commission directed Chief Martin to withdraw the disciplinary charges against Sgt. Mastroianni promptly.

The Issues

[33] The DRPS submits that the Commission:

Breached its duty of natural justice and procedural fairness owing to it;
Created a reasonable apprehension of bias in its decision and conduct towards Chief Martin and the DRPS; and
The May 12, 2020 decision directing Chief Martin to withdraw the charges against Sgt. Mastroianni is unreasonable and cannot stand.

Jurisdiction

[34] While the Act provides for appeals to the Divisional Court under certain circumstances, s. 78(1), under which the Commission’s decision was made in this case, is not one of them. Accordingly, the DRPS has brought an application for judicial review.

[35] This court has jurisdiction to grant relief in a judicial review pursuant to s. 2(1) of the Judicial Review Procedure Act, R.S.O. 1990, C. J. 1.

Standard of Review

[36] The parties agree that the standard of review in respect of the Commission’s decision is reasonableness, in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1.

[37] A reasonable decision is one which is both based on internally coherent reasoning and justified considering the legal and factual constraints that bear on it: Vavilov, paras. 99 – 107.

[38] There is no standard of review when considering procedural fairness. The role of the reviewing court is to determine whether the appropriate level of procedural fairness was accorded having regard to the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 (SCC).

[39] Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker. Bias is a component of procedural fairness and concerns the right to have a decision by an unbiased decision-maker: Baker at para. 45. In the administrative law context, the question to be addressed is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at pp. 394.

Preliminary Matter

Fresh Evidence

[40] As part of its application, the DRPS has brought a motion to have the affidavits of both Chief Martin and Mr. Rosiak admitted as fresh evidence on the application.

[41] The affidavit of Chief Martin is submitted to demonstrate that the Commission failed to afford the DRPS procedural fairness and sets out in detail the background leading up to the Commission’s May 12, 2020 letter. It also sets out, in respect of the allegation of bias, a complex web of personal relationships surrounding the Commission’s appointment of the Administrator pursuant to its May 23, 2019 Order and refers to Chief Martin’s judicial review application of the Order to support what Chief Martin submits is an “adversarial relationship” between the Commission and the DRPS.

[42] The affidavit of Mr. Rosiak provides his background, including his involvement in workplace violence and harassment investigations following retirement from the OPP in 2011; his retainer by DRPS in respect of the RITW investigation; and his report with respect to the allegations. He concludes by saying there were no other investigative steps he could have taken or would have recommended be taken and that his report provided all available information in respect of the allegations against Sgt. Mastroianni.

[43] The DRPS submits the evidence of both Chief Martin and Mr. Rosiak should be admitted to deal with their allegations of breach of procedural fairness and bias. In support, it relies on the four-part test established by the Supreme Court of Canada in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, 106 D.L.R. (3d) 212 at pp. 775.

[44] The Commission submits that neither of the affidavits of Chief Martin and Mr. Rosiak should be admitted. Both affidavits fail to meet the test for admission of fresh evidence on a judicial review set out in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513, 114 D.L.R. (3d) 162 (C.A.) at p. 521. Further, neither affidavit has any bearing on the issue of procedural fairness and bias.

[45] The DPRS’ reliance on the Palmer test is misplaced. It is directed to the admission of fresh evidence on an appeal. In this case, however, the evidence is sought to be relied on as part of the record on judicial review. Generally, the record on judicial review is restricted to what was before the decision-maker. There are, however, limited circumstances where the record may be supplemented: e.g., to show the absence of evidence on an essential point, to disclose a breach of natural justice that cannot be proven by reference to the record or to provide general background that might assist the court in understanding the underlying issues: Keeprite; Scott v. Toronto (City), 2021 ONSC 858 at paras. 19-20.

[46] The Rosiak affidavit mainly provides evidence that is already part of the record. The DRPS submits its purpose is to demonstrate that Mr. Rosiak thoroughly investigated Sgt. Mastroianni’s conduct such that Chief Martin was not required to initiate another investigation into the conduct. That point, however, was made by the DRPS in its submissions to the Commission prior to the decision on May 12, 2020.

[47] For the same reason, I do not accept DRPS’ submission that the information could not have been adduced during the Commission’s decision-making process because it was not given a reasonable time to make submissions on whether it complied with the provisions of the Act. To the extent that any information concerning Mr. Rosiak’s investigation was not provided by the DRPS prior to the May 12, 2020 decision, that was the fault of the DRPS.

[48] In my view, the Rosiak affidavit is not properly part of the record on judicial review, does not meet the test for fresh evidence, and should not be admitted.

[49] I have a different view with respect to Chief Martin’s affidavit which deals with the DRPS’ allegations of breach of natural justice and reasonable apprehension of bias. While I have concerns with the evidentiary value of Chief Martin’s allegations in respect of the “adversarial relationship” between the Commission and the DRPS which I will discuss shortly, I am prepared to admit it as part of the record on judicial review on the basis of general background and that it deals with DRPS’ allegations of procedural fairness not otherwise apparent on the record.

Analysis

Did the Commission breach its duty of procedural fairness?

[50] The duty of procedural fairness is flexible and context specific. In Baker, at paras. 21-27, the court set out a non-exhaustive list of five factors that inform the content of the duty of fairness: the nature of the decision made and the process followed in making it; 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 choices of procedure made by the administrative decision-maker.

[51] The DRPS submits that in reaching its May 12, 2020 decision directing Chief Martin to withdraw the charges against Sgt. Mastroianni, the Commission breached its duty of procedural fairness to it by:

i. failing to permit it to know the case against it;

ii. not providing it an opportunity to make submissions on material issues;

iii. denying it the right to be heard; and

iv. refusing to consider submissions it made on other issues.

[52] The DRPS submits having regard to the Baker factors, the Commission owed it a “high degree” of procedural fairness in making its decision. The process followed, together with the powers of the Commission and the nature of its decision all illustrate the judicial nature of the decision.

[53] In response, the Commission submits that based on an analysis of the Baker factors, the duty of procedural fairness required no more than what was provided – notice of the Commission’s concerns and an opportunity to respond. The process followed by the Commission did not closely resemble a judicial process.

[54] The Commission further submits that there was no breach of the duty of procedural fairness in respect of its May 12, 2020 decision. The DRPS was given notice of the issues it was concerned about, given more than sufficient time to provide its submissions and its submissions were taken into consideration in coming to the May 12, 2020 decision.

[55] Contrary to the DRPS’ submissions, a consideration of the Baker factors establishes, in my view, that the degree of procedural fairness owed by the Commission in respect of the decision under review is at the lower end of the spectrum.

[56] The decision under review was pursuant to s. 78(1) of the Act which provides:

The Commission may, in respect of a complaint made by a chief of police under section 76 or by a board under s. 77, at any stage in the complaint process direct the chief of police or board, as the case may be, to deal with the complaint as it specifies or assign the review or 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.

[57] The Committee’s decision concerns the process the DRPS must follow under s. 76 of the Act as opposed to a substantive interest in prosecuting Sgt. Mastroianni. Contrary to the DRPS’ submission, the Commission’s direction does not finally determine the disciplinary proceedings against Sgt. Mastroianni. The DRPS is not precluded from proceeding properly against Sgt. Mastroianni, provided the Board concludes the delay occasioned in serving the notice of hearing is reasonable, in accordance with s. 87(17) of the Act.

[58] In respect of the statutory scheme of the Act, section 22(3) of the Act specifically provides that the Statutory Powers Procedure Act (“SPPA”) does not apply to the Commission, except to a hearing conducted by the Commission under subsection 23(1), 25(4), (4.1) or (5), 47(5), 69(8), 77(7), 87(2), (3) or (4) or 116(1) of the Act.

[59] Further, section 78(1) does not impose any procedural requirements, in contrast to the other sections of the Act noted above in s. 23(3). This, together with the exclusion of the provisions of the SPPA suggests, as noted in Forestall v. Toronto Police Services Board, 2007 31785 (ON SCDC) at para. 46, that a proceeding pursuant to s. 78(1) does not require “more than minimal rights of procedural fairness.”

[60] The DRPS submits that the process followed by the Commission of the initial notice, request for documentation, together with its findings of fact and mixed fact and law illustrate the judicial nature of the decision. I disagree. Having regard to the Act and specifically s. 78 together with the process it followed, the Commission was not exercising an adjudicative power to hear and decide the case before it. Rather, it was exercising its broad discretionary power under s. 78(1) of the Act to direct a chief of police to deal with a complaint in accordance with s. 76.

[61] The DRPS submits that it had a legitimate expectation of meaningful participation and transparency where the Commission purports to interfere in its disciplinary proceedings which includes the right to have sufficient disclosure to make informed submissions. Based on the record, I am satisfied it received that. It was given notice of the Commission’s initial concern under s. 76 regarding the proceeding against Sgt. Mastroianni; given an opportunity to respond and provide documentation; and then given notice of the Commission’s more detailed concerns regarding s.76 and permitted to make further submissions, which it did.

[62] The DRPS further submits that while the Commission stated it would consider written submissions and that extensions would be granted in extenuating circumstances, it failed to follow such procedure.

[63] That submission ignores the evidence. While the Commission’s February 27, 2020 letter requested a response within 15 days and stated that if there were extenuating circumstances requiring more time, “please notify the Commission at your earliest convenience”, on March 11, 2020, the Chief requested an extension to March 20, 2020 to deliver written submissions. The request was granted by the Commission on March 12, 2020 with the specific statement: “No further extension requests will be considered or granted.”

[64] As noted earlier, on March 20, 2020, Chief Martin requested a further extension to March 27, 2020 to file his submissions. The reason given was March was busier than usual due to the onslaught of COVID-19 and Chief Martin was in self-isolation until March 27, 2020. That request was subsequently turned down by the Commission and the DRPS filed detailed submissions on March 23, 2020.

[65] The DRPS submits that the Commission denied it the right to be heard by refusing its “reasonable request” for an extension of time beyond March 20, 2020. But the Commission had already granted it one extension and in so doing clearly advised it that no further extensions would be granted.

[66] Given the Commission’s oversight role and its concern of a possible failure to meet statutory preconditions for an ongoing discipline hearing, I do not consider the Commission’s refusal to grant a further extension to be unreasonable or procedurally unfair. It first raised the issue with the DRPS, more than two months earlier, on January 14, 2020, and then clearly set out its concerns in its February 27, 2020 letter. It initially provided 15 days for written submissions and, at DRPS’ request, extended the deadline by a week. The DRPS had more than enough time by March 20th to provide its submissions. In any event, I consider the matter somewhat moot given the DRPS was able to provide detailed submissions on March 23, 2020.

[67] Nor do I accept the DRPS’ submissions that in reaching its decision, the Commission did not permit it to know the case against it, did not provide it an opportunity to make submissions on material issues, denied it a hearing and refused to consider its submissions on material issues.

[68] The Commission’s letter of January 14, 2020 raised its concern about the discipline proceedings against Sgt. Mastroianni based on s. 76 of the Act. As noted, its February 27, 2020 letter clearly set out those concerns: either Chief Martin failed to investigate his complaint as required by s. 76(1) or he failed to get the required Board approval and notify the Commission as required by s. 76(4) and invited the DRPS’ response which it provided.

[69] As noted, the Commission gave the DRPS and Chief Martin ample time to make submissions which they did in the letter of March 23, 2020. That letter was lengthy and responded specifically to the s. 76 concerns raised by the Commission, complete with case citations and Ontario Regulation 73/20 made under the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 on March 20, 2020 (the “Emergency Order”). Tellingly, apart from its submissions concerning procedural fairness and bias, the DRPS’ factum before us raises no new substantive issues that were not addressed by it in its submission of March 23, 2020.

[70] Finally, I do not accept the DRPS’ submission that the Commission failed to consider its March 23, 2020 submissions. The May 12, 2020 decision specifically states that that Commission, “... has considered any received material” which includes the DRPS’ March 23, 2020 submissions.

[71] For the above reasons, I dismiss the DRPS’ allegations that the Commission denied it natural justice or breached its duty of procedural fairness to either it or Chief Martin in respect of the May 2, 2020 decision.

Reasonable Apprehension of Bias

[72] The DRPS submits that the Commission’s decisions and conduct towards Chief Martin and the DRPS disclose a reasonable apprehension of bias. In support, it relies on its allegations of the denial of natural justice and procedural fairness as well as the allegations in the affidavit of Chief Martin.

[73] The test for reasonable apprehension of bias of an administrative decision-maker concerns the reasonably informed bystander. As stated by de Grandpré J., writing in dissent, in Committee for Justice and Liberty at p. 394:

… the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining the required information … [T]hat test is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”

See too: Baker, paras. 45-48.

[74] As noted in Baker at para. 47, citing Newfoundland Telephone v. Newfoundland (Public Utilities Board), 1992 84 (SCC), [1992] 1 S.C.R. 623, 89 D.L.R. (4th) 289, the standards for reasonable apprehension of bias may vary depending on the context and the type of function performed by the administrative decision-maker. There is a strong presumption of impartiality for administrative decision-makers discharging their statutory duties. In order to overcome the presumption, the party alleging a reasonable apprehension of bias must establish the presence of “serious grounds.” The inquiry is “highly fact-specific” and contextual: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at paras. 59, 76 and 77.

[75] Chief Martin’s evidence does not support the allegations that the Commission’s decision or conduct created a reasonable apprehension of bias. In his affidavit, Chief Martin refers to what he says is “an adversarial relationship between the Commission and the Service” stemming from the Commission’s interim Order appointing the Administrator on May 23, 2019 and his subsequent legal challenge concerning it. He further states he has concerns with respect to “institutional bias” at the Commission. Much of the information that follows in support of that allegation concerns people and events surrounding the issue of the interim Order and is based on the Chief’s “understanding” without providing the source of the information apart from a news release, a media article and an excerpt from the transcript of the disciplinary hearing of another DRPS officer.

[76] Given the Commission’s role as a police oversight body which may make several decisions affecting a police service, some of which may not be agreed with by the police service, an adversarial relationship can easily arise. But the fact that there is litigation between the parties does not by itself establish a reasonable apprehension of bias, especially given the Commission’s oversight role.

[77] Nor, in my view, do Chief Martin’s concerns of institutional bias. Where institutional bias is alleged, the test requires that the well-informed person, viewing the matter realistically and practically -- and having thought the matter through -- would have a reasonable apprehension of bias in a substantial number of cases: 2747-3174 Québec Inc v Québec (Régie des permis d’alcool), 1996 153 (SCC), [1996] 3 SCR 919, 140 D.L.R. (4th) 577, at para. 44.

[78] The DRPS has both the evidentiary and persuasive burden to establish that a reasonable apprehension of bias would result in a substantial number of cases where institutional bias is alleged. It has met neither burden. Its allegations of institutional bias are based on alleged relationships among certain individuals. Further, there is no evidence that any of the individuals mentioned were part of the Commission or involved in the May 2, 2020 decision.

[79] As the Commission points out, the Chief’s allegations concerning institutional bias appear to be related to allegations raised by him in his judicial review application of the Commission’s May 23, 2019 Order appointing the Administrator which this court found were “based on speculation and innuendo.” See: Martin v. Ontario Civilian Police Commission, 2020 ONSC 1116 (Div. Ct.) at para. 105.

[80] For the above reasons, I dismiss the DRPS’ allegations of reasonable apprehension of bias. Having regard to the context and function of the Commission, in my view, a reasonable and right minded bystander informed of all the facts, including Chief Martin’s allegations in his affidavit, would not conclude that there was a reasonable apprehension of bias on the part of the Commission in respect of its May 2, 2020 direction to Chief Martin.

Was the Commission’s decision of May 2, 2020 unreasonable?

[81] The DRPS submits the Commission’s May 2, 2020 decision was unreasonable on the basis the Commission:

Erred in contravening the Emergency Order;
Erred in finding that the DRPS failed to comply with ss. 76(1), (4) and (9) of the Act; and
Erred in permitting a collateral attack on the disciplinary proceedings against Sgt. Mastroianni.

The Emergency Order

[82] The DRPS submits that the decision not to grant it an extension to make submissions was unreasonable because the Commission’s March 20, 2020 deadline was suspended pursuant to the Emergency Order.

[83] Section 2 of the Emergency Order provides:

Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday March 16, 2020.

[84] The DRPS submits the Commission is a Government of Ontario Tribunal and accordingly, the deadline it set for submissions was subject to the Emergency Order and suspended retroactively to March 16, 2020. Further, the Commission did not exercise its discretion under the Emergency Order not to suspend the deadline. Accordingly, the decision is unreasonable.

[85] In my view, the Emergency Order did not apply to the Commission’s March 20, 2020 deadline for submissions. As noted, the Emergency Order applied only to limitation periods or steps in a proceeding established by a “provision of any statute, regulation, rule, by-law or order of the Government of Ontario.” I do not consider that the Commission’s deadline which was set in its March 12, 2020 letter was established by “provision of any statute, regulation, rule, by-law or order” of the Government. It was simply a procedural deadline for submissions set out in a letter. The Commission’s deadline was not a limitation period, and its decision was not made in the context of a “proceeding.”

[86] In the alternative, even if the Emergency Order did apply to the Commission’s investigation, I consider that the Commission’s March 23, 2020 letter denying the DRPS’ request for a further extension, in light of its earlier, clear statement that no further extensions would be allowed, to be an exercise of its discretion under the Emergency Order excluding its application.

[87] Further, and in any event, the Emergency Order was issued at 5:30 pm on Friday March 20, 2020, after the close of business. Based on the clear terms of the extension, the DRPS should have filed its submissions on March 20th, before the Emergency Order was issued. Rather than taking the position that the Emergency Order suspended the deadline, the DRPS proceeded to provide its submissions the next business day, Monday, March 23, 2020. Having done so, and as noted, I consider DRPS’s argument to be moot.

[88] In such circumstances, any failure of the Commission to follow the Emergency Order, does not render the May 2, 2020 decision unreasonable.

Sections 76(1), (4) and (9) of the Act

[89] The DRPS submits that the Commission unreasonably decided that its breached ss. 76(1), (4) and (9) of the Act. It submits that applying the “modern principle” of statutory interpretation, Mr. Roasiak’s investigation and report satisfied the purpose of the investigation and reporting requirements of s. 76(1). Further, based on the text, context and purpose of s. 76(4), it is clear that subsection did not apply in the circumstances.

[90] To repeat, s. 76(1) of the Act provides as follows:

A chief of police may make a complaint under this section about the conduct of a police officer employed by his or her police force, other than the deputy chief of police, and shall cause the complaint to be investigated and the investigation to be reported on in a written report.

[91] A plain reading of s. 76(1) requires that once a complaint is made, the chief of police “shall” cause it to be investigated. However, having made the complaint against Sgt. Mastroianni, Chief Martin did not cause it to be investigated.

[92] The Commission submits that Mr. Rosiak’s investigation and report do not satisfy the requirements of s. 76(1). I agree. The RITW investigation was completed prior to Chief Martin’s complaint against Sgt. Mastroianni. Further, an RITW investigation is not a s. 76 investigation because it is conducted pursuant to a different statutory regime (the Occupational Health and Safety Act) and with a different purpose (determining whether the RITW was breached).

[93] Sgt. Mastroianni was charged with three counts of discreditable conduct under ss. 2(1)(a)(ii), 2(1)(a)(iv) and 2(1)(a)(xi) of the Code. The Rosiak report did not refer to the above grounds or any grounds of misconduct. Rather, it concluded that Sgt. Mastroianni’s actions “constituted sexual harassment as defined by the Occupational Health and Safety Act and contravened the DRPS’ RITW policy.”

[94] Further, s. 76(9) is clear that a hearing may only be commenced after the investigation is completed and review of the written report submitted to the chief. Here, there was no s. 76(1) investigation nor was any written report concerning it ever provided to Chief Martin.

[95] As noted in Gough v. Peel Regional Police Service (2009), 2009 12112 (ON SCDC), 248 O.A.C. 105, 309 D.L.R. (4th) 439 (ON SCDC) at paras. 28 to 31, it has long been held that the legislative conditions concerning the power of one police officer to proceed with disciplinary action against another must be strictly complied with.

[96] As the Commission points out and I agree, while an RITW investigation may result in a recommendation that discipline under the Act be pursued, it does not exempt the chief of police from following the mandatory process set out in s. 76 of the Act.

[97] Nor do I consider that the Commission erred in its conclusion that Chief Martin was in breach of s. 76(4). Part V of the Act establishes a scheme in which police discipline matters are dealt with internally by a police force. While there is no express statement in s. 76 that investigations be conducted internally, when ss. 76(1), (4) and (6) as well as s. 78(1) are read together harmoniously with the purpose of Part V of the Act, I consider the Commission’s interpretation that a s. 76(1) investigation is to be conducted internally to be reasonable.

[98] That said, while the May 2, 2020 decision referred to each of s. 76(1), (4) and (9) of the Act in support of its decision, it is clear that the basis for its decision was its conclusion that by not conducting an investigation of the allegations in the complaint, Chief Martin had no jurisdiction under s. 76(9) to hold the hearing.

Collateral attack

[99] Finally, I do not consider that the Commission’s decision constituted a collateral attack of the disciplinary proceedings against Sgt. Mastroianni. Section 78(1) of the Act grants the Commission a broad discretion to “at any stage in the complaint process direct the chief of police … to deal with the complaint as it specifies.” Section 76 deals with the complaint process including holding a hearing.

[100] For the above reasons, therefore, I am satisfied the Commission’s May 2, 2020 decision directing Chief Martin to withdraw the charges against Sgt. Mastroianni was reasonable. It is internally coherent and follows a rational chain of analysis that is justified in relation to the facts and the provisions of ss. 76 and 78 of the Act.

Conclusion

[101] The DRPS’ application is therefore dismissed in its entirety.

[102] In accordance with the parties’ agreement, no order as to costs.

L.A. Pattillo J.

I agree _______________________________

Baltman J.

I agree _______________________________

Kristjanson J.

Released: May 3, 2021