Court File and Parties
CITATION: Wells v. Cornwall Police Service, 2021 ONSC 8046
COURT FILE NO.: DC-21-2671
DATE: 2021-12-07
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Constable Kevin Wells, Applicant
AND
Cornwall Police Service, Respondent
BEFORE: The Honourable Justice C.T. Hackland
COUNSEL: Lawrence Greenspon and Graham Bebbington, for the Applicant
David Migicovsky and Veronica Blanco Sanchez, for the Respondent
Valerie Crystal, for Ontario Civilian Police Commission
HEARD: November 12, 2021 (by zoom videoconference)
ENDORSEMENT (Motion for a stay Pending Judicial Review)
[1] The moving party, the applicant Constable Kevin Wells, seeks a stay of his dismissal from the Cornwall Police Service pending the hearing of his application to the Divisional Court for Judicial Review of a decision of the Ontario Civilian Police Commission (the OCPC) in which they dismissed his appeal from a Hearing Officer’s decision. The Hearing Officer conducted a hearing under section 76(9) of the Police Services Act, R.S.O. 1990, c. P.15 (the PSA), in which he found Officer Wells guilty of two counts of discreditable conduct, one count of neglect of duty and one count of deceit.
[2] The Hearing Officer ordered Constable Wells’ dismissal from the Cornwall Police Service on October 7, 2020 in the following terms: “Pursuant to section 85(1)(b) of the PSA, I order Cst. Wells dismissed from the Cornwall Police Service in seven days unless he resigns before that time”. The subsequent OCPC decision, dated October 29, 2021, ordered “Pursuant to section 87(8)(a) of the PSA the Commission confirms the findings of guilt on the misconduct charges and the penalty imposed by the Hearing Officer”.
[3] The respondent Cornwall Police took the position that Constable Wells’ employment ended 7 days after the stay was lifted on the Hearing Officer’s decision, which decision had been stayed pending appeal to the OCPC under section 25(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22,. The Hearing Officer’s order was no longer stayed once the appeal decision of the OCPC was released on October 29, 2021.
[4] The applicant’s counsel promptly advised counsel for the respondent that Constable Wells intended to seek judicial review of the OCPC decision and sought assurances that the applicant’s employment would not be terminated until the Judicial Review application could be heard. Applicant’s counsel promptly issued the Judicial Review Application herein, on November 5th, 2021. Such assurances were not forthcoming and on November 9, 2021 counsel for the applicant served a “Notice of Urgent Motion for Stay of Penalty Pending Judicial Review.”
[5] The significance of whether the applicant’s employment terminated just before the stay motion could be heard was ostensibly because the applicant’s employment status could be determinative of whether the applicant would need to seek a mandatory injunction (to reinstate his employment) or simply a prohibitory injunction (to prevent his termination). The case law indicates that a mandatory injunction requires the more onerous ‘strong prima facie case’ test to be satisfied.
[6] I find that the present application is not frivolous and there are substantial issues to be tried, as identified in the Notice of Application for Judicial Review and in the applicant’s factum. The applicant’s employment with the Cornwall Police was terminated for moderately serious offences, but in the context of a discipline record which the Hearing Officer found impacted the employer’s entitlement to continued confidence in the applicant’s work as a police officer. A much more contentious issue is whether a reviewing court would interfere with the comprehensive analysis in the Hearing Officer’s decision and in the decision of the OCPC, which attract a deferential standard of review, being an assessment of reasonableness, as explained by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[7] In view of the disputed timing issues as to exactly when the applicant’s employment ended, as referred to above, I do not think it appropriate to enter into an assessment of the strength of the applicant’s case for judicial review, beyond what I have observed in the previous paragraph. As explained below, I am of the view that the appropriateness of granting a stay in this case turns on considerations of balance of convenience.
Balance of Convenience
[8] The respondent points out that Constable Wells has been under suspension, while receiving full pay and benefits, since September 18, 2018, a period of nearly three years and two months until the termination of his employment. His salary and benefits paid during this period total approximately $385,403. The stay being sought will not return the applicant to his active duties but would presumably re-instate his salary and benefits.
[9] In the applicant’s affidavit, he speaks of his love for and dedication to policing since he joined the police force in January of 2002 and the emotional impact of losing his chosen career. He says that the offences he was convicted of did not cause injury to anyone nor pose any threat to public safety. He also observes “if there is no stay of penalty, I will not be able to appeal the decision by the Ontario Civilian Police Commission, as I will not be able to financially fund the Application for Judicial Review.”
[10] The applicant’s counsel put forward a somewhat different argument in his factum and oral submission, based on the harm to Constable Wells’ reputation and to his effectiveness as a police officer arising from a termination of his employment, even if he is ultimately re-instated with full back pay.
If a police officer is terminated, appeals successfully and is reinstated, he or she cannot truly return to do the job required of a police officer. The public would be fully aware that the officer had been fired, and then re-instated. It would create immeasurable difficulty in terms of being in an authoritative position in the community, not to mention the practical realities of having to testify in court. The problems which would result from being an on-duty police officer post termination and re-instatement, considering the nature of the work and the segments of the population dealt with by a police officer, would be endless. For a person who is part of the criminal justice system to be terminated, and if successful on appeal, re-instated, the damage is irreparable.
[11] The respondent points out that the applicant had been suspended from his duties for over 3 years at the time of his dismissal and there has been considerable media coverage in Cornwall about his current discipline issues. Moreover, the applicant has a previous discipline record in which he was demoted to 4th class constable and he was working his way back to first class constable (he was a 2nd class constable) when the current charges arose. The affidavit evidence suggests the applicant is not in unusually difficult financial circumstances as a single person without dependants and with at least one mortgage free property.
[12] The respondent also raises a policy argument arising from amendments to the Police Services Act (the PSA). In order to bring about finality to certain proceedings under the PSA, the Ontario legislature amended the PSA in 2007, specifically to remove officers’ right to appeal OCPC decisions made pursuant to section 76 (previously section 70) to the Divisional Court. As appeals to the Divisional Court were abolished in this category of cases, sub-section 25(1) of the Statutory Powers Procedure Act (SPPA) no longer applied (s. 25(1) of the SPPA provides that an appeal from the decision of a tribunal operates as a stay of the decision). The right to seek judicial review remained however but seeking judicial review does not operate as a stay of the decision.
[13] Since 2007 then, OCPC decisions pertaining to officer discipline pursuant to section 76 of the PSA are final, subject only to judicial review. Consequently, there is no longer a right to an automatic stay under the SPPA once the OCPC has made a final determination. The respondent therefore contends that the court should not routinely stay OCPC orders in s. 76 discipline cases (such as the present matter), in the absence of clear justification for doing so. To grant routine stays would contravene the policy behind the legislative changes. The respondent says this is a routine case in that there are no special circumstances justifying a stay, let alone extraordinary hardship of any kind, in the applicant’s circumstances. I agree with this submission.
[14] Both parties have provided the court with cases which address the granting of stays of termination decisions in employment relationships, office holders and similar matters. I do not think it is of great assistance to canvass these cases in detail as they all turn on their own facts, although there is a discernable trend to decline to grant stays in such situations.
[15] I accept the applicant’s submission that s. 4 of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1, grants a broad discretion to the court to make interim orders pending the final determination of applications. The section states “on an application for judicial review, the court may make such interim order as it considers proper pending the final determination of the application”. The case law is well settled that the applicable tests are to be found in the Supreme Court decisions in RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), 1994 1 SCR 311, and R v. CBC, 2018 SCC 5, 2018 SCC5.
[16] In terms of the issue of irreparable harm, if the applicant is not restored to his position, the consequences will be essentially financial at this point, since his suspension from active duty will remain. If he succeeds in his application for judicial review, his lost salary and benefits will likely be restored. The application for judicial review will be heard within a 9-12 month time frame in this jurisdiction. As noted previously, the reputational damage to the applicant that arises from these proceedings has already occurred from the initial conviction before the Hearings Officer and arguably, from the first set of disciplinary charges where he pled guilty to several offences. From the perspective of the Cornwall Police, the applicant’s continuation on salary would result in a further financial outlay, which may be unrecoverable in all the circumstances and an inability to recruit a replacement officer while the applicant remains an employee.
[17] In summary, I am not persuaded that the balance of convenience, including considerations of likely irreparable harm to the interests of each party, weigh in favour of staying the decision to terminate the applicant’s employment with the Cornwall Police, pending argument of the Judicial Review application herein. The stay motion is primarily only relevant to financial issues at this point and if the applicant is successful, his lost salary and benefits will be restored. The negative effects on the applicant from the discipline proceedings and his conviction on the charges he faced have already occurred.
[18] The application for a stay of the decision of the OCPC pending argument of the judicial review application is dismissed. The costs of this motion are reserved to the panel hearing the application on its merits.
Date: December 7, 2021
CITATION: Wells v. Cornwall Police Service, 2021 ONSC 8046
COURT FILE NO.: DC-21-2671
DATE: 2021-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Constable Kevin Wells, Applicant
AND
Cornwall Police Service, Respondent
COUNSEL: Lawrence Greenspon and Graham Bebbington, for the Applicant
David Migicovsky and Veronica Blanco Sanchez, for the Respondent
Valerie Crystal, for Ontario Civilian Police Commission
ENDORSEMENT (motion for a stay pending judicial review)
Justice Charles T. Hackland
Released: December 7, 2021