Wendt v. Office of the Independent Police Review Director, 2022 ONSC 166

CITATION: Wendt v. Office of the Independent Police Review Director, 2022 ONSC 166

DIVISIONAL COURT FILE NO.: 269/71

DATE: 20220107

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse, Lederer JJ.

BETWEEN:

Sandra Wendt

Applicant

– and –

Office of the Independent Police Review Director

Respondent

Kenneth Wise, Counsel for Applicant

Morvarid Shojaei, Counsel for Respondent

HEARD by videoconference in Toronto on January 4, 2022

REASONS FOR JUDGMENT

Backhouse J.

Overview

[1] The Applicant seeks judicial review of a decision of the Office of the Independent Police Review Director (“OIPRD”) which decided not to proceed with her complaint against members of the Toronto Police Service (“TPS”).

[2] The OIPRD is responsible for managing public complaints against police in Ontario. The Applicant filed a complaint with the OIPRD in which she stated that unknown individuals were following her, breaking into her home and car, and hacking her Rogers system. She stated that she reported these incidents to the TPS and Rogers, but they failed to assist. She complained that TPS officers discriminated against her by referring to her as “EDP” or Emotionally Disturbed Person in the police reports. She also took issue with an officer inquiring about whether she had been to see her doctor yet when she attended at the local police station to inquire about her case.

[3] The OIPRD concluded in its April 17, 2020 decision that it was not in the public interest to proceed with the Applicant’s complaint because, given the nature of her allegations, an investigation was unlikely to result in reasonable grounds to establish misconduct.

[4] The Applicant seeks to have the decision quashed and the matter remitted for fresh consideration. The Applicant asserts that the OIPRD unreasonably failed to consider whether the police discriminated against her and whether the police failed to investigate her concerns because of her perceived mental disability. She further asserts that the reasons were inadequate, making the decision unreasonable.

[5] For the reasons set out below, the application is dismissed.

Background

Public Complaints Process

[6] With a few exceptions, all members of the public may make a complaint to the OIPRD about the police in Ontario. The Director is required to review every public complaint made.[^1] The Police Services Act establishes that all public complaints are presumed to be screened “in”, unless the Director exercises his legislative discretion to screen it “out.”[^2] The grounds for screening “out” a complaint include if it is “not in the public interest to be dealt with, having regard to all the circumstances.”[^3]

[7] The OIPRD Rules of Procedure provide guidelines for screening of complaints. Specifically, Rule 6 establishes that in screening a complaint, the Director may consider various factors including - but not limited to - the impact of the decision on the public confidence in the oversight system, the seriousness of the compliant, and whether the complaint, on its face, discloses misconduct.[^4] Rule 6.5 provides that it is not in the public interest to investigate a complaint that does not on its face disclose misconduct. This is because proceeding with an unwarranted investigation into unmeritorious allegations that have no chance of success will tax the public complaints system, cause prejudice to other parties, and inevitably damage public confidence in the police oversight system.[^5] If a complaint is “screened out”, the file will be closed. The OIPRD notifies the complainant and the chief of police of the Director’s decision and the reason(s) for screening out the complaint.[^6]

[8] If a complaint is screened in, the matter will proceed to an investigation to determine whether misconduct can be substantiated. If the investigation finds misconduct, the matter may proceed to a disciplinary hearing.[^7]

OIPRD Decision Letter

[9] In its April 17, 2020 decision letter screening out the Applicant’s complaint, the OIPRD advised her that based on the information provided in the complaint, it appeared that the police responded, took her reports and provided her with occurrence report numbers. It advised that there was no information to believe the officers acted maliciously or in bad faith. It was determined that there was no information to believe the reference to “EDP” in the police report was discriminatory or done for any improper purpose.

Documents produced by Applicant not before the Director

[10] On this application, the Applicant filed police occurrence reports for the sake of completion that were not before the OIPRD when her complaint was considered. These reports showed that the TPS did more than simply prepare reports and give an occurrence number in relation to incidents that reportedly had occurred between 2017 and 2019. Specifically the reports showed that the police responded to the Applicant’s concerns by attending at her premises on a number of occasions. They did an investigation, saw no signs of forced break-in, contacted Rogers with respect to the Applicant’s allegation that her security camera had been hacked and were advised by Rogers that they had attended at the Applicant’s residence and there was not any problem with her security camera. The police also ran a search of a licence plate number and took steps to determine the owner of a vehicle the Applicant felt was associated with the suspicious behaviour but the search did not yield any evidence of harassment or criminal activity.

[11] Both parties consented to this court considering these reports not before the OIPRD to supplement its reasons in assessing the reasonableness of the decision. The Applicant submits that although the reports show that the police conducted some investigation, they show that the police did not do enough. The Respondent submits that none of the reports submitted by the Applicant show that the OIPRD’s decision was unreasonable. The Respondent submits that the reports show the inappropriateness of the remedy requested by the Applicant.

Standard of Review

[12] The parties agree that the standard of review is reasonableness.

Analysis

Issue 1-Was the OIPRD’s decision that the complaint did not disclose misconduct unreasonable?

[13] In her complaint, the Applicant raises that both the reference to “EDP” in the police report is discriminatory and that she was discriminated against and her complaints not taken seriously because of a perceived mental disability. She submits that the OIPRD’s reasons failed to explain why the allegations set forth in her complaint did not afford “reasonable grounds” to believe that “misconduct” could be established.

[14] The Decision Letter advised that there was nothing in the complaint that indicates that the officer acted maliciously and for an improper purpose when he wrote in a report that the Applicant was “EDP” and therefore it would not be likely to result in a finding that there are reasonable grounds to believe misconduct occurred.

[15] Misconduct is not restricted to circumstances where malice or an improper purpose is found to exist. It is unnecessary to prove that there was an intention to discriminate to support a finding that discrimination has occurred. However, for the police to use “EDP” to describe a member of the public bas been found not to be inappropriate or discriminatory. In J.M. v. Toronto Services Board, the Human Rights Tribunal of Ontario found that classification of an individual as “EDP” by the 911 call-takers and TPS officers was not a form of discrimination. At para 62, the Tribunal held:

…it is not discriminatory for the police to assess people as EDP. Identifying someone as EDP is determining whether the person is in a state of crisis or has a mental health disability. Without this assessment, the police will not know whether members of the pubic require accommodation in the provision of services. Knowing someone has a mental health issue is critical to ensuring that they are provided with the necessary supports by the police. This is important not only for the safety of officers…, but also for the safety of the individual who is requesting police services, as well as for members of the public.[^8]

[16] The OIPRD’s decision that the complaint did not disclose misconduct on account of the police referring to the Applicant as “EDP” was not unreasonable.

[17] With respect to the Applicant’s allegation that the police did not investigate her complaints because of her perceived mental disability, the Decision Letter concluded that the police had responded, took the Applicant’s reports and also provided her with occurrence report numbers and that this complaint would not likely result in a finding of misconduct.

[18] The Applicant submits that the OIPRD’s findings suggest that the sum total of the obligations of the TPS was to simply prepare a report on a complaint from a member of the public and thereafter, tender an occurrence number. It is submitted that this ignores the broad mandate of the TPS to investigate crimes reported to them and allows stereotypical and prejudicial inferences and reasoning by the police to colour their level of service and overall investigations to persons with perceived mental disabilities.

[19] Normally the record on judicial review is restricted to the documents which were considered by the decision-maker below. However, in this case, it is the Applicant who seeks to expand the record before this court. It is done on consent. Moreover, if this matter was sent back to the OIPRD for reconsideration, the record would inevitably be expanded to include the additional reports which the Applicant asks us to consider. Thus, in the unique circumstances of this case, it is appropriate for this court to consider the expanded record in making its decision on whether the remedy sought by the Applicant (that the decision be quashed and a new hearing ordered) should be granted.

[20] While the Applicant was dissatisfied with the response she received from the police, there was nothing in the complaint to support that the officers neglected their duties or that she received a lower level of service because of a perceived mental disability. When the reports in the expanded record are considered, they add additional support for a finding that the police did investigate and undermine the Applicant’s argument that she received differential treatment and that her complaints were not taken seriously because of her perceived mental disability.

[21] The OIPRD’s decision that the complaint did not disclose misconduct was not unreasonable.

Issue 2-Was the Director’s decision unreasonable due to inadequate reasons?

[22] The Applicant submits that the sum total of the OIPRD’s reasoning not to proceed with the complaint was that the TPS responded to her complaints by taking reports and providing occurrence numbers to her and the finding that the reference in the reports to a perceived mental disability of the Applicant was not “malicious” or done for an “improper purpose”. She submits that this does not provide a reasonable explanation for why the OIPRD determined that the complaint did not disclose misconduct.

[23] The Applicant submits that the OIPRD’s finding that there are no reasonable grounds to believe misconduct will be established is devoid of any substantive analysis of the test for “misconduct” set out in Code of Conduct applicable to the police[^9].

[24] The Applicant further submits that the decision unreasonably permits police officers to bypass their obligations to persons whom they perceive as having a mental disability, by limiting their obligations to such persons to the taking of reports and providing occurrence numbers, without any duty to investigate.

[25] In Endicott v. Ontario, the Ontario Court of Appeal noted that the Police Services Act gives the Director broad discretion to decide not to deal with a complaint and to do so before any investigation as provided in s.61 is undertaken. No hearing or proceeding is contemplated at what is described as the “weeding out stage”, which does not require a hearing, or lengthy reasons.[^10] Contrary to the Applicant’s argument, there was no requirement for the Director at the screening stage to engage in a legal analysis of the concept of misconduct. The court in Vavilov made it clear that “administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge – nor will it always be necessary or even useful for them to do so.”[^11]

[26] In Wall v. Office of the Independent Police Review Director, the Court held that the Director’s reasons for screening out a complaint under s.60(2) of the Police Services Act need not be lengthy or complex. But they must at least answer the question “Why?” The complainant and the court (for purposes of review) are entitled to know the rudiments of the explanation for why the complaint has been screened out.[^12]

[27] The Applicant’s argument that the reasons are inadequate and the decision unreasonable dissolves when the expanded record is taken into account. The additional investigations disclosed in the reports support the finding that the officers did investigate her concerns and do not support that the police neglected their duties or acted in a discreditable manner towards the Applicant. The reasons cannot be said to be inadequate when supplemented by the expanded record. The reports reinforce the reasonableness of the Director’s decision that the Applicant’s complaint, even if investigated, could not have resulted in a finding of misconduct against members of the TPS.

Conclusion

[28] The Applicant has not established that the OIPRD’s decision was unreasonable. In the result, the application for judicial review is dismissed.

[29] Neither party sought costs of this application and accordingly, none are awarded.

Sachs

I agree _______________________________

Backhouse J.

I agree _______________________________

Lederer J.

Date: January 7, 2022

[^1]: Police Services Act, R.S.O. c P.15, s.59(1). [^2]: Police Services Act, s.59(2). [^3]: Police Services Act, s.60(4) 3. [^4]: OIPRD Rules of Procedure, July 7, 2016, Rules 6.1-6.5. [^5]: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363 at para.30. [^6]: Police Services Act, ss.60(7). [^7]: Police Services Act, s.68. [^8]: J.M. v. Toronto Police Services Board, 2017 HRTO 1087, at para 62. [^9]: Schedule to O Regulation 268/10 General, Part VII, Police Services Act, R.S.O. c P.15. [^10]: Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363 at paras 7 and 28. [^11]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 110. [^12]: Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, paras 49, 62-63.