CITATION: Komer v. Attorney General of Ontario, 2022 ONSC 2572

DIVISIONAL COURT FILE NO.: 21-000000-25-0000

DATE: 2022/04/29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: William david Komer, Applicant

AND:

attorney general of ontario and the office of the independent police review director, Respondents

BEFORE: Sachs, Stewart and Newton JJ.

COUNSEL: William David Komer, on his own behalf Pamela Stephenson Welch, for the Respondents

HEARD at London by videoconference: April 26, 2022

ENDORSEMENT

H. Sachs J.

[1] The Applicant seeks to judicially review the decision of the Office of the Independent Police Review Board (“OIPRD”) dated November 3, 2021 that it would not be in the public interest to investigate his complaint about the conduct of a number of officers of the London Police Service (“LPS”).

[2] The Applicant attended the hearing before us with counsel whom he had consulted and was there to assist him. However, he made the oral submissions himself.

[3] The Applicant filed his complaint on October 12, 2021. In his complaint he alleged that officers of the LPS discriminated against him on the basis of his gender. He noted that he had made valid complaints to the police about his spouse’s conduct that he alleged amounted to criminal activity. He reported that he had been locked out of his home and left unable to retrieve his belongings. Instead of assisting him the officers did not investigate his complaints and ordered him not to attend at his home and not to communicate with his spouse. This was in stark contrast to the way that the police responded to the complaints that his spouse made against him. According to the Applicant, his treatment by the police was part of a systemic problem of police discriminating against male victims of intimate partner abuse.

[4] Upon receipt of the Applicant’s complaint, the OIPRD Case Management Unit (CMU) reviewed the complaint, sought legal advice, and recommended that it should be “screened in” and sent for further investigation. The complaint was then transferred to the OIPRD Investigation Unit. Further investigation was done and the OIPRD Manager of Investigations recommended that the Applicant’s complaint be screened out pursuant to a Director’s Resolution. On behalf of the Director, the Deputy Director determined that the Applicant’s complaint would not be sent on for investigation.

[5] In a letter dated November 3, 2021, the Applicant was advised that his complaint would not proceed to an investigation as the substance of his complaint would be better adjudicated under another Act or Law . As put in the letter:

With respect to the landlord and tenant issues complained about, the Landlord and Tenant Tribunal is the appropriate forum to deal with them. Concerning the issues regarding your spouse, both family court and civil court are appropriate venues to seek adjudication.

[6] On this application for judicial review the Applicant challenges the procedural fairness of the Director’s decision, particularly their decision to reverse the recommendation of the CMU that his complaint should be sent on for further investigation. The Applicant also alleges that the Director’s decision was wrong in law and incorrect.

[7] In Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363 at para. 28 the Ontario Court of Appeal made the following comments concerning the procedural requirements surrounding a Director’s decision to screen out a complaint:

It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA [ Police Services Act] on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage.

[8] Pursuant to the broad discretion that is conferred on the Director under s. 60 of the Police Services Act, R.S.O. 1990, c. P.15 (PSA) the Director has established Rules of Procedure, Guidelines and internal agency protocols that govern the review of complaints. Under the Complaints Review Protocol that was released by the OIPRD on October 13, 2020 once the CMU decides that a complaint should be screened in the Complaint Form and the Case Analysis Form are sent to the Investigations Unit. Once there, the complaint can be dealt with in one of two ways- the Standard Process or the Alternative Process. The Standard Process involves referring the complaint to the same police service for investigation. The Alternative Process may be invoked for certain enumerated reasons, including if it is determined that the decision of the CMU to screen in the complaint cannot stand. If it is determined that the decision of the CMU cannot stand the investigator can recommend to the Deputy Director that the complaint be screened out.

[9] The essence of the Applicant’s procedural fairness allegation is that OIPRD’s Alternative Process enabled the reversal of a final decision to screen in his complaint.

[10] First, it is clear that the CMU does not make final decisions to screen in complaints. As per the OIPRD Complaints Review Protocol the final decision rests with the Investigations Unit.

[11] The Applicant also points out that the use of the Alternative Process is not detailed in a public manner. However, failing to include specific information on internal procedures the OIPRD uses does not amount to a breach of procedural fairness unless the doctrine of legitimate expectations can be invoked. There is nothing on the OIPRD website that would justify invoking this doctrine.

[12] The Director has broad discretion to control his own process and the use of the Alternative Process in screening out the Applicant’s complaint was not a breach of procedural fairness.

[13] The Applicant argues that the decision to screen out the complaint should be subject to review on a standard of correctness since it raises an important point of principle that could affect other decisions.

[14] In Vavilov v. Canada (Ministry of Citizenship and Immigration), 2019 SCC 65 the Supreme Court of Canada made it clear that the standard of review to be used on judicial review of a tribunal’s decision is presumptively reasonableness There are certain specified exceptions to the presumption, none of which apply here. In particular, this application does not raise a question of law or legal question that is of central importance to the legal system as a whole. Accordingly, the Director’s decision to screen out the Applicant’s complaint is subject to review on a reasonableness standard.

[15] The Applicant submits that the Director’s decision was unreasonable for two main reasons. First, he argues that the Director failed to properly apply s. 60(4) of the PSA that authorizes a Director to screen out a complaint in the public interest if, in their opinion, “the complaint could be more appropriately dealt with, in whole or in part, under another Act or law.” According to the Applicant, the allegations in his complaint show that there was clear misconduct on the part of the LPS officers and a civil, family or landlord and tenant proceeding would not deal with that misconduct. Second, he submits that the Director failed to address all of the issues in his complaint.

[16] According to the Applicant, the Director’s decision was based not on whether the conduct of the officers could be dealt with under another Act or law, but on whether the underlying circumstances that gave rise to the police interactions he had could be dealt with in another forum. This is not the way s. 60(4) is to be applied.

[17] The PSA does not provide a specific direction as to what is or is not in the “public interest”. As the Supreme Court pointed out in Vavilov, supra, at para. 110, the phrase “in the public interest”…”clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language.” In this case, in applying the public interest ground the Director chose to consider whether the issues raised by the complaint could best be dealt with under the PSA or another Act or law.

[18] In applying s. 60(4) the Director focused on what they saw as being at the heart of the Applicant’s complaint. This is reasonable as one of the goals of the Director’s decision is to prevent unwarranted or superfluous investigations. While the Applicant’s complaint raised allegations of negligent investigation and discrimination on the part of the police, the Director identified the main issue in the complaint as the Applicant being dissatisfied with the outcome of his interactions with the police, particularly around gaining access to his former matrimonial home and his spouse’s rights to corporate property.

[19] The police determined that it was outside the scope of their authority to give the Applicant access to the matrimonial home given that he had notified his landlord that he was giving up his lease and the landlord had changed the locks. They also determined that it was outside the scope of their authority to determine whether the Applicant’s spouse had rights to certain corporate property. Investigating whether the police behaved properly in this regard depends upon determining whether the Applicant did indeed have the right to access the former matrimonial home and whether his spouse had the right to certain corporate property. It was reasonable for the Director to conclude that these were determinations that could best be made in another forum.

[20] In Vincent v. Hamilton Police Service, 2012 ONSC 6177 the Divisional Court held that the Director had reasonably screened out a complaint because the complainant’s real concern related to the recovery of property held by the police. While the complainant in that case alleged that the police had committed misconduct by unlawfully possessing his property, the Director determined that the complainant’s concern was better dealt with under the Criminal Code or in a civil action.

[21] The Director’s approach in the case at bar is similar to the Director’s approach in Vincent. Like the court in Vincent, I find that that approach was a reasonable one to take.

[22] With respect to the allegation that the Director failed to address all of the issues in his complaint, as the Court of Appeal made clear in Wall v. Independent Police Review Director, 2014 ONCA 884:

The Director’s reasons for screening out a complaint under s. 60(2) of the Police Services Act need not be lengthy. They need not be complex. But, as the Divisional Court observed, they must at least answer the question “Why?” The complainant, and the court (for the purposes of review) are entitled to know the rudiments of the explanation for why the complaint has been screened out. (para. 62).

[23] The Director’s decision in this case meets that standard.

[24] For these reasons the application is dismissed. Given this disposition, there is no need to address the OIPRD’s submissions concerning the remedies the Applicant requested. As the OIPRD does not seek costs, no costs are awarded.

Sachs J.

I agree _______________________________

Stewart J.

I agree _______________________________

Newton J.

Date: April 29, 2022