Wells v. Cornwall Police Service, 2022 ONSC 5460

CITATION: Wells v. Cornwall Police Service, 2022 ONSC 5460

DIVISIONAL COURT FILE NO.: DC-21-2671

DATE: 20220926

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Swinton and Sheard JJ.

BETWEEN:

Constable Kevin Wells

Applicant

– and –

Cornwall Police Service

Respondent

L. Greenspon, for the Applicant

D. Migicovsky and J. Barrow, for the Respondent

-and-

Ontario Civilian Police Commission

Statutory Respondent

V. Crystal, for the Commission

HEARD at Ottawa September 16, 2022: (virtual hearing)

ASTON J.

Introduction

[1] On March 3, 2020, a Hearing Officer found the applicant guilty on four counts of misconduct over the course of his September 6, 2018 shift as a constable with the Cornwall Police Service. On October 7, 2020, the Hearing Officer ordered that Constable Wells be dismissed in seven days unless he resigned before that.

[2] Constable Wells appealed both the findings of misconduct and the penalty imposed to the Ontario Civilian Police Commission (the “Commission”). On October 29, 2021, the Commission dismissed his appeal.

[3] The applicant seeks judicial review of that decision, requesting that the misconduct findings be set aside, or alternatively, a reduction in the penalty imposed.

[4] The issue before the Court is whether the Commission unreasonably dismissed the applicant’s appeals from the decisions of the Hearing Officer March 2, 2020 and October 7, 2020. At the end of the hearing, the Court dismissed the application for judicial review with reasons to follow. These are the reasons.

Standard of Review

[5] The standard of review to be used by the Divisional Court when reviewing decisions of the Ontario Civilian Police Commission is one of reasonableness. See Ottawa Police Service v. Diafwila, 2016 ONCA 627, paras. 61-63.

[6] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 the Supreme Court of Canada explained at some length the reasonableness standard and what such a review entails.

[7] Counsel acknowledge that Vavilov is the guiding light for both the Commission and this court, but they are somewhat at odds on the emphasis to be afforded to individual paragraphs within that decision. As noted by the Commission at para. 11 of its decision, the applicant emphasized para. 128 of Vavilov where the Supreme Court states “…a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision-maker was actually alert and sensitive to the matter before it”. The respondent points to paras. 85 and 102 of Vavilov instructing reviewing courts to refrain from reweighing evidence considered by the decision maker or conducting a “line-by-line treasure hunt for error”. Regardless of emphasis, it is abundantly clear that a review is not a hearing de novo and that before setting aside a decision the court (or the Commission) must be satisfied that the identified shortcomings are sufficiently serious that they are central and significant to the outcome and the chain of reasoning

[8] The applicant’s submissions in this court also emphasize paragraph 128 of Vavilov. I agree that a meaningful explanation for a conclusion requires more than mere recitation if the link or the logic is not self-evident. On the other hand, the decision-maker is not required to “grapple with”, or even acknowledge, every disputed fact or issue extraneous to its decision.

[9] Emphasis on this paragraph from Vavilov unfortunately invites a re-examination of all the evidence to discern whether the failure to allude to certain evidence, or to merely recite evidence without comment, constitutes a failure to meaningfully address the issues.

[10] The best example of the perils of the “grapple with” argument is the applicant’s challenge to the findings of misconduct.

Findings of Misconduct

Count #1

[11] Constable Wells was found guilty of discreditable conduct for operating his marked police cruiser without a valid driver’s license. His license had expired, and he knew it had expired, but he chose not to tell his supervisor when reporting for his shift and drove a service vehicle throughout his shift.

[12] Constable Wells challenges the finding of misconduct on the basis that the Hearing Officer failed to “grapple with” six specific “pieces of evidence”:

That his driver’s license had expired but was not suspended;
That he was not informed of his license expiry for two weeks after a fellow officer had learned of the expiry;
That he was working an overtime shift that night;
That he was supporting his co-workers, who would have otherwise been understaffed;
That he planned to renew his driver’s license the next day, and did so; and
That another constable with the Cornwall Police Service (CPS) knew of the license suspension and mentioned it to the applicant.

[13] The Hearing Officer’s decision identified the essential elements of “discreditable conduct” and found, on the basis of uncontroverted evidence, that the offence had been proven. None of the six additional pieces of evidence contradict that finding or render it unreasonable.

[14] At paras. 17 to 22 of its decision, the Commission explained why there was no need to “grapple with” these additional facts. At paras. 23 and 24, the Commission gives cogent reasons for dismissing the other two challenges on count #1 - not “weighing” Constable Wells’ conduct against that of other officers in another case and not considering whether his conduct could also support a finding of neglect of duty. Irrelevant considerations do not have to be included. The decision-maker’s obligation to grapple with “key issues” or “central arguments” does not expand just because one party characterizes an issue or an argument in that fashion.

Count #3

[15] The Hearing Officer found Constable Wells guilty of neglect of duty for failing to immediately report an accident that caused damage to the undercarriage of his cruiser and for failure to make an entry in his notebook about his collision with a cement median. The Hearing Officer heard evidence from two officers that notwithstanding the published policy of CPS, “immediately” doesn’t necessarily mean “right away”. As found by the Commission at paragraph 30 of its reasons, the Hearing Officer considered the opinions of those other officers and rejected them for reasons he explained. This point highlights the problematic nature of the “failed to grapple with” argument. Very often it engages the reviewing court (and in this case, the Commission also) in an exercise of weighing evidence the original decision-maker already weighed and rejected. The applicant’s appeal to the Commission simply asked it to consider the same evidence and conclude that a five-hour delay in reporting the collision was close enough in time to be considered “immediate”. The Commission refused to brand the Hearing Officer’s decision to the contrary as “unreasonable”, using the standard of review it needed to apply rather than substituting its own view.

[16] Moreover, there is no challenge to the finding of fact that Constable Wells failed to make note of the collision, his actual observation of the damage, or his having the cruiser examined by a friend who was a mechanic while he was on his shift. In short, there is ample evidence to support a finding of neglect of duty and no basis upon which the Commission could interfere with that finding.

Count #4

[17] Constable Wells was found guilty of discreditable conduct for having an unauthorized mechanic inspect his damaged cruiser after hours and outside his policing jurisdiction. These facts are not challenged.

[18] Constable Wells testified he did this in order to ensure the vehicle was safe to drive during his shift. The Hearing Officer did not accept that evidence because Constable Wells did not report the accident at the time or make note of it in his notebook. Instead, the Hearing Officer drew the inference that Constable Wells was attempting to either conceal the extent of the damage or the fact that he was driving without a valid driver’s licence or both. That inference, in the context of the other evidence, and other findings of fact, was open to the Hearing Officer. The standard of review insulates that finding from interference by the Commission and, in turn, by this Court.

Count #5

[19] This finding of deceit is based on an extension of the events respecting count #4. The Hearing Officer found that failing to tell his superior about the inspection by the mechanic friend, or that Constable Wells had seen the damage himself and knew the specific nature of that damage, was deceitful, inaccurate, and misleading. So too the note Constable Wells gave to the authorized mechanic.

[20] The applicant invited the Commission (and this court) to look at the evidence of Sergeant McLean, who testified he believed Constable Wells was being honest and genuine when he reported some damage to his cruiser that night. Having regard to the clandestine visit to the unauthorized mechanic, Constable Wells’ knowledge of the specific nature of the damage and his non-disclosure of the fact that he was driving without a valid driver’s license, it was open to the Hearing Officer to reach a different opinion than Sergeant McLean. The Commission found the Hearing Officer’s conclusion reasonable in determining as a fact that Constable Wells did not render an honest or genuine report of the damage to the cruiser and instead made inaccurate and misleading statements for the purpose of deceiving his supervising officer. That finding by the Commission is also reasonable and subject to deference on judicial review.

Summary respecting findings of misconduct

[21] The factual findings of the Hearing Officer on the constituent elements of a misconduct finding on each count were a combination of uncontradicted evidence, preferred evidence, and reasonable inference. The Commission correctly articulated the standard of review and gave a cogent explanation for why it rejected Constable Wells’ submissions on appeal. The Commission “grappled with” those submissions while refraining from conducting a fresh analysis of the evidence, properly recognizing the difference between an appeal and a hearing de novo. The Commission’s decision on the findings of misconduct was reasonable.

The Disposition

[22] The applicant’s submission on penalty is framed and reframed in several ways with multiple reasons. However, his submissions all come down to an assertion that termination of employment is unreasonable because it is unduly and unnecessarily harsh. He points to mitigating facts and circumstances, the Commission’s failure to specifically address the “ladder” principle, an undue emphasis on a previous misconduct disposition and the Commission’s “rejection” of the Hearing Officer’s conclusion that the public would be “shocked” if Constable Wells were allowed to remain on the police force given his misconduct history.

[23] The applicant acknowledges that the standard of review on penalty sets the bar quite high. Before the Commission, he must demonstrate a “clear error in principle” or that relevant material facts were “not considered”. See Karklins v Toronto (City) Police Service, [2010] ONSC 747 at para. 10. The Commission is not to second guess the Hearing Officer’s decision even if it might have imposed a different penalty, unless the Hearing Officer failed to fairly or impartially apply the considerations listed by both the Hearing Officer and the Commission in their respective decisions. Again, this Court must determine whether the Commission reasonably upheld the penalty decision.

[24] The “ladder principle”, in employment law probably more appropriately labelled as the principle of progressive discipline, does not rule out termination of employment for new misconduct that is less serious than prior misconduct. The Hearing Officer and the Commission both demonstrate in their reasons an understanding that the incidents occurring on this one shift in September 2018 were not so serious as to warrant termination of employment but for the very serious prior misconduct and the penalty imposed for that misconduct. The applicant had been found to have committed serious misconduct in a 2016 decision and he was demoted from Constable Fourth Class to Constable First Class – the most serious penalty short of dismissal. In the present proceeding, problems of honesty, integrity and trustworthiness were regarded as persisting problems.

[25] Though the Commission did “not necessarily agree” with the word “shocked” in the Hearing Officer’s characterization of how the public would perceive the continued employment of Constable Wells, it nevertheless agreed with him that there was a “potential for damage” to the reputation of the Police Service in continuing his employment.

[26] The Commission addressed all the applicant’s other specific challenges to the Hearing Officer’s decision in detail and explained (paras. 49 to 67) its conclusion that “the Hearing Officer did not make such errors in principle that would justify our interfering with the penalty imposed”. It is unnecessary for the court to repeat paras. 49 to 67 of the Commission’s reasons. Suffice it to say the Commission explained why the Hearing Officer’s decision to terminate Constable Wells’ employment was “reasonable”. Its explanation also meets the reasonableness standard and is entitled to deference on judicial review.

Conclusion

[27] The applicant’s judicial review application does not raise any fresh challenge to the Hearing Officer’s decision that was not raised in his appeal to the Ontario Civilian Police Commission. The Commission addressed and rejected each and every one of those challenges. The Commission gave comprehensive and compelling reasons for doing so. The degree of deference the Commission afforded to the Hearing Officer’s original decision, and its rationale, reflects the appropriate standard of review. That same standard of review insulates the Commission’s decision from judicial interference.

[28] The judicial review application is therefore dismissed. The applicant is to pay the respondent Cornwall Police Service costs fixed in the agreed amounts of $30,000 for the judicial review application, and $15,000 for the costs of the motion to stay his dismissal from the Police Service, those costs having been reserved to the panel hearing this application.

Justice D. Aston

I agree _______________________________

Justice K. Swinton

I agree _______________________________

Justice L. Sheard

Released: September 26, 2022