CITATION: Grus v. Renwick and Chief of Police, Ottawa Police Service, 2023 ONSC 6977
DIVISIONAL COURT FILE NO.: DC-23-2817 DATE: 2023/12/22
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CST. HELEN GRUS Applicant
– and –
CHRISTOPHER RENWICK and CHIEF OF POLICE, OTTAWA POLICE SERVICE Respondent
Bath-Sheba van den Berg, for the Applicant Vanessa Stewart, for the Respondent
HEARD at Ottawa by Zoom: December 8, 2023
REASONS FOR DECISION
Labrosse J.
Overview
[1] Constable Helen Grus has brought this application for judicial review of a decision of a hearing officer who is conducting a disciplinary hearing pursuant to the Police Services Act[^1] (“PSA”). In the decision at issue, the hearing officer declined to provide an unredacted copy of the pages from the Applicant’s notebook and refused to require that the notebook be produced for inspection by the Applicant. The hearing officer accepted the position of the Ottawa Police Service (“OPS”) that the redactions did not include any relevant notes to the subject proceedings. As part of his inquiry into the notes, the hearing officer reviewed an unredacted copy of the notes and confirmed that there was no reference to any matters before the hearing officer. Everything in the redacted portion of the notes was information and notes related to other cases.
[2] The Applicant proceeded to file an urgent Application for Judicial Review seeking the following:
a. An order to stay the disciplinary proceedings;
b. An order that the tribunal produce the record of proceedings; and
c. An order quashing the hearing officer’s decision where the hearing officer declined to order the production of an unredacted copy of the Applicant’s duty book commenced on January 30, 2022, or to hand over same to the Applicant for her review.
Background Facts
[3] Constable Grus is charged with one count of discreditable conduct under the PSA.
[4] Section 94 of the PSA allows the Chief of Police to designate a hearing officer. In this case, the OPS Chief of Police designated retired superintendent Christopher Renwick as the hearing officer.
[5] Section 83 of the PSA sets out the rules for hearings under Part V of the legislation. Where the statute is silent, s. 83(1) of the PSA states that disciplinary proceedings for police officers are to be conducted in accordance with the Statutory Powers Procedure Act [^2] (“SPPA”).
[6] Section 87 of the PSA provides an automatic right of appeal to the Ontario Civilian Police Commission (“Commission”) from the decision of the hearing officer.
[7] Section 88 of the PSA provides a limited right of appeal to the Divisional Court within 30 days of receiving notice of the Commission’s decision.
[8] Neither the PSA nor the SPPA provides a mechanism to challenge interlocutory decisions of a hearing officer. An appeal to the Commission is only from a final decision of the hearing officer.
[9] The allegations against the Applicant relate to claims that she used her position as a police officer to investigate issues relating to adverse vaccine effects. The Applicant is alleged to have started an unauthorized project wherein she accessed nine infant death cases in which she had no role. She did not record her involvement or findings in the files. On January 30, 2022, the Applicant is alleged to have contacted the father of a deceased infant to inquire about the vaccination status of the mother. It is alleged that she took no notes in relation to her involvement and research on these files.
[10] The focus of this judicial review application is that the Applicant had a duty book which came to be in the possession of the Respondent. The Respondent obtained a copy of the duty book, reviewed the entries and redacted out irrelevant information. On the date in question, being January 30, 2022, all of the information was redacted but for the date.
[11] The Applicant then requested an unredacted copy of the duty book notes. The Respondent objected and stated that it had fulfilled its disclosure obligations. The hearing officer then requested that the Respondent produce the unredacted copy of the duty book notes. He adjourned the proceedings, reviewed the unredacted copy of the duty book notes, and returned with a ruling. He held that there was no reference to any matters before him. Everything in the notes was information and notes related to other cases.
[12] Beyond this, both parties rely on various elements of the hearing, including numerous interlocutory orders made by the hearing officer which have little relevance to the matters at issue. Furthermore, the Applicant challenges a number of rulings made by the hearing officer and makes allegations about how the hearing has been conducted. The Applicant suggests that this Court should be concerned about an appearance of bias. The Notice of Application for Judicial Review makes no such allegation.
[13] At the commencement of these motions, the Applicant requested that an affidavit filed by the Respondent be struck given that it was taken by a paralegal who is a co-counsel in the disciplinary proceeding. The paralegal was not arguing part of these motions. This Court reviewed the various portions of the affidavit that were objected to, and it was agreed that paragraphs 3, 4 and most of paragraph 7 of the affidavit of Bonnie Cho would be struck.
[14] The Applicant filed her Notice of Application for Judicial Review on or about September 15, 2023. A case conference was held by me, and it was determined that certain preliminary issues were to be resolved such as the Respondent’s desire to bring a motion to quash based on prematurity and the question of whether the hearing officer should be a named party in the proceeding. I ruled that the hearing officer should not participate in the judicial review proceedings until such time as his presence as a named party was determined. It was also determined that the Applicant wanted to bring a motion for a stay of proceedings of the disciplinary proceedings until such time as the judicial review was complete.
[15] Accordingly, the issues before this Court are the following:
a. Is the judicial review application premature?
b. Is the hearing officer a party to the proceedings, and if so, what is the scope of his standing?
c. Should there be a stay of proceedings?
Applicable Law
[16] Judicial review is a discretionary remedy. Section 2 of the Judicial Review Procedure Act[^3] (“JRPA”) reads as follows:
2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:
Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.
Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
(2) The power of the court to set aside a decision for error of law on the face of the record on an application for an order in the nature of certiorari is extended so as to apply on an application for judicial review in relation to any decision made in the exercise of any statutory power of decision to the extent it is not limited or precluded by the Act conferring such power of decision.
[17] While the section reads “despite any right of appeal”, the relevant caselaw has interpreted the discretion afforded to the courts under s. 2 of the JRPA as follows:
The position traditionally taken by the courts on the prematurity issue finds its foundation in respect for the legislative intent that reposed the decision-making power in the tribunal and deference to that tribunal. It is inconsistent with those principles to permit participants before an administrative tribunal to come running to Divisional Court on judicial review prior to having exhausted all of their remedies and appeal routes within the administrative regime.[^4]
[18] Furthermore, in Lourenco v. Hegedus,[^5] Corbett J. provided the following view on this same principle, at para. 6:
In rare cases this court will intervene on an application for judicial review in the midst of an administrative process where there are strong reasons to believe that the ongoing process is so deeply flawed that there is a strong likelihood that it will have to be run over again, usually on the basis of bias, reasonable apprehension of bias or want of jurisdiction. This does not mean that judicial review is available before the conclusion of administrative proceedings in any case where an allegation of this kind is made. It must be emphasized that early judicial review is the rare exception, not the rule, and will only be permitted in rare cases where the potential prejudice of the risk of repeating proceedings after review outweighs the prejudice to the general orderly processing of administrative proceedings without interruption until their conclusion. Analogies can be drawn to criminal prosecutions where it is very rare indeed for a proceeding to be interrupted for judicial review or appeal prior to the conclusion of the proceeding.
[19] Finally, in terms of the exceptional circumstances, the Court of Appeal for Ontario confirmed in Volochay v. College of Massage Therapists of Ontario[^6] that exceptional circumstances are still required to justify early intervention.
Analysis
Prematurity
[20] The essence of this Judicial Review Application turns on an interlocutory ruling in respect of disclosure. At its highest, the Applicant frames it as a breach of natural justice because she was not allowed to inspect her original duty book containing the notes of January 30, 2022. No authority was presented to suggest that such a right exists or that it forms part of natural justice.
[21] Disclosure of photocopies of police officer duty book notes forms part of virtually all criminal proceedings. It forms part of first-party disclosure. There has been no suggestion that this form of disclosure is accompanied by a right to inspect the physical duty book from where the photocopied notes originate. There are obvious public policy reasons which support that photocopies of a duty book are sufficient. A right to inspect the physical duty books from where notes originate to all persons entitled to disclosure would obviously add unreasonable time and expense to the disclosure process. It would also increase the risk that information pertaining to unrelated proceedings could be disclosed to third parties. I acknowledge that this leaves a possibility for clerical errors, misinterpretation of the relevance of some notes or even malfeasance.
[22] In the present case, the distinction is made to a police officer’s own duty book. I see very little distinction. The other matters referenced in the duty book are no longer part of that officer’s functions. Furthermore, there is no evidentiary basis laid by the Applicant whereby she was absolutely certain that she took notes and that they would be found in her duty book. To the contrary, the Applicant testified that she doubts that she took notes at certain times and that she thought that there could possibly be a phone number found for a call she made on January 30, 2022. However, there is little certainty attached to that possibility. Furthermore, her counsel advances the possibility that the duty book was “white copied” so as to hide the notes taken by the officer and disclose blank pages. Such a theory finds no foundation in the evidence.
[23] I am unable to find a basis in law and I was directed to no authority supporting the argument that this would warrant that an officer be entitled to a physical inspection of her duty book. However, I am not the decision maker in the process, and it is not for me to substitute my view for that of the hearing officer. In the normal course, reliance is made on the disclosure process. However, in this case, the hearing officer went one step further and physically inspected the unredacted notes, a step in my view that may not have been necessary based on the evidence before him. He confirmed that the January 30, 2022 notes had no reference to any matters before him. There was no evidentiary basis for the possibility that the hearing officer may not understand the notes or that abbreviations may be used that would be unknown to the hearing officer. To the contrary, nothing is suggested other than the possibility of malfeasance without an evidentiary foundation.
[24] It should be noted that the unredacted version of the duty book notes was considered by the hearing officer and it does not seem that it was retained as part of the record. It should have been, and it should likely be included as a sealed lettered exhibit which is not part of the evidence but at least part of the proceeding and available to a reviewing body.
[25] Ultimately, the Applicant may be correct that the law should allow her to inspect her own duty book. However, such a finding must follow the proper process for the review of administrative tribunal decisions. Under the PSA, there is an established path to appeal the decision of a hearing officer to the Commission. There is then a limited right of appeal to the Divisional Court. The Applicant will have the opportunity to advance her grounds of appeal and challenge all of the interlocutory decisions made by the hearing officer as part of the statutory right of appeal.
[26] My view of the right of the Applicant to inspect her own duty book is not determinative of the issue. It is solely relevant to the issue before me and that is if the context gives rise to exceptional circumstances to warrant judicial review of an interlocutory decision.
[27] On the ultimate issue of prematurity, the Applicant has attempted to insert various allegations against the hearing officer to suggest an allegation of bias. As noted during the hearing, the Notice of Application does not allege bias. If such allegations were to be advanced, they should properly form part of the Notice of Application. The result has been that the Applicant has attempted to taint the interlocutory decision of the hearing officer on a discrete disclosure issue by inserting irrelevant allegations of bias which are not part of this judicial review application. Specifically, the Applicant has attempted to taint the interlocutory decision under review by inserting evidence of other decisions that are not being challenged to try to present a pattern of denied disclosure without pleading same. This is inappropriate. Furthermore, the Applicant makes a reference that the hearing officer has not been balanced in his evidentiary rulings. There is no basis in law for a need to balance rulings in favour of both parties. The mere fact that a party would have lost all interlocutory rulings in a matter is not reason by itself to question those decisions. Once again, an evidentiary foundation must be established.
[28] It is clear that the interlocutory rulings made in respect of the duty book and the January 30, 2022 duty book notes do not amount to exceptional circumstances. There are no parallels with the jurisprudence in this area where judicial intervention is warranted. We are not prior to the commencement of the proceedings where an issue can be addressed before the hearing begins. There is no issue of jurisdiction. The evidence does not support that continuing with the hearing would result in an unfair hearing or a breach of natural justice.
[29] As previously stated, the Applicant could ultimately be successful on her appeal of the decision to refuse her the right to inspect her duty book. That would form part of the normal appeal process whereby that decision along with all other interlocutory decisions may be reviewed. However, the record does not support any extreme situation which would warrant that the discretion surrounding judicial review be exercised in these circumstances.
[30] The Application for Judicial Review is quashed as premature.
Hearing Officer as a Party
[31] Although my ruling on prematurity disposes of this matter, the issue relating to the hearing officer as a party should be addressed.
[32] The relevant section of the JRPA is permissive and states that “the person who is authorized to exercise the power may be a party to the application”.[^7]
[33] Relevant jurisprudence has raised two considerations around the need for an adjudicator to be a party to a judicial review application. In some cases, the adjudicator may need to be a party in order to assist in fully informing the review court. Conversely, there are dangers surrounding the participation of the adjudicator as it may undermine future confidence in the adjudicator’s objectivity if they are placed in an adversarial position.[^8]
[34] In the present case, the Applicant has suggested that the hearing officer should be a party in order to potentially address the seriousness of the impartiality concerns raised by the Applicant. Such a suggestion is inappropriate given that the disciplinary proceedings are still in progress. The fact that the hearing officer may be wanted to respond to questions surrounding his own impartiality is alarming to this court. Is the Applicant seeking to intimidate the hearing officer by raising issues of appearance of bias in her materials while making no such allegation in her Notice of Application for Judicial Review? The approach taken by the Applicant in this matter raises many questions.
[35] While there may be circumstances where it may be appropriate for a party to add the adjudicator as a party to a judicial review proceeding, this is not one of them. The veiled challenges to the hearing officer’s impartiality in the midst of a hearing requires that the hearing officer be sheltered from such allegations to avoid attempts to influence his future decision-making.
[36] As a general rule, it is the administrative tribunal’s right to be a party to an application for judicial review.[^9] Accordingly, it would normally be the hearing officer who may seek to have party status in the appropriate circumstances. Clearly, s. 9(2) of the JRPA does not limit the right to the administrative tribunal or decision-maker and there could be circumstances where it would be appropriate for an Applicant to do so. This was not one of those cases and the significant concerns about maintaining the objectivity of the hearing officer militated against the hearing officer having party status in these circumstances.
[37] As of the date of the Case Conference, the hearing officer was excused and did not participate in these motions where many of the allegations were made. In my view, the ongoing role of the hearing officer has been preserved.
Stay of Proceedings
[38] As a result of my decision to quash the Application for Judicial Review for prematurity, there is no need to deal with the stay of proceedings and the disciplinary proceedings may continue as scheduled or as otherwise determined by the hearing officer.
Conclusion
[39] For the reasons stated herein, the Application for Judicial Review is quashed as premature. The hearing officer should not have been named as a party by the Respondent. There shall be no stay of proceedings.
[40] The parties agreed that there should be no order as to costs.
___________________________ Labrosse J.
Released: December 22, 2023
CITATION: Grus v. Renwick and Chief of Police, Ottawa Police Service, 2023 ONSC 6977
DIVISIONAL COURT FILE NO.: DC-23-2817 DATE: 2023/12/22
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
CST. HELEN GRUS Applicant
– and –
CHRISTOPHER RENWICK and CHIEF OF POLICE, OTTAWA POLICE SERVICE Respondent
REASONS FOR DECISION
Labrosse J.
Released: December 22, 2023
[^1]: R.S.O. 1990, c. P.15. [^2]: R.S.O. 1990, c. S.22 [^3]: R.S.O. 1990, c. J.1 [^4]: Ackerman v. Ontario Provincial Police, 2010 ONSC 910, 11 Admin L.R. (5th) 304, at para. 18. [^5]: 2017 ONSC 3872. [^6]: 2012 ONCA 541, 111 O.R. (3d) 561, at para. 70. [^7]: JRPA, s. 9(2). [^8]: Children’s Lawyer for Ontario v. Goodis (2005), 2005 11786 (ON CA), 75 O.R. (3d) 309 (C.A.), at paras. 35-40. [^9]: Goodis, at para. 26.```