Connor Engels v. Office of the Independent Police Review Director, 2024 ONSC 2585

DIVISIONAL COURT FILE NO.: 469/23

DATE: 20240503

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Connor Engels, Applicant on the Judicial Review/Respondent on the motion

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Law Enforcement Complaints Agency (formerly the Office of the Independent Police Review Director), Respondent on the Judicial Review and on the motion

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Toronto Police Service, Respondent on the Judicial Review/Moving Party

BEFORE: Justice Davies

COUNSEL: David Shellnutt and Rebecca Murray, for Mr. Engels Colin Bourrier, for the Law Enforcement Complaints Agency (formerly the Office of the Independent Police Review Director) Matthew Capotosto, for the Toronto Police Service

HEARD: April 23, 2024

ENDORSEMENT

[1] Mr. Engels filed a complaint with the Office of the Independent Police Review Director (OIPRD) about several Toronto Police Service officers. Mr. Engels alleged the officers used excessive force and abused their authority during the removal of two encampments at Alexandra Park and Lamport Stadium on July 20 and July 21, 2021 respectively. He also complained about how the police treated demonstrators at 14 Division later after the Lamport Stadium encampment was removed.

[2] After a protracted process, the OIPRD referred Mr. Engels’ complaint to the Toronto Police Service in September 2022 for an investigation. In December 2022, the Toronto Police Service released a report of its investigation. Based on that report, the Toronto Chief of Police concluded that one officer, PC Kiproff, engaged in misconduct during his interactions with Mr. Engels on July 20, 2021. The Chief referred that matter to PC Kiproff’s Unit Commander for disciplinary action.

[3] Mr. Engels does not feel the Toronto Police adequately investigated his complaints. He thinks the Toronto Police only investigated his interactions with PC Kiproff and did not investigate the allegations he made about other officers.

[4] In May 2023, Mr. Engels asked the OIPRD to review the Toronto Police Service investigation and the Chief’s decision. The OIPRD declined to conduct a review. Mr. Engels filed an application for judicial review seeking to set aside the OIPRD’s decision not to review the outcome of the Toronto Police Service investigation.

[5] Mr. Engels filed a fresh as amended Notice of Application for Judicial Review in September 2023 in which he added the Toronto Police Service as a party and sought an order in the nature of mandamus directing the Toronto Police Service to investigate his complaints about what happened on July 21, 2021 at Lamport Stadium and at 14 Division.

[6] This is a motion to quash the Application for Judicial Review against the Toronto Police Service. The OIPRD took no position on the motion and the outcome on this motion will not impact Mr. Engels’ application for judicial review of the OIPRD’s decision denying his request for a review. The only issue on this motion is whether the application against the Toronto Police Service should be quashed.

[7] This court will only quash an application for judicial review if it is plain and obvious the application will fail: Unimac-United Management Corp. v. Metrolinx, 2016 ONSC 2032 at para. 8. I am satisfied that Mr. Engels’ application for judicial review of the Toronto Police Service investigation is bound to fail and should be quashed. To understand this conclusion, I must review the chronology of Mr. Engels’ complaint and the provisions of the Police Services Act, R.S.O. 1990, c. P.15 in some detail.[^1]

a. Chronology of Mr. Engels’ complaint

[8] Mr. Engels originally filed his complaint in January 2022. The OIPRD informed Mr. Engels and the Toronto Police Service in February 2022 that it had decided not to consider Mr. Engels’ complainant and had closed its file.

[9] In March 2022, Mr. Engels filed an application for judicial review of the OIPRD decision to not consider his complaint. That judicial application was never argued because the OIPRD consented to an order granting the application and quashing the Director’s decision. Justice Corbett issued the consent order on August 15, 2022. Pursuant to that order, the Director of the OIPRD was required to either assign the portion of Mr. Engels’ complaint that was not already being investigated to a police service to be investigated or conduct an investigation itself. [^2]

[10] On September 2, 2022, the OIPRD referred Mr. Engels’ complaint to the Toronto Police Service. The OIPRD directed the Toronto Police Service to investigate all the allegations of misconduct in Mr. Engels’ complaint and any allegations of misconduct that arose during their investigation. The Investigative Plan prepared for the Toronto Police by the OIPRD notes that portions of Mr. Engels’ complaint involved “third party allegations” about interactions between the police and other members of the public. The OIPRD sent the Toronto Police Service Mr. Engels’ full complaint, including his detailed chronology of events and all the photographs and videos he found online that he says depict the violent and abusive police conduct.

[11] On December 12, 2022, the Toronto Police Service issued a report about its investigation. The report contains a summary of new information received from Mr. Engels during an interview with the investigating officer. The investigating officer asked Mr. Engels about what he experienced and witnessed at Alexandra Park, Lamport Stadium and 14 Division. Mr. Engels provided additional details about each incident.

[12] The investigating officer substantiated some of Mr. Engels’ allegations about P.C. Kiproff’s conduct at Alexandra Park on July 20, 2021. The investigating officer found that P.C. Kiproff treated Mr. Engels in a condescending and demeaning manner during their interaction that day.

[13] A copy of the Toronto Police Service report was sent to Mr. Engels on December 12, 2022. The cover letter reiterated that one of Mr. Engels’ allegations was substantiated and the Chief of Police had been referred the matter to PC Kiproff’s Unit Commander to impose an appropriate penalty. The letter also said, “If you do not concur with my decision, you may request a review of my decision by the Office of the Independent Police Review Director (OIPRD) within 30 days of your receipt of this letter.”

[14] Mr. Engels did not file a request for a review within 30 days as specified in the letter. Rather, Mr. Engels, through his counsel, sent a letter to the Toronto Police Service in May 2023 complaining that the portion of his complaint related to the events at Lamport Stadium and 14 Division on July 21, 2021 had not been investigated.

[15] On May 23, 2023, the Toronto Police sent Mr. Engels a letter confirming that the investigator considered all of Mr. Engels’ complaint, including the events at Lamport Stadium and at 14 Division on July 21, 2021 and determined there was only evidence to substantiate the complaint about PC Kiproff’s conduct on July 20, 2021.

[16] On June 9, 2023 – more than six months after the report of the Toronto Police Service investigation was released – Mr. Engels requested a review by the Director of the OIPRD of the Toronto Police Service investigation of his complaints. Mr. Engels explained the delay in his request for a review. He said that until he received the May 23, 2023 letter from the Toronto Police Service, he thought the investigation of his complaint had bifurcated his complaint and the allegations about the events at Alexandra Park and 14 Division were still under review. Mr. Engels pointed out that until May 2023 the OIPRD website said that his complaint “has been received by our Office and is currently in the Matter before the Chief/Commissioner stage”, which Mr. Engels says supported his belief that the investigation was not complete. Mr. Engels also detailed his concerns about the adequacy of the Toronto Police Service investigation in his June 9, 2023 letter.

[17] On July 5, 2023, the OIPRD wrote to Mr. Engels denying his request for a review. The Director of the OIPRD concluded that Mr. Engels’ belief that part of his complaint was still under investigation was unreasonable. The Director also considered the fact that Mr. Engels was told in December 2022 how to challenge the Toronto Police Service conclusions if he was not happy with the outcome of their investigation. Finally, the Director found that there were no exceptional circumstances that would justify extending the time to seek a review by more than five months.

[18] Mr. Engels has sought judicial review of the Director’s decision denying his request for a review. Regardless of the outcome of this motion, that aspect of Mr. Engels’ application will proceed. The question is whether Mr. Engels can judicially review the adequacy of the Toronto Police Service investigation directly at this time.

b. Structure of the complaint process in the [Police Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)

[19] The Toronto Police Service argues Mr. Engels is not entitled to judicial review of the adequacy of its investigation to the Divisional Court. The Toronto Police Service argues the only route available for Mr. Engels to review the adequacy of its investigation is under s. 71 of the Police Services Act (i.e. a successful judicial review of the OIPRD’s decision not to conduct a review). The Toronto Police Service argues that Mr. Engels’ application for judicial review against the Toronto Police Service is premature because if he wins the judicial review application of the Director’s decision denying his review, the OIPRD will review the adequacy and outcome of the Toronto Police Service investigation. And if Mr. Engels is unhappy with the outcome of that review, he could seek a further judicial review to this court, which would focus on the adequacy of the Toronto Police Service investigation.

[20] Mr. Engels argues s. 71(1) of the Police Services Act does not apply and he, therefore, has a right to judicially review the adequacy of the Toronto Police Service investigation directly to this court now. To understand this argument, I must summarize the provisions of the Police Services Act dealing with complaints by members of the public against police officers.

[21] Any member of the public can make a complaint about the conduct of a police officer to the Director of the OIPRD under s. 58(1) of the Police Services Act. The Director of the OIPRD has the power not to deal with a complaint if, for example, the Director feels it is not in the public interest to do so or if the complainant was not directly affected by the conduct complained of: Police Services Act, s. 60. If, however, the Director decides to deal with a complaint about the conduct of an officer, the Director has three options: (1) refer the matter to the police force in question for an investigation, (2) refer the matter to another police force for an investigation; or (3) cause the OIPRD to conduct an investigation: Police Services Act, s. 61(5).

[22] Following Mr. Engels’ first judicial review application, his complaint was referred to the Toronto Police Service under s. 61(5) of the Police Services Act.

[23] Once the complaint was referred to the Toronto Police Service, the Toronto Chief of Police was required to cause the complaint to be investigated. A written report must be issued following the investigation.

[24] Section 66 of the Police Services Act sets out what is to happen once the investigative report is prepared. If the Chief of Police is of the opinion, based on a review the report, that the complaint against an officer is unsubstantiated, the Chief shall take no further action and shall notify the complainant and the OIPRD. If the Chief believes the officer’s conduct constitutes misconduct or unsatisfactory work performance, he shall hold a hearing into the complaint. If, however, the Chief believes the misconduct or performance issues is “not of a serious nature”, the Chief may resolve the issue informally without holding a hearing.

[25] In this case, the Toronto Chief of Police concluded that Officer Kiproff’s engaged in misconduct on July 20, 2021 but the misconduct was not of a serious nature so the matter was resolved informally at the Unit level.

[26] Section 71(1) of the Police Services Act states as follows:

If a complainant has been notified … that his or her complaint is unsubstantiated or … that the conduct he or she complained of has been determined to be not of a serious nature, the complainant may, within 30 days of such notification, ask the Independent Police Review Director to review the decision.

[27] On a review under s. 71(1) of the Police Services Act, the Director must consider whether the investigation adequately addressed the issues raised in the complaint and whether the Chief’s decision was supported by the evidence: AZ v. Office of the Independent Police Review Director, 2003 ONSC 6365 at para. 27.

c. Analysis

[28] Mr. Engels argues that s. 71(1) does not apply because the Toronto Police Service has not found that his complaints relating to the conduct of police at Lamport Stadium and at 14 Division on July 21, 2021 are unsubstantiated. He argues the December 12, 2022 report is silent on those parts of his complaint. He argues the Toronto Police Service has not investigated those parts of his complaint. Mr. Engels also argues the Toronto Police Service breached Justice Corbett’s order and the rules of natural justice by failing to investigate all his complaints. Finally, Mr. Engels argues that because s. 71(1) does not apply, he is entitled to seek judicial review of their failure to act to this Court directly without seeking a review by the Director of the OIPRD.

[29] I disagree. The review process in s. 71 of the Act does apply.

[30] The Police Services Act provides for only three possible outcomes of an investigation: (i) the complaint is substantiated and it is referred to a hearing, (ii) the complaint is substantiated but the conduct is not serious and it is resolved informally without a hearing, or (iii) the complaint is not substantiated. In the December 12, 2022 report, the investigator described all of Mr. Engels’ complaints. The report details the investigator’s interview with Mr. Engels in which all aspects of his complaints were discussed. Mr. Engels told the investigating officer he did not have any direct contact with any Toronto police officer at Lamport Stadium or at 14 Division. Mr. Engels said he did not take any of the pictures or videos of the events at Lamport Stadium or at 14 Division. He also said he does not know any of the people in the photos that he says depict the police using excessive force. The investigating officer did not make any positive findings of discreditable misconduct in relation to the events at Lamport Stadium. However, in the analysis section of the report, the investigating officer wrote, “The one issue that needs to be addressed is whether [PC Kiproff] acted in a discreditable manner towards the Complainant on July 20, 2021.” The investigator found that Mr. Engels’ complaint about his interactions with PC Kiproff was substantiated. It follows that the other complaints were not substantiated, thereby triggering the review process in s. 71 of the Police Service Act.

[31] The only remedy available to a complainant who disagrees with the outcome of an investigation is to seek a review of the Chief’s decision under s. 71 of the Act: AZ v. Office of the Independent Police Review Director, 2003 ONSC 6365 at para. 82. In other words, the only route for Mr. Engels to review the adequacy or outcome of the investigation done by the Toronto Police Service is to seek a review by the Director of the OIPRD. Mr. Engels has done that and is unhappy with the outcome of that request. He has sought judicial review of that application. If his judicial review application is successful, the OIPRD will review the adequacy of the Toronto Police Service investigation.

[32] It would be an absurd result if Mr. Engels could judicially review the substance of the Toronto Police Service investigation directly to the Divisional Court without pursuing the review provided for in the Act. The Legislature is entitled to create a process for parties to review an administrative decision. The Legislature has created such a process in s. 71 of the Police Services Act and has established a 30-day period within which a request for review must be made. This court has repeatedly held that parties are required to exhaust any available administrative review before seeking judicial review. Permitting Mr. Engels to seek judicial review of the adequacy of the Toronto Police investigation now would render the statutory review process and the 30-day review period meaningless.

[33] Although not determinative on this motion to quash, I also note that even if Mr. Engels was entitled to apply for judicial review of the Toronto Police Service investigation, his application was out of time. Under s. 5(1) of the Judicial Review Procedures Act, an application for judicial review must be filed no later than 30 days after the date the decision was made. Even if I were to accept that the decision Mr. Engels is seeking to review was set out for the first time in the May 23, 2023 letter from the Toronto Police Service, an application for judicial review had to have been made by June 23, 2023. Mr. Engels did not file his fresh as amended Notice of Application adding the Toronto Police Service until September 2023. An extension of time can be granted if there are apparent grounds for relief and no substantial prejudice to the responding party, but Mr. Engels did not bring a motion to extend the time to file his application.

d. Conclusion and costs

[34] I grant the motion to quash the judicial review application against the Toronto Police Service.

[35] Mr. Engels’ application for judicial review against the OIPRD shall continue. That application is already scheduled to be heard on September 9, 2024 and a timetable has been set for the exchange of materials. With the coming into force of the Community Safety and Policing Act, 2019, the Office of the Independent Police Review Director is now the Law Enforcement Complaints Agency: Community Safety and Policing Act, 2019, s. 130. The style of cause of this matter shall be changed to reflect the new name and all documents filed in this matter shall refer to the Respondent as the Law Enforcement Complaints Agency rather than the Office of the Independent Police Review Director.

[36] The Toronto Police Service is not seeking any costs on its motion and no costs are ordered.

Davies, J.

Date: May 3, 2024

[^1]: The Police Services Act was repealed on April 1, 2024 and replaced with the Community Safety and Policing Act, 2019, S.O. 2019, c. 1. However, Mr. Engels’ complaint is still governed by the provisions of the Police Services Act because it related to conduct that happened before the new act came into force on April 1, 2024.

[^2]: In his original complaint, Mr. Engels complained that PC Kiproff punched a civilian named Corey David outside 14 Division on July 21, 2021. The police treatment of Mr. David was dealt with in a separate investigation. As a result, those portions of Mr. Engels’ complaint about Mr. David were not included in September 2022 the referral to the Toronto Police Service.