CITATION: Engels v. Ontario (Office of the Independent Police Review Director), 2024 ONSC 5104
DIVISIONAL COURT FILE NO.: 469/23
DATE: 20240923
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Ryan Bell and O’Brien JJ.
BETWEEN:
CONNOR ENGELS Appellant
– and –
OFFICE OF THE INDEPENDENT POLICE REVIEW DIRECTOR Respondent
– and –
TORONTO POLICE SERVICE Respondent
David Shellnutt, for the Applicant Colin Bourrier, for the Respondent, Office of the Independent Police Review Director Matthew Capotosto for the Respondent, Toronto Police Service
HEARD at Toronto: September 9, 2024
Backhouse J.
REASONS FOR DECISION
Overview
[1] The applicant filed a complaint with the respondent, the Office of the Independent Police Review Director, now Law Enforcement Complaints Agency[^1] (“LECA” or “the Director”) alleging officers used excessive force during their removal of encampments at Alexandra Park, Lamport Stadium and 14 Division Street in Toronto. The complaint also alleged that Police Constable Michael Kiproff acted in an inappropriate and unprofessional manner toward the applicant during an interaction they had at Alexandra Park.
[2] The investigative report substantiated one of the applicant’s allegations against Police Constable Kiproff. The Police Chief upheld the report and advised the applicant that if he disagreed with this decision he may request a review of it within thirty days of receiving the letter (“the Chief’s Decision”).
[3] The applicant waited over five months to request a review. He requested that the thirty-day deadline should be waived on the basis that he believed the investigation was still ongoing. The Director dismissed the request for review because it was over five months late and it was not reasonable for the applicant to believe that the investigation was ongoing. The Director declined to waive the thirty-day deadline (“the Director’s Decision”).
[4] The applicant seeks judicial review of the Director’s Decision. He asks that the Director’s Decision be set aside and mandamus be granted, directing LECA and the Toronto Police Service (“TPS”) to investigate all the allegations of police misconduct made in his initial complaint.
[5] TPS brought a motion to quash the judicial review as against it, arguing that the only route for the applicant to review the adequacy of its investigation was under the statutory review provided for in s. 71 of the Police Services Act, R.S.O. 1990, Ch. P.15 (“PSA”)[^2]. The applicant submitted that s. 71(1) of the PSA did not apply. The applicant argued that the investigative report did not find that his other complaints were unsubstantiated and submitted that the TPS had not investigated those parts of his complaint. Therefore, it followed that he had not been notified that his complaint was unsubstantiated as required by s. 71(1).
[6] On May 3, 2024, Justice Davies (the “motion judge”) found that the applicant’s other complaints were unsubstantiated in the investigative report and the only route for the applicant to seek a review of the outcome and adequacy of the TPS investigation was to seek a review by LECA as provided for under s. 71 of the PSA. She found that it was plain and obvious that his application for judicial review against the TPS investigation was bound to fail and should be quashed (“the motion judge’s decision” or “order”).
[7] The applicant seeks to vary or set aside the motion judge’s order. The motion was heard by this panel at the same time as the applicant’s judicial review application against LECA. The applicant’s judicial review application against TPS, if allowed to proceed by a variation or setting aside of Justice Davies’ order, is be heard at a later date to be scheduled.
[8] I agree with TPS’s position that there is no basis to set aside the motion judge’s order which was in accordance with the well-settled principle that the applicant was required to exhaust any available statutory review by seeking a review of the investigation under s. 71 of the PSA prior to proceeding with a judicial review application. There is no basis to order mandamus against either respondent prior to exhausting the statutory review. The only issue on the application for judicial review remaining to be determined is whether the Director’s decision to deny the applicant’s request for review under s. 71 of the PSA is reasonable.
[9] I find the Director’s Decision to dismiss the applicant’s request for review on the basis of delay was reasonable. For the reasons set out below, I would dismiss the motion and the application for judicial review.
Background
[10] The Director is the statutory decision-maker responsible for receiving, managing, and overseeing all complaints about police officers in Ontario. The Director derives his statutory authority from the PSA (for complaints pre-April 1, 2024) and the CSPA (for complaints post-April 1, 2024).
[11] When the Director receives a complaint from a member of the public and determines that the complaint should be investigated pursuant to the PSA, the Director may: (i) retain the complaint to be investigated by the Director, (ii) refer the complaint to the police to which the officer who is the subject of the complaint belongs for investigation or (iii) refer the complaint to another police service for investigation.[^3]
[12] When the Director refers a complaint for investigation by a police service, the professional standards bureau (PSB) of that police service investigates the complaint and prepares an investigative report. The investigative report, which contains the PSB investigator’s recommendations regarding the disposition of the complaint, is given to the Chief of the police service to which the subject officer belongs. The Chief then decides whether to adopt the findings of the investigative report. The final decision regarding whether misconduct has been committed by the subject officers (whether the complaint is “substantiated” or “unsubstantiated”) is therefore made by the Chief.[^4]
[13] Where an investigation has been referred to a police service for investigation, and a complaint has been found to be unsubstantiated, or substantiated but “not of a serious nature”, section 71 of the PSA provides that a complainant may request that the Director review the decision of the Chief.[^5] This review is done in writing, with the complainant and the Chief of police having the opportunity to make submissions, but no hearing may be held.[^6]
[14] Under section 71 of the PSA, the complainant may ask the Director to review the Chief’s decision within 30 days of being notified of the decision.[^7]
[15] The review process is not a de novo investigation.[^8] There is no statutory appeal from the Director’s decision to deny a late request for review.
The Applicant’s Complaint to the Director
[16] In response to the applicant’s complaint made on January 20, 2022 in regard to events which occurred on July 20 and 21, 2021, the Director initially informed the applicant in February 2022 of its decision to screen out his complaint, meaning it would not be investigated. In March 2022, the applicant brought an application for judicial review of the decision to screen out his complaint. That application was settled pursuant to a consent order issued by Justice Corbett on August 15, 2022 which required LECA to either investigate the complaint itself or refer it to the appropriate police service for investigation.
[17] Pursuant to Justice Corbett’s order, in September 2022 the Director referred the applicant’s complaint to the TPS for investigation. The Director directed the TPS to investigate the allegations of misconduct in the complaint and any allegations of misconduct that arose during their investigation.
[18] LECA sent the TPS the full complaint, including the applicant’s detailed chronology of events and all the photographs and videos he found online that he says depict the violent and abusive police conduct. The allegations in the complaint pertaining to a third party (C.D.) were screened out, as those allegations were previously referred to the TPS for investigation and were dealt with as a separate matter.
[19] A copy of the TPS investigative report was sent to the applicant on December 12, 2022. The cover letter reiterated that one of the applicant’s allegations, in relation to the conduct of PC Kiproff, was substantiated and the Chief of Police had 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 [LECA] within 30 days of your receipt of this letter.”
[20] On January 16, 2023, LECA advised TPS that they had received the investigative report and the Chief’s Decision and had not received a request for review. They accordingly deemed the matter to be completed and closed the file.
[21] The applicant did not file a request within 30 days as specified in the December 12, 2022 letter. Rather, the applicant through his counsel, sent a letter to the TPS 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.
[22] On May 3, 2023, TPS confirmed in a letter to the applicant that the matter was reviewed by LECA and that LECA was satisfied with the results of the investigation conducted by the TPS and the conclusions reached.
[23] On May 23, 2023, the applicant was sent a letter from the Chief of Police’s office confirming that the investigator considered all of the applicant’s 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.
[24] On June 9, 2023–-more than six months after the report of the TPS investigation was released–-the applicant requested a review of the Chief’s Decision. In his submissions, he argued that the thirty-day request for review deadline should be waived because he was left with the impression that the investigation was still ongoing and that the alleged abuse at Lamport Stadium and 14 Division Street would be addressed in subsequent reports. The applicant argued this was a reasonable assumption to make since these portions of the complaint were neither explicitly substantiated nor unsubstantiated. The applicant says this assumption was also supported by an apparent error on the TPS website, which continued to describe his complaint as under review even after the Chief’s Decision had been issued.
Director’s Review Decision
[25] The Director dismissed the applicant’s request for review on July 5, 2023 on the basis that it was late and declined to waive the thirty-day deadline based on five grounds:
Neither the Chief’s Decision nor the TPS Investigative Report referred to any pending decisions. This undermines the reasonableness of the applicant’s perception that the investigation was ongoing.
The Chief’s Decision explicitly warned of the thirty-day review deadline. Since the applicant was made aware of this, it was “incumbent on him or his counsel to inquire then about whether a second investigation was being, or would be, undertaken” to preserve his right to review.
The applicant was represented by counsel and did not raise any concerns about his ability to meet the requirements to request a review.
The applicant requested a review several months late. Even after the TPS confirmed in its May 3, 2023 letter that LECA was satisfied with the results of the investigation, the applicant waited another five weeks before filing his request.
Upholding the thirty-day period, absent exceptional circumstances, is critical to ensuring the integrity and certainty of the review process.
[26] On August 4, 2023, the applicant served the TPS with a motion to compel the TPS to adhere to Justice Corbett’s August 15, 2022 order and an application for judicial review against LECA directing it to investigate the applicant’s complaints. The motion was not accepted for filing because the court file involving Justice Corbett’s order was closed. Justice Matheson directed that the applicant seek any relief it claimed by amending the application for judicial review. The applicant then filed a fresh as amended application for judicial review on September 24, 2024, naming both LECA and the TPS and seeking an order of mandamus directing LECA and the TPS to investigate the applicant’s remaining July 21, 2021 complaints “that were ordered to be investigated by Justice Corbett on August 5, 2023”. The applicant did not seek a judicial review of the TPS’s exercise of their statutory powers under s. 66 of the PSA either in the notice of motion or amended application.
Application for Judicial Review
[27] The applicant now seeks judicial review of the Director’s Decision, alleging that it erred in law by denying his request for review. He also asserts that both LECA and TPS are in “violation of the rules of natural justice and/or procedural fairness”. He seeks an order setting aside the Director’s Decision and a mandamus order directing LECA and TPS to investigate the remaining allegations of police misconduct.
Relevant Provisions
[28] The relevant provisions of the PSA provide:
Section 61
Complaints referred, retained
61 (1) This section applies to every complaint made to the Independent Police Review Director by a member of the public under this Part, unless the Independent Police Review Director has decided not to deal with the complaint in accordance with section 60. 2007, c. 5, s. 10.
Complaints about officer other than chief
(5) A complaint about the conduct of a police officer, other than a chief of police, deputy chief of police or a police officer appointed under the Interprovincial Policing Act, 2009, shall be,
(a) referred by the Independent Police Review Director to the chief of police of the police force to which the complaint relates and dealt with under section 66;
(b) referred by the Independent Police Review Director to the chief of police of a police force other than the police force to which the complaint relates and dealt with under section 67; or
(c) retained by the Independent Police Review Director and dealt with under section 68. 2009, c. 30, s. 54.
(6) In exercising his or her discretion under subsection (5) or (5.1), the Independent Police Review Director shall consider the nature of the complaint and the public interest. 2009, c. 30, s. 54.
Section 66
66 (1) The chief of police shall cause every complaint referred to him or her by the Independent Police Review Director under clause 61 (5) (a) to be investigated and the investigation to be reported on in a written report. 2007, c. 5, s. 10.
Unsubstantiated complaint
(2) If at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police is of the opinion that the complaint is unsubstantiated, the chief of police shall take no action in response to the complaint and shall notify the complainant, the police officer who is the subject of the complaint and the Independent Police Review Director, in writing, together with a copy of the written report, of the decision and of the complainant’s right under subsection 71 (1) to ask the Independent Police Review Director to review the decision within 30 days of receiving the notice. 2007, c. 5, s. 10.
Hearing to be held
(3) Subject to subsection (4), if at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police believes on reasonable grounds that the police officer’s conduct constitutes misconduct as defined in section 80 or unsatisfactory work performance, he or she shall hold a hearing into the matter. 2007, c. 5, s. 10.
Informal resolution
(4) If at the conclusion of the investigation and on review of the written report submitted to him or her the chief of police is of the opinion that there was misconduct or unsatisfactory work performance but that it was not of a serious nature, the chief of police may resolve the matter informally without holding a hearing, if the police officer and the complainant consent to the proposed resolution. 2007, c. 5, s. 10.
Notice
(5) Before resolving the matter informally, the chief of police shall notify the complainant and the police officer, in writing, of his or her opinion that there was misconduct or unsatisfactory work performance that was not of a serious nature, and that the complainant may, under subsection 71 (1), ask the Independent Police Review Director to review this decision within 30 days of receiving such notification. 2007, c. 5, s. 10.
No informal resolution until after Independent Police Review Director’s review
(6) The chief of police shall take no action to resolve the matter informally until,
(a) the 30-day period in which the complainant may ask for a review has expired, without a review being requested; or
(b) if the complainant asked for a review within the 30-day period, the Independent Police Review Director has completed its review and then, only if the Independent Police Review Director’s decision is such that there may be an informal resolution of the complaint. 2007, c. 5, s. 10.
Same
(7) Despite subsection (6), if the complainant notifies the chief of police in writing that he or she will not ask the Independent Police Review Director to conduct a review, the chief of police shall attempt to resolve the matter informally promptly after receiving such notification from the complainant. 2007, c. 5, s. 10.
Section 71
Request for review by Independent Police Review Director
71 (1) If a complainant has been notified under subsection 66 (2) that his or her complaint is unsubstantiated or under subsection 66 (5) 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. 2007, c. 5, s. 10.
Review by Independent Police Review Director
71 (2) Upon receiving a request to review under subsection (1), the Independent Police Review Director shall review the decision, taking into account any material provided by the complainant or the chief of police, and shall endeavour to complete its review within 30 days of receiving the request, but the Independent Police Review Director shall not hold a hearing into the matter. 2007, c. 5, s. 10.
Powers of Independent Police Review Director on review
71 (3) Upon completion of the review of a decision, the Independent Police Review Director may,
(a) confirm the decision;
(b) direct the chief of police to deal with the complaint as the Independent Police Review Director specifies;
(c) assign the investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force to which the complaint relates;
(d) take over the investigation of the complaint; or
(e) take or require to be taken any other action with respect to the complaint that the Independent Police Review Director considers necessary in the circumstances. 2007, c. 5, s. 10.
Costs
(4) If the Independent Police Review Director assigns the investigation of a complaint or the conduct of a hearing in respect of a complaint to a police force under clause (3) (c), the police force to which the complaint relates shall pay the costs of the investigation or hearing incurred by the police force to which the matter is assigned. 2007, c. 5, s. 10.
Notice
(5) The Independent Police Review Director shall notify the complainant, the chief of police and the police officer who is the subject of the complaint of its decision and the action taken by him or her under subsection (3). 2007, c. 5, s. 10.
Jurisdiction
[29] This Court has jurisdiction over this application pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[30] The decision of the Director is reviewable on a standard of reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.
[31] All previous decisions of the Director have been reviewed by this court on a reasonableness standard.[^9]
[32] For questions of procedural fairness, there is no standard of review. The court must inquire as to whether the requisite degree of procedural fairness was afforded the applicant, with regard to the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817.
[33] A court applying the reasonableness standard does not ask what decision it would have made in place of the administrative decision-maker, attempt to ascertain the range of possible conclusions, conduct a new analysis, or seek to determine the correct solution to the problem. Instead, the reviewing court must consider only whether the decision made by the decision-maker, including both the rationale for the decision and the outcome to which it led, was unreasonable.[^10]
[34] A reviewing court is not to interfere with the findings of fact and the weighing of the evidence by an administrative tribunal except in exceptional circumstances.[^11]
Deference
[35] The Director is vested with a discretionary power of decision under the PSA. The PSA is a public interest statute, and the Director is mandated to exercise those powers in a manner consistent with the public interest. As such, the Director's decision is entitled to deference.[^12]
Test on a Motion to set aside
[36] A motion to set aside the decision of a single judge is not a de novo hearing. A panel of the Divisional court can only intervene if the motion judge made an error of law or a palpable and overriding error of fact. The burden is on the moving party to establish a basis for the panel to set aside or vary the motion judge’s decision: Liu v. Ontario (Labour Relations Board) [2024] O.J. No.1011 at para 10.
A. Issues on applicant’s motion to vary or set aside Justice Davies’ May 3, 2024 order
[37] The applicant makes numerous submissions in his written material and oral argument before this court. I summarize his primary submissions as follows:
Issue 1: Did the motion judge make an error of law in the application of the test on a motion to quash?
Issue 2: Did the motion judge err in paragraph 30 of her Decision by inferring that the complaints other than the PC Kiproff interaction were unsubstantiated when they were simply screened out and not investigated?
Issue 3: Are there legal questions of public interest that required a panel of three judges?
Issue 4: Did the motion judge err in finding that judicial review was premature without the matter first proceeding through the statutory review process?
Issue 5: Did the motion judge make palpable and overriding errors of fact?
Analysis
Issue 1
The motion judge did not err in law in the application of the test on a motion to quash
[38] The motion judge set out the correct test for quashing an application for judicial review: it must be plain and obvious the application will fail: Unimac-United Management Corp. v. Metrolinx, 2016 ONSC 2032 at para.8. The applicant is incorrect that in order to grant the motion to quash, the motion judge was required to find that this was one of the clearest of cases that amounts to an abuse of process. That is the test for dismissing an action on the basis that it is an abuse of process and not the test for quashing an application: Unimac at paras.9-10, 72-87.
[39] I disagree with the applicant that the motion judge erred by not assuming the facts pleaded to be true, by accepting evidence and making findings of fact. While the test on a motion to quash may be the same test as in a motion to strike a pleading in a civil action–whether it is “plain and obvious” that the application cannot succeed–the applicant has not provided any case law to support that the procedural rules under Rule 21.01 apply to a motion to quash. The cases cited by the applicant that employ this procedural rule involve a motion to strike under Rule 21.01 and not a motion to quash an application for judicial review. The one case cited by the applicant where the court stated that the test on a motion to quash is the same as on a Rule 21 motion (Ash v. Chief Medical Officer of Heath of Ontario, 2022 ONSC 1778 at para.8) applies the “plain and obvious” test and makes no reference to assuming the facts pleaded to be true. The cases cited to the court that involved a motion to quash an application for judicial review considered evidence.[^13] Moreover, the applicant did not proceed on the understanding that evidence would be inadmissible on the motion to quash. The applicant provided his own responding motion record including an affidavit with evidence, sought to cross-examine and referred to the evidence from the cross-examination.
[40] I find no error in law in the application of the test on the motion to quash.
Issue 2
The motion judge did not err in paragraph 30 of her Decision by finding that the complaints other than the PC Kiproff interaction were unsubstantiated
[41] The applicant submits that the motion judge erred at para. 30 of her decision in inferring that the complaints other than the PC Kiproff interaction were unsubstantiated when they were simply screened out, which the applicant says undermined the purpose of s. 66 of the PSA and has substantial public interest ramifications. He submits that in the December 12, 2022 Investigation Report, the TPS only investigated, reported on, and substantiated a solitary misconduct allegation. The remainder of the applicant’s complaints, in his submission, were neither substantiated nor unsubstantiated and the officers not properly notified or interviewed. He submits that by not properly investigating all the applicant’s complaints as instructed, the TPS could not substantiate or unsubstantiate the majority of the applicant’s allegations. As a result, he submits he is unable to request a review by LECA.
[42] Para. 30 of the motion judge’s Decision states:
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.
[43] It was clear from the investigative report and the subsequent letter from the Chief of Police dated May 23, 2023, that the complaints were investigated, and that the evidence or information provided did not substantiate any of the allegations except the allegations against PC Kiproff from July 20, 2021. The applicant refers to evidence that investigatory steps requested by LECA were not taken and investigatory criteria were not met. This evidence goes to the adequacy of the investigation undertaken by the TPS and is not determinative as to whether any investigation was done. There was no palpable and overriding error in the motion judge’s conclusion that an investigation was done, triggering the review process under s. 71 of the PSA.
[44] Based on this, the motion judge concluded that the proper route to review the substance and outcome of the investigation was to pursue the review process under s. 71 of the PSA. Because the applicant failed to do this in a timely way, the motion judge correctly found that it was plain and obvious that the judicial review application would fail and granted the motion to quash.
Issue 3
There are no legal questions of public interest that required a panel of three judges
[45] The jurisdiction of the Divisional Court to grant a motion to quash is set out in the decision of Certified General Accountants Assn. of Canada v. Canadian Public Accountability Board, (2008), 2008 1536 (ON SCDC), 233 O.A.C. 129 (Div.Ct.) at paras.2-3 which is cited in Unimac at para.8:
- A motion to quash an application for judicial review properly comes before me as a single judge of the Divisional Court pursuant to section 21(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43:
Section 21
(3) A motion in the Divisional Court shall be heard and determined by one judge, unless otherwise provided by the rules of court.
- In presiding over this motion to hear and determine it, one option given to me pursuant to Section 21(4) of the Courts of Justice Act, supra, is to adjourn the motion to a panel of the Divisional Court:
(4)A judge assigned to hear and determine a motion may adjourn it to a panel of the Divisional Court.
[46] The applicant cites Ontario Place for All Inc. v. Ontario (Ministry of Infrastructure), 2024 ONSC 1783, in support of his argument that in the index case, given the context of a significant public law interest, the questions put forward in the judicial review application were more appropriately dealt with by a panel of the Divisional Court.
[47] This case is distinguishable from Ontario Place for All Inc. v. Ontario. That case involved the passage of legislation which purported to retroactively sanitize the initial allegedly unlawful conduct of the government. In that case, the applicant sought a declaration, notwithstanding that the government had passed legislation exempting the area at issue from the application of the Environmental Assessment Act, RSO, c.E.18.
[48] In the current case, there is legislation that allows LECA to review a police investigation and findings under s. 71 of the PSA.
[49] It is discretionary for a motion in the Divisional Court to be adjourned to a panel of the Divisional Court. There was no requirement that the motion judge do so, the applicant did not request that the motion judge do so nor was there any basis to do so. There is no merit to this argument.
Issue 4
The motion judge correctly found that judicial review was premature without the matter first proceeding through the statutory review process
[50] The applicant argues that the proposed judicial review raises a novel issue relating to whether the TPS was exercising statutory authority under s. 60 of the PSA (the authority to decide not to deal with a complaint). He argues that failure to address this novel issue was a legal error. The applicant criticizes what he says was the motion judge’s “assumption” that all allegations were “properly and similarly investigated.”
[51] The applicant is trying to improperly reframe this as a jurisdictional issue when what the applicant is asking for in reality is a review of the TPS investigation. The motion judge made no finding that the complaint allegations were all “properly and similarly investigated and found to be unsubstantiated like the one complaint that was substantiated”. Rather, the motion judge found that the applicant’s complaints were investigated, that his complaint about his interactions with PC Kiproff was substantiated, and it followed that the other complaints were not substantiated, thereby triggering the review process under s. 71 of the PSA. The motion judge made no conclusion on the adequacy of the investigation but found that a review of the investigation must go through the statutory process set out under s. 71.
[52] There is no merit to the applicant’s further argument that there is another novel question of law regarding whether an investigating police force, acting under s. 66 of the PSA is bound by a preceding Divisional Court order to the LECA to investigate or refer for investigation.
[53] Justice Corbett ordered:
That, pursuant to subsections 61(5) (b) and (c) of the Police Services Act, the Director either assigns the investigation of the portion of the applicant’s complaint not already under investigation by the Toronto Police Service to a police service or retains the investigation of that portion of the Applicant’s complaint.
[54] The order of Justice Corbett does not bind the TPS to do anything. TPS was not even named in the order. Once the complaint was assigned to the TPS, it was s. 66(1) of the PSA that required the TPS to conduct the investigation, not the order of Justice Corbett.
[55] The motion judge explicitly acknowledged that the Chief of Police was acting under s. 66 of the PSA but correctly found that does not mean that a decision is immediately subject to judicial review. The caselaw is clear that internal processes in an administrative proceeding must run their course before the courts will intervene.
[56] The motion judge found at paras. 31 and 32 of the Decision:
[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.
[57] Even if the TPA did not address some of the applicant’s complaints contrary to their statutory obligations, this would be something that would be reviewable by LECA under s. 71 of the PSA. On a review under s. 71 of the PSA, 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. If the TPS did screen out the allegations and refused to investigate certain allegations, this would still be reviewable by LECA and subsequently by a full panel of the Divisional Court.
[58] There was no error in the motion judge finding that judicial review was premature without the matter first proceeding through the statutory review process.
Issue 5
The motion judge did not make palpable and overriding errors of fact
[59] There is no merit to the argument that the motion judge made palpable and overriding errors of fact: none of the alleged errors of fact were material to the motion judge’s conclusion that the review process under s. 71 of the PSA applied to this case.
Additional issues raised by the applicant
[60] I find no error in the motion judge’s finding that the applicant filed his judicial review application late as against the TPS and that no motion to extend the time was brought. In any event, the motion judge found that this was not determinative on the motion to quash.
[61] There is no merit to the applicant’s submission regarding a denial of natural justice. Any failure by the TPS to observe the rules of procedural fairness could be reviewed during the statutory review under s. 71 of the PSA. If any denial of procedural fairness was not cured in a s. 71 review, then that itself could be subject to a judicial review but only after proceeding through the statutory review mechanism.
[62] The applicant complains that the motion judge did not review his mandamus request. The motion judge found, as she was entitled to do, that an alternative remedy existed in seeking a review of the investigation under s. 71 of the PSA. The motion judge found in paragraph 31 that 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 PSA. The motion judge acknowledged that the applicant had an application for judicial review against LECA (for denying an extension of the deadline to apply) and, that if that review is successful, LECA will review the adequacy of the TPS investigation. She found that permitting the applicant to seek judicial review of the adequacy of the TPS investigation now would render the statutory review process and the 30-day review period meaningless and create an absurd result.
[63] I find no error of law and no palpable and overriding error of fact. The applicant has not met his burden to establish a basis to set aside or vary the motion judge’s order.
B. Issues on application for judicial review of the Director’s Decision to deny the applicant’s request for review under [section 71](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html) of the [PSA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)
[64] The applicant alleges the Director made several errors of fact and law in the July 5, 2023 Director’s Decision denying the applicant’s request for review. He argues:
Issue 1: The Director failed to notify the TPS of Justice Corbett’s Order, dated August 15, 2022.
Issue 2: The applicant is not entitled to request a review under section 71 of the PSA because his complaints were neither substantiated nor unsubstantiated.
Issue 3: The Director improperly denied the applicant’s request for review given prior correspondence between counsel, the insufficiency of TPS reporting, and the complaint status available on LECA’s website.
Issue 4: The applicant was denied his right to procedural fairness.
[65] The applicant seeks to compel the Director to comply with Justice Corbett’s order and investigate the remainder of his complaints. In the alternative, he seeks to overturn the Director’s decision rejecting his request for review of the Chief’s Decision for delay.
Analysis
[66] To a large extent the issues raised on the application for judicial review are duplicative of the issues raised on the motion to vary the motion judge’s order.
Issue 1
There was no obligation on the Director to notify the TPS of Justice Corbett’s Order
[67] The applicant complains that the Director failed to notify the TPS of Justice Corbett’s order, dated August 15, 2022, to either assign the investigation of the portion of the applicant’s complaint not already under investigation by the TPS to a police service or retain the investigation of that portion of the applicant’s complaint.
[68] Justice Corbett’s order was made in the applicant’s previous judicial review application against the Director in court file 170/22. The TPS was not a party to the judicial review application in court file 170/22. The Director was not required to notify the TPS of the order. Instead, the Director provided the relevant direction to the TPS based on Justice Corbett’s order.
[69] The Director assigned the investigation of the portion of the applicant’s complaint not already under investigation to the TPS by way of a letter, and attached investigative plan, dated September 2, 2022. A copy of the original complaint was attached to the letter. In the investigative plan, a LECA investigator notes that the complainant alleges members of the TPS had several interactions with demonstrator members of the public. The LECA investigator further notes that the complainant alleged that members of the TPS used an unnecessary amount of force, acted in a discreditable manner, and exercised an unlawful or unnecessary exercise of authority, while interacting with members of the public. The LECA investigator notes that allegations pertaining to a third party, C.D., have been screened out from this complaint. The investigative plan confirmed that all but one of the applicant’s misconduct allegations (those involving C.D.) were to be investigated.
[70] There is no merit to Issue 1.
Issue 2
A s.71 review was available to the applicant
[71] The applicant argues that he is not entitled to request a review under s. 71 of the PSA because his complaints were neither substantiated nor unsubstantiated.
[72] This argument is without merit. As discussed above, a request for a s. 71 review by the Director was available to the applicant pursuant to s.71 within 30 days of receiving written notice of the Chief’s Decision, a copy of TPS’s investigative report and notice of the right to request a s. 71 review within thirty days, all of which the application received.
Issue 3
The Director did not improperly deny the applicant’s request for review
[73] The applicant submits that the Director improperly denied the applicant’s request for review given prior correspondence between counsel, the insufficiency of TPS reporting, and the complaint status available on LECA’s website.
[74] The applicant argues that as most of the specific instances of misconduct in his complaint were neither substantiated nor unsubstantiated in the investigative report, he was led to believe that they would be addressed in later reports which he claims is why he missed the thirty-day window to request a review.
[75] The applicant also argues that he was misled by an apparent error or “glitch” on LECA’s website which displayed the status of the applicant’s complaint as still under review as late as May 3, 2023. He submits that the confusion was only resolved after his counsel raised the issue and received a response from TPS on May 23, 2023, which confirmed that all remaining complaints had been investigated and deemed unsubstantiated. He submits that the Director erred in not applying May 23, 2023 as the date on which the thirty-day request for review deadline should have been triggered.
[76] The Director’s Decision addressed the applicant’s arguments for why the thirty-day deadline should be waived. It found that neither the Chief’s Report nor the TPS Investigative Report referred to any pending decisions and this undermined the reasonableness of the applicant’s perception that the investigation was ongoing. It found that the explicit warning in the Chief’s Decision of the thirty-day review deadline made it incumbent on the applicant or his counsel to inquire then about whether a second investigation was being or would be undertaken to preserve his right to review.
[77] The Director’s Decision noted that the applicant was represented by counsel and there were no concerns raised about his ability to meet the requirements to request a review.
[78] The Director’s Decision found that the applicant requested a review several months after being advised of the 30-day review deadline. Even after being advised on May 3, 2023 that LECA was satisfied with the investigation conducted by TPS and the conclusions reached, the applicant waited another five weeks before filing his request. Counsel did not provide any justification for this five-week delay in the request to the Director.
[79] The Director’s Decision acknowledged the applicant’s argument that OIPRD’s (LECA’s) website confirmed his belief that the investigation was still ongoing because up until at least May 3, 2023, the website said the status of the complaint “was currently before the Chief/Commissioner stage”. There was nothing unreasonable about the Director concluding that the applicant’s belief that there was a second investigation was uncertain or may not be reasonable and it was incumbent on him or his counsel to make inquiries.
[80] The Director held that upholding the thirty-day period, absent exceptional circumstances is critical to ensuring the integrity and certainty of the review process, timelines for all parties and procedural fairness to respondent officers whose jeopardy should not remain uncertain beyond the period prescribed by statute.
[81] There is no merit to the applicant’s argument that the Director’s counsel, having advised the applicant to consider filing a late request for review, somehow bound the Director to allowing the late request for review.
[82] Deference is owed to the Director’s determination of the appropriate criteria for waiving the thirty-day deadline and the rationale and outcome of the decision. There is nothing unreasonable about the Director’s exercise of discretion not to waive the thirty-day- deadline. There is no merit to the applicant’s argument that the Director improperly denied the applicant’s request for review.
Issue 4
The applicant was not denied his right to procedural fairness
[83] The applicant argues he was not given sufficient notice of his right to review significant portions of the alleged investigation or its findings. Though the Chief’s Decision outlined the steps necessary to request a review, the applicant submitted that it appeared to do so only with respect to the substantiated allegation against PC Kiproff, and not the applicant’s other allegations. He therefore claims that he was not provided with proper notice to request review of his other allegations, which is a breach of natural justice.
[84] The applicant also submits that during its investigation, the TPS only interviewed PC Kiproff, and refused to interview any of the other officers mentioned in his complaint. It also provided no evidence of having reviewed body camera footage, as was also requested by the applicant. In his submission, this failure to consider critical evidence constitutes another breach of natural justice and is further evidence that the TPS only “paid lip service” to the investigation. Since the LECA and TPS serve an important public interest, the applicant submits that they should be ordered to properly investigate the full scope of the applicant’s complaint. Finally, the applicant submits that the respondent has caused inordinate delay, which has exacerbated the psychological harm experienced as a result of witnessing police misconduct.
[85] I find that the applicant received sufficient notice of his right to review the investigative report for the reasons given by the Director for refusing to waive the 30-day deadline, as addressed above.
[86] As the motion judge found, a review under s. 71(1) of the PSA is the proper route for considering the adequacy of the investigation and whether the Chief’s decision was supportable. There is no procedural unfairness resulting from a failure to apply for a review, having been advised of the 30-day deadline.
[87] In this case, there is no heightened responsibility for the Director to consider the consequences of his decision on the applicant.
[88] In Vavilov, the Court held that where a decision involves the potential for significant personal impact or harm, there is a heightened responsibility on the part of decision-makers to ensure that the reasons demonstrate that they considered the consequences of the decision and that those consequences are justified. Responsive justification requires "that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature's intention."[^14] Examples of such "harsh consequences" include anything that would threaten an individual's life, liberty, dignity or livelihood.[^15]
[89] The PSA does not provide a complainant with substantive benefits or remedies. The complainant does not receive monetary awards or compensation and there are no personal or financial remedies a complainant can pursue. Rather, the outcome of the process is directed at remediating police conduct, improving police accountability, and increasing public confidence in police oversight.[^16]
[90] Complainants are entitled to a comparatively low level of procedural fairness with respect to investigations into complaints because they are not facing a concrete impact on their rights and interests. For example, there is no legal requirement to interview a complainant during a TPS investigation. It is the police officers who are at risk of findings of misconduct and the resulting consequences.[^17]
[91] The Director’s decision to deny the applicant his request for review of the Chief’s decision does not threaten the applicant’s life, liberty, dignity, or livelihood.[^18] In this case, there is no direct impact on the applicant. The applicant observed, but did not directly experience, officers allegedly using excessive force and abusing their authority during the removal of two encampments at Alexandra Park and Lamport Stadium on July 20 and July 21, 2021, respectively. Further, the police officer who had a direct interaction with the applicant on July 20, 2021, was found to have committed misconduct, and was disciplined by the police service. There was an employment consequence for the respondent officer.
[92] The applicant’s allegation that the respondent has caused inordinate delay, which has exacerbated the psychological harm experienced as a result of witnessing police misconduct is a bald allegation with no substance.
[93] There is no merit to the applicant’s argument that he was denied procedural fairness.
Conclusion
[94] The motion to vary or set aside the motion judge’s order of May 3, 2024 is dismissed. The judicial review application is dismissed. As the responding parties are not seeking costs, no costs are ordered.
___________________________ Backhouse J.
I agree. ___________________________ Ryan Bell J.
I agree. ___________________________ O’Brien J.
Date: September 23, 2024
[^1]: On April 1, 2024, the Community Safety and Policing Act, 2019, c 1 Sched 1 (CSPA) came into force, repealing the Police Services Act. As a result, the Office of the Independent Police Review Director (OIPRD), transitioned to become the Law Enforcement Complaints Agency (LECA). The Independent Police Review Director is now referred to as the Complaints Director: s. 216 of the CSPA. In this decision the respondent will be referred to as “LECA” and the “Director” regardless of whether the agency is exercising its powers under the PSA or the CPSA.
[^2]: The applicant’s complaint is still governed by the provisions of the PSA because it related to conduct that happened before the new act came into force on April 1, 2024.
[^3]: PSA, s. 61(5).
[^4]: PSA, ss 61(5)(a)(b) and 66(1)-(6). Murray v Independent Police Review Director (Ontario), 2023 ONSC 4372 (Ont Div Ct) at para 10.
[^5]: PSA, s. 71(1).
[^6]: PSA, s.71(2).
[^7]: PSA, s.71,
[^8]: Potter v. Office of the Independent Police Review Director, 2023 ONSC 5827 (Ont Div Ct) at para.15.
[^9]: See recent examples: Boua v Office of the Independent Police Review Director, 2024 ONSC 2172 (Ont Div Ct) at para 13; Anwar v Ontario (Independent Police Review Director), 2024 ONSC 3150 (Ont Div Ct) at para 8.
[^10]: Martinez v Office of the Independent Police Review Director, 2022 ONSC 887 (Ont Div Ct) at para 18; Yen v Office of the Independent Police Review Director, 2023 ONSC 1524 (Ont Div Ct) at para 22.
[^11]: Radzevicius v Workplace Safety and Insurance Appeals Tribunal, 2020 ONSC 319 (Ont Div Ct) at paras 16-20.
[^12]: Wall v Independent Police Review Director, 2013 ONSC 3312 (Ont Div Ct) at para 21.
[^13]: Adams v. Canada (Attorney General) 2011 ONSC 325, [2011] O.J. No. 207 at paras.29,45 50; Certified General Accountants Assn. of Canada v. Canadian Public Accountability Board, (2008), 2008 1536 (ON SCDC), 233 O.A.C. 129 (Div.Ct.) at paras.13-38,55-56.
[^14]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 133.
[^15]: Vavilov at para 135; Potter v. Office of the Independent Police Review Director, 2023 ONSC 4372 (Ont Div Ct) at para 80.
[^16]: Potter at para 81.
[^17]: Boua v. Office of the Independent Police Review Director, 2024 ONSC 3150 (Ont Div Ct).at para 16.
[^18]: Potter at para 81.