COURT FILE NO.: 360/99

DATE: 2000/05/02

Allan O'Brien, for the Applicants

Guy J. Pratte and Johanne M. Asselin, for the Respondent,The Chief of Police of the Ottawa-Carleton Regional Police Service

D. Thomas H. Bell, for the Respondent, Ontario Civilian Commission of Police Services

Steven M. Boorne, for the Intervenor, Ontario Association of Chiefs of Police

Ian J. Roland, for the Intervenor, The Police Association of Ontario

HEARD: May 2, 2000

COO J.: (Orally)

[1] The first question on this application for judicial review is did the Commission have the statutory authority to direct that there be a hearing on the issue of unsatisfactory work performance on the part of the applicants arising out of the events of a car surveillance and 'take-down' as it is euphemistically described in the material.

[2] The two first-named respondents, who are not represented before this Court, were the subject matter or target of police activity in regard to what the latter understood or thought was a stolen car.

[3] Supported by the provisions of section 56(1) of the Police Services Act, these respondents, as members of the public, complained about the conduct of five police officers, two of whom were the applicants. The Chief of Police, after causing an investigation to be conducted, in effect advised the complainants that the conduct of the officers, did not constitute misconduct under section 74 of the Police Services Act and decided to take no action except for administrative steps in regard to training and policies to be followed in the future based on what happened on the occasion that generated the complaints.

[4] The complainants, pursuant to section 72(1), asked the Commission to conduct a review of that determination . The Commission ordered that there be a hearing based not on misconduct in the sense of breaches of section 74, but unsatisfactory work performance, a legislatively undefined term.

[5] The position of the applicants, supported by the Chief and the intervenors, is that work performance complaints are governed by the provisions of Regulation 123/98, which, in Part IV sets out a number of preconditions to the Chief making a complaint against an officer, including terms familiar to those involved in employment and labour relations law, and involving training and provision of a reasonable opportunity to improve performance. It is argued that the Commission has, by its order, improperly circumvented these essential conditions.

[6] The Commission's position is that independent of any condition precedent to a hearing based on a Chef's complaint under section 56(2), the Commission has the statutory authority under section 72(8) to direct a hearing, just as the Chief had a right found in the words of section 64(7), in the case of a complaint by a member of the public, to hold a hearing if he or she is of the opinion on the basis of investigation and review of the written report called for, that the officer's conduct may constitute misconduct or unsatisfactory work performance.

[7] The argument of the Commission on this point is unanswerable. It does no violence to the labour relations aspects of the legislation, nor does it in effect read out of sections 25 and 64(7) that which is clearly them. The term 'unsatisfactory work performance' is used in various contexts in the statute, including ones-in which there was clearly no intent- to incorporate the procedures set out in the Regulation, see for example provisions relating to performance of chiefs of police. General principles of statutory interpretation require the term to be construed in the same manner in each section of the Act in which it is used.

[8] As part of this interpretive process it is worth remembering that the Commission is given first instance power to inquire into and conduct a hearing about misconduct or unsatisfactory work performance of an officer, and if it concludes that either existed to exercise the, alternative disciplinary steps listed in section 68 that are also available to a chief of police after a hearing directed by hi-in or her. There is nothing in section 25 to suggest that the labour relations steps set forth in the Regulation must be applied at any stage of its procedures.

[9] It may be that a legislative system in which any complaint or inquiry and hearing about unsatisfactory work performance had to be preceded by the steps set out in the Regulation might be argued to be more fair to police officers and chiefs from a labour relations perspective. However there is no rational interpretation of the present language that can produce that result. As well the legislature may well have considered &at public interest factors spoke against any such regime.

[10] It is urged on behalf of the applicants that there must be some foundation in a course of conduct over time, not simply resting upon events on a specific occasion, before the unsatisfactory work performance aspect of an officer's duties may be the subject of a hearing or a supported public complaint, even if there is statutory support for a hearing on this subject without the preconditions for a chief s complaint being pursued. The argument is attractive and would give meaningful distinctions to the two bases for pursuit of discipline against an officer.

[11] Unfortunately the Commission has given no guidance at all on this subject by way of any reasons, in its decision, which took the form of a letter addressed to the complainants or in any specifications to the Chief of Police.

[12] This submission is logically related to the second aspect of the applicants complaint since there is nothing in any decision letter from the Commission that purports to come to grips with the concept of conduct over time, or what event or series of events the Commission purported to rely on in coming to its conclusion. Rather there is simply an abrupt reference to a single time-limited police operation.

[13] This second aspect of the applicants' complaint to this Court has to do with the lack of any precision or detail in the Commission's order, this in light of the recent decision of this Court in Browne v. Ontario Civilian Commission on Public Services and The Commissioner of the Ontario Provincial Police, November 9/99 (Court File 229/99) in which it was held that section 72(8) that there be specificity on the part of the Commission with respect to the substance and form of any directed hearing. In that case it was said:

when the Commission, pursuant to [s. 72(8)] of the Act, orders a hearing to be held, the Commission is compelled to set out the allegation(s) with such particularity that the allegations framed by the Commission under [s. 72(8)] of the Act constitutes the actual charge for the hearing under [s. 72(11)] and constitutes, when transmitted to those who require, notice, adequate notice under [s. 72(10)] of the Art.

(It should be noted for the record that this decision is the subject of an application for leave to appeal. presently scheduled to be heard on May 29. All counsel before us wanted the before us to proceed now.)

[14] There is much to be said for the argument that in a situation such as this, in which a designated body is to determine whether any and if so what charge is to be pursued against a person, the approach set forth in Kupyean v. Royal College of Dental Surgeons of Ontario, (1982),37 O.R. (2d) 737 at pp 746 be adopted.

[15] The Commission's decision is to be found in a letter dated October 9, 1998 to each of the complainants, a copy of which was apparently sent to the applicants, and to the Chief as an enclosure with the letter addresed to him on the same day. It is to be noted that the letter addressed only to the Chief contains more detail about what was in the Commission's mind than does the letter of decision itself, but that no reasons were given by the Commission for its decision. While there may not be any strict obligation to give reasons, their absence in the context of the statutory requirement of specification and the balling of any right of appeal in section 72(12), is important, We do not accept that the letter to the Chief may be considered as part of the decision, although it falls within the direction to the chief that the Commission was legislatively directed to specify under the language of section 72(8). In response to the requirement dealt with in Browne that it "...direct the chief of police ... to process the complaint as it specifies", the Commission ordered that "...the actions of [the applicants] should be dealt with in accordance with s. 64(7) of the Police Services Act as a complaint of unsatisfactory work performance of a serious nature".

[16] Them is no defined standard to be applied to cam involving allegedly unsatisfactory work performance . That alone makes the provision of the sort of information spoken of in Browne even more important, both to those to be charged and those who would have the responsibility of preparing and presenting the case against them.

[17] Them followed communications at least by way of correspondence as to what had been or was intended to be specified, with an ultimate declination on the part of the Commission, as a prospective appellate body under section 70(1), to deal with the matter.

[18] The requirements of Browne were not met in this case when one considers their decision letter to the complainants, the lack of any reasons, and the very little contained in the private letter to the chief. That is fatal to the validity of the decision made under section 72(8). The application will therefor be allowed and the decision quashed.

[19] Costs will be to the applicants,payable by the Commission fixed at $2 be no other costs.

COO J.

SOMERS J.

MOLLOY J.

Released: MAY 09 2000

COURT FILE NO.: 360/99

DATE: 20000509

COO J.

Released: May 9, 2000