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1 Johnstone & Cowling llp J&C POST June 2014 VOL 6 NO. 2 OCPC Allows Motion to Defer When Criminal Litigation is Pending In the recent case of Noor Khan v. York Regional Police Service, the Ontario Civilian Police Commission (the OCPC ) allowed a motion to defer its proceedings while the appellant concentrated on criminal litigation involving the same incident. Constable Noor Khan ( Cst. Khan ) was found guilty of discreditable conduct, deceit and two counts of insubordination at a hearing before Superintendent Graeme Turl. At a subsequent hearing on penalty, Cst. Khan was ordered to resign within 7 days or be dismissed. The misconduct alleged at the disciplinary hearing related to interactions between Cst. Khan and RC on January 27, At a criminal trial relating to the same conduct, Cst. Khan was found guilty of sexually assaulting RC. At the time of the motion before the OCPC, Cst. Khan had not been criminally sentenced for the sexual assault conviction and maintained his appellate rights. Cst. Khan brought a motion to extend the time to perfect his appeal before the OCPC until the conclusion of all criminal litigation relating to the events of January 27, Counsel for Cst. Khan made submissions arguing that it would be unfair and costly for the OCPC to force Cst. Khan to continue with the appeal until his criminal litigation had been completed.

2 The OCPC agreed with the submissions from Cst. Khan s counsel. The Commission held that since the criminal case and the disciplinary appeal arose from the same incident, the disciplinary appeal should be heard upon completion of the criminal proceedings. The OCPC explained that in coming to its, it relied on the Supreme Court of Canada s decision of Toronto v. C.U.P.E. 79. In that case the Supreme Court articulated that when a lower tribunal and a criminal court are dealing with the same facts, the criminal proceeding takes precedence. The Commission granted the motion and directed Cst. Khan s counsel to inform the Commission once the criminal proceedings were complete. This case offers a reminder that Tribunals will show deference to criminal proceedings when the same set of facts are at issue. Dryden Police Service Board Gets Permission to Contract Out Communications The OCPC has given the Dryden Police Services Board (the Board ) permission to shift its communications operations to the Owen Sound Police Service ( Owen Sounds P.S. ). The Board brought an application pursuant to section 40 of the Police Services Act ( PSA ), in order to terminate the employment of its communications staff. The Board entered into negotiations with the Owen Sound P.S. to contract out its communication services. Accordingly, the Board sought permission to terminate eight full-time communication employees, one full time communication supervisor, and four part-time employees (the Effected Employees ). The proposal from the Board was delivered to the OCPC, on December 5, Subject to the consent of the OCPC the Board negotiated a five year police dispatch and 911 call-taking agreement with the Owen Sound P.S. to provide their dispatch and communication needs. The proposal outlined the financial difficulties facing the City of Dryden and the Board. The communication centre s annual deficit was described as too large a financial burden. The proposal articulated the efforts that were made by the Board in order to reach an agreement that could have kept the communication centre in the City of Dryden. The Board traced the breakdown in arbitration between itself and the effected employees. It further referred to the options the Board considered, culminating in the Board s decision to close the Communications Centre effective March 31, The Board also held a community consultation meeting in order to elicit feedback from the community regarding its proposal. When an application for termination pursuant to section 40 of the PSA has been made, the OCPC has developed a practice of holding a public meeting with the affected community in order to give the residents an opportunity to comment on the termination proposal. The OCPC held its own public meeting. At the meeting the panel members advised the attendees that there were two concerns about which the OCPC must be satisfied: 1) That after the closure of the Dryden Communications Centre, and after contracting out the Dryden Police Service s (the Service ) communications and dispatch functions to the Owen Sound P.S., the Service will continue to deliver adequate and effective policing in the community; and 2) That the effected employees receive fair severance packages. The Mayor of Dryden, the Chair of the Board, counsel for the Board, and the Chief of the Service all made submissions to the OCPC, outlining the need for

3 contracting out the services, while guaranteeing that the affected employees would get appropriate severance packages. They further articulated that other similar communities had contracted out their services to the Owen Sound P.S. and have had very positive results. Finally the Chief of the Owen Sound P.S. assured the panel that they could meet the May 27, 2014 deadline. In its decision, the OCPC concluded that the Board had presented a sound rationale in support of its position. The OCPC was satisfied that the Service would be able to continue to provide adequate and effective policing once they outsourced their communication services to the Owen Sound P.S. Owing to an agreement between the Association representing the Effected Employees and the Board regarding severance packages, the Commission was satisfied that it did not need to comment on that issue. The Commission consented to the Board s proposal. This case is a succinct re-iteration of the proper processes that must be followed pursuant to the PSA in order for a Police Services Board under section 40 of the PSA. Ontario Court of Appeal Clarifies Judicial Review Procedure For OIPRD Decisions In Endicott v. Ontario (Independent Police Review Office), the Ontario Court of Appeal affirmed that a decision made by the Office of the Independent Police Review Director (the OIPRD ) to dismiss an investigation, amounts to a statutory power of decision. It also clarified what material must be included in a record of proceedings upon a judicial review of the decision. The respondent, Claire Endicott, is an elderly woman in her 70s, who suffered from a neurodegenerative disorder. In April 2011, Ms. Endicott ordered a helium hood from the United States, which is a device that is used to aid in suicide. Members of the United States Federal Bureau of Investigation became aware of Ms. Endicott s order of the helium hood and contacted the Toronto Police Services ( TPS ). TPS dispatched officers to make contact with Ms. Endicott at her Toronto residence. She was not at her home at the time, as she was spending time at a cabin in Muskoka. According to Ms. Endicott the TPS officers spoke to her neighbours and obtained the phone number of her son and the phone number to her cabin. Shortly thereafter, two Ontario Provincial Police ( OPP ) officers arrived at the Muskoka residence and allegedly demanded that Ms. Endicott accompany them. After an hour-long standoff, she agreed to be taken by ambulance to be examined in hospital. The doctor who examined her found that she was cooperative and that she did not have any suicidal intentions. In the weeks that followed, Ms. Endicott filed two separate complaints with the OIPRD. Following both complaints the OIPRD sent letters to Ms. Endicott saying that there were no violations of the Police Services Act ( PSA ) and therefore it was closing its file concerning her complaints. On February 1, 2012, Ms. Endicott brought an application for judicial review of the OIPRD s decision not to retain her complaints. The OIPRD conceded that the decision was subject to judicial review; however, it was argued that the decision did not involve the exercise of a statutory power of decision as defined in the Judicial Review Procedure Act ( JRPA ). Accordingly, the OIPRD argued that it was not required to produce a record of proceedings (the Record ) as contemplated by s. 10 of the JRPA.

4 The Court identified two issues for consideration: 1. Whether or not the decision involved exercising a statutory power of decision as defined in the JRPA and therefore subject to producing a record of proceedings. 2. If he is subject to producing a record of proceedings, what records would need to be included therein. Prior to being heard at the Court of Appeal, this case was heard twice at the Divisional Court level, in front of a single judge and subsequently in front of a threejudge panel. Both the one judge and three judge panels agreed that the Director was invoking a statutory power of decision as defined by the JRPA, but differed on what material must be included in the Record. The panel of the Divisional Court held that a proper Record would include all documents that concerned the complaint. Before the Court of Appeal, the OIPRD argued that the lower courts erred when interpreting the PSA provisions. It was argued that the complainant did not have a right to have her complaint deal with, rather, the PSA gives the OIPRD broad statutory discretion to screen out complaints. The OIPRD contended that, a decision to screen out a complaint did not constitute an exercise of a statutory power. The Court of Appeal disagreed with the OIPRD s postion, upholding the interpretation of the Divisional Court: a proper reading of the relevant statutory provisions makes it clear that a person who lodges a complaint has the right to have that complaint pursued unless a decision is taken by the Director pursuant to the PSA that the complaint should be screened out. The complainant s right to have the complaint pursued is thereby ended, in other words the complainant s legal right is thereby decided. The Court of Appeal clarified that while a complainant has the right to have their complaint dealt with, it is within the power of the OIPRD to then decide whether or not the complaint should be investigated further, or whether it should be screened out pursuant to s. 60 of the PSA. Accordingly the Court found that the OIPRD was subject to s. 10 of the JRPA and therefore required to provide a Record. With respect to what should be included in the Record, the Court disagreed with the Divisional Court. The Court of Appeal held that the Record need not include all documents that were before the OIPRD concerning the complaint. Instead the Court articulated a more contextual approach, finding that the contents of a Record could differ substantially depending on the particular matter being decided. In this particular case, the Court found that the Record must include: 1. The complaint form and any attachments provided by the complainant; 2. The reasons for decision; and 3. Information from the Director s files that is directly relevant to or was part of the screening decision and is not subject to solicitor/client privilege, deliberative secrecy or statutory confidentiality. The Court opined, that to include anything more than the above would be confusing and unnecessarily onerous. The Court did caution that in certain cases, depending on the nature of the complaint, that a Record could be required to contain materials that go beyond the list articulated above. This case offers an important clarification concerning the role of the OIPRD. When choosing to dismiss complaints, the OIPRD is exercising a statutory power of decision. If the decision is subject to a judicial review, the Director will be required to produce a Record. The Court offered a much-needed clarification regarding what documentation the OIPRD will be obligated to provide in these instances.

5 Ontario Human Rights Tribunal Says No Waiting For Judicial Review The Human Rights Tribunal of Ontario ( HRTO ) recently released a pair of cases where it denied motions to defer applications in order to wait for a judicial review decision. Case #1 In Khan v. Toronto Police Services Board, the HRTO addressed an application by the Toronto Police Services Board (the Board ) to defer the application of Mr. Khan, pending the completion of a judicial review in a different case. Mr. Khan s application, which was commenced on July 3, 2013, alleged that he was discriminated against contrary to the Human Rights Code (the Code ). The alleged incident took place on or around June 20 or 21, 2013, and involved Mr. Khan being arrested and placed in police custody. On July 3, 2013 he made a complaint concerning the incident to the Office of the Independent Police Review Director ( OIPRD ) under the Police Services Act ( PSA ). In a letter from September 2013, the OIPRD instructed Mr. Khan that they would be taking no further action regarding his complaint. In its response to this application, the Board requested that the HRTO defer consideration of the application until there is an outcome of the judicial review in Her Majesty the Queen in Right of Ontario v. de Lottinville ( de Lotinville ). The judicial review stemmed from a trio of applications that were addressed by the HRTO in Claybourn v. Toronto Police Services, a case that was previously reported in the October 2013 J&C LLP Newsletter. In Claybourn the HRTO held that complainants could pursue an application pursuant to the Code, while already having made a complaint to the OIPRD pursuant to the PSA. The HRTO denied the request to defer the application, articulating that it has been consistent in denying all motions to defer in anticipation of the de Lottinville decision. Case #2 In Sivandian v. Toronto Police Services Board, the Tribunal once again considered a request to defer from the Board to await the result in de Lotinville. Like in Khan, the Tribunal denied the request from the Board and instead heard the evidence of Mr. Sivandian. The application stemmed from a March 17, 2012, incident in which the car of Mr. Sivandian was towed from a Tim Horton s parking lot. According to Mr. Sivandian, when he went to retrieve his vehicle from the towing company, he discovered what he believed was new damage to his car. The person at the counter told Mr. Sivandian that the damage would be assessed and he should return to speak with the manager. Mr. Sivandian also asked the clerk at the counter for a copy of the tow card made out by the police officer who authorized the towing of his car. Mr. Sivandian was told if he wanted to retrieve the tow card he would have to request it from the police station. He subsequently made three unsuccessful attempts to retrieve it. On March 19, Mr. Sivandian followed up at the towing company. He alleged that the manager said the towing did not cause the damage to his car and that he would not supply a copy of the tow card. The manager referred him to a police officer that was at the office. Mr. Sivandian spoke with officer Beardsall, who told the applicant that the damage to the car was recorded on the tow card. There was a disagreement between Mr. Sivandian and officer Beardsall about the car s damage. Mr. Sivandian alleged that the officer became angry and walked towards him using abusive language. He alleged that officer Beardsall continued his use of inappropriate language and eventually said that he didn t want to see him again.

6 Following this encounter, Mr. Sivandian went to the police station to file a report. At the station he talked to a sergeant regarding the incident and requested an apology from the officer. Ten months later, he filed a complaint with the OIPRD, which was dismissed. The Board again requested that the HRTO defer consideration of the application until there is an outcome of the judicial review de Lotinville. Again, the HRTO denied this request. These cases highlight the insistence from the HRTO that it will not delay proceedings in order to await the results of an application for judicial review. Johnstone & Cowling llp 441 Jarvis Street, Toronto, Ontario M4Y 2G8 Telephone: Fax: