A police constable’s application for certiorari of Chair of the Scotia Police Review Board to extend time to complete an investigation was dismissed. Correctness is the standard of review for interpreting the regulation as permitting an extension after the investigation was complete. Patent unreasonableness is the standard respecting his findings and exercise of discretion in granting the extension.

26. March 2002 0

Administrative law – Judicial review – Standard of review – Correctness test – Patent unreasonableness – Questions of jurisdiction – Extension of time – Police – Disciplinary proceedings – Privative clauses

Symington v. Halifax (Regional Municipality) Police Service, [2002] N.S.J. No. 112, Nova Scotia Supreme Court, February 8, 2002, Moir J.

Constable Symington was the subject of internal disciplinary proceeding within the Halifax police force. The Police Act regulations specified that the investigation shall be completed within 60 days. The time limit could be extended upon application to the Chair of the Nova Scotia Police Review Board. The investigation was completed after the 60 days expired. After that, the Chair extended time. Constable Symington challenged the Chair’s decision by way of an application for certiorari.

The essential question on standard of review is whether and to what extent the legislature intended the court to extend deference to the decision under review. The four factors in Pushpanathan v. Canada (Minister of Employment and Immigration), [1998] 1 S.C.R. 982 were considered: (1) the existence of a privative clause; (2) the expertise of the administrative tribunal or decision-maker; (3) the purpose of the statute as a whole and the particular enactment; and (4) the nature of the problem: a question of law or fact.

The standard of correctness applied with respect to the Chair’s decision that the regulation authorized an extension after the investigation was completed and that the legislation authorized him to extend the time beyond that which was requested. These were questions of statutory interpretation.

Patent unreasonableness was the standard respecting his findings and exercise of discretion to allow the extension. A high level of deference is owed by the Court to the Chair on subjects whether or not the extension and the length of that extension would cause undue prejudice to the Constable.

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