Administrative law – Police – Disciplinary proceedings – Judicial review application – Premature – Judicial review – Procedural requirements and fairness – Bias – Mootness
Sommers v. Ontario (Civilian Commission on Police Services),  O.J. No. 1838, Ontario Superior Court of Justice, May 10, 2005, J.D. Carnwath, J.R.R. Jennings and K.E. Swinton JJ.
The Applicant police officers were the subject of civilian complaints. Although originally cleared by initial investigations, the respective complainants requested a review by the Respondent Commission, as provided for in the Police Services Act, R.S.O. 1990, c. P.15. Following those reviews, the Applicants were ordered to proceed either to disciplinary hearings or, in other cases, informal resolution.
The major issue for the Court was whether the applications were premature. The Court held that it was well-settled that courts should not interrupt administrative proceedings, particularly where the interruption will lead to delay. Judicial review should be discouraged until a final decision is rendered and all issues can be reviewed in an appeal on a full record. Here, nothing had been finally decided by the Commission. All of the issues, including those that were being raised on these applications, could be fully argued before the Hearing Officer, where the Applicants would have full opportunity to present evidence and make submissions.
The Applicants also argued that there had been breaches of their rights to procedural fairness. The Court held that procedural fairness is applied in varying degrees of strictness depending on the circumstances of the case, as set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817. The Baker decision set out five factors for a court to consider in determining the level of procedural fairness that would be required in a specific situation: (1) the nature of the decision; (2) the statutory context of the decision; (3) the significance of the decision; (4) the legitimate expectations of those affected by the decision; and, (5) the choice of procedure.
Taking the five factors into consideration, the Court concluded that the level of procedural fairness to be considered in these proceedings at this juncture was at the very low end of the scale. Particularly important to the Court was the fact that this was an interim decision that did not compromise the officers’ substantive rights, and that s. 72 of the Act revealed a virtually complete code with respect to how the Commission should proceed upon receipt of a complaint. The stricture against fragmenting an administrative proceeding can only be overcome in exceptional circumstances, or where there has been a fundamental failure of justice.
The Court moved on to consider the specific allegations of procedural unfairness. The first was that the Commission had failed to disclose the names of the members of the Commission who carried out the review. The Court held that those names were now known to the Applicants and any potential prejudice that might have been experienced had been overcome and, in any event, was not sufficient to warrant relief by judicial review at this stage.
The second allegation, that the Commission had relied upon a case summary prepared for it by its Case Manager, which was not given to the Applicants, was said to be equally without merit. Decision makers are entitled to rely on summaries of materials submitted for their considerations, including commentaries made on those materials and recommendations as to possible courses of action.
The third allegation was that the Applicants were not notified of the requests for review, given copies of the Complainant’s submissions in support of a review, and not given an opportunity to be heard in response to those submissions. The Court held that this process was not so unfair as to warrant intervention by the Court.
Fourth, the Applicants alleged that the Commission made findings of fact that gave rise to a reasonable apprehension of bias. The allegation of bias was premature and without evidentiary foundation. In the result, there was no procedural unfairness in the conduct of the reviews by the Commission.
One of the Applicants also submitted that the Commission had exceeded its jurisdiction in sending to a hearing a woman’s complaint that she had been improperly strip-searched because the officer was not the subject of the initial complaint, but merely a witness. The Court held that, on the facts of this case, the Applicant had notice of the complaint and an opportunity to respond even though he was not individually named in the complaint.
Finally, the Court concluded that the applications of two of the officers were moot, since they had both participated in an informal resolution of the complaints and both accepted discipline in November 2003.
In the result, the applications for judicial review were dismissed.
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