The Chief of Police appealed from a decision of the Ontario Civilian Commission on Police Services (“OCCPS”) reinstating a police officer (“Kelly”) where the Court found that the OCCPS articulated and applied the appropriate standard of review of reasonableness when overturning the decision of a Hearing Officer to terminate Kelly

27. June 2006 0

Administrative law – Police – Disciplinary proceedings – Penalties and suspensions – Decisions of administrative tribunals – Civilian Commission on Police Services – Hearings – Evidence – Judicial review – Appeals – Standard of review – Reasonableness simpliciter

Toronto (City) Police Service v. Kelly, [2006] O.J. No. 1758, Ontario Superior Court of Justice, May 2, 2006, J.D. Carnwath, S. Chapnik and W.L. Whalen JJ.

Kelly joined the Toronto Police Service in 1989. Throughout his career, he held a number of positions and received a number of commendations for distinguished service. In 1996, Kelly joined the Northwest Field Command Drug Squad where duties included surveillance, preparing search warrants and undercover work. The workload at Northwest Drugs was very heavy. Between 1998 and 2001, a number of traumatic events occurred in Kelly’s personal life. The evidence indicated that these events combined with the workload at Northwest Drugs caused Kelly to become increasingly depressed. Sometime in the fall of 2001, Kelly began to deal with his emotional and psychological stress by self-medicating with cocaine. A civilian acting as a police agent ultimately gathered evidence with respect to Kelly’s cocaine use and Kelly was arrested and charged with various drug offences to which he pled guilty. Kelly received a suspended sentence. In addition to being charged criminally, Kelly was charged with four counts of misconduct contrary to regulations under the Police Services Act, R.S.O. 1990, P.15. Those charges resulted in a hearing before the Hearing Officer.

An initial appearance before the Hearing Officer took place on June 15, 2004, at which time Kelly pled guilty to two of the charges. Two of the charges were dropped. The prosecutor and counsel for Kelly provided a joint submission to the Hearing Officer on penalty, recommending that Kelly retain his employment subject to a number of conditions. The Hearing Officer decided that he could not accept the joint submission and, as a result, he ordered Kelly to resign from the Toronto Police Service within seven days or he would be dismissed.

Kelly appealed the decision of the Hearing Officer to the OCCPS. The OCCPS held that the decision of the Hearing Officer should be varied and that the joint submission on employment conditions should be imposed in place of termination. The OCCPS varied the decision of the Hearing Officer on the following bases:

  1. the finding of the Hearing Officer respecting Const. Kelly’s addiction was unreasonable;
  2. the findings about the Toronto Police Service’s duty to accommodate were clearly wrong;
  3. the Hearing Officer ignored evidence about management’s approach to Kelly’s situation;
  4. the Hearing Officer ignored the fact that the Toronto Police Service acknowledged there was a position for Kelly; and
  5. the penalty of dismissal was unduly harsh and punitive.

The Chief of Police appealed from the decision of the OCCPS.

The Divisional Court upheld the OCCPS’s decision finding that the OCCPS did appropriately articulate its view of the standard of review and how it should be applied to the decision of the Hearing Officer. The Court rejected the Chief of Police’s submission that the OCCPS had articulated a standard of review of correctness, noting that the OCCPS clearly set out that its role was not to second-guess the Hearing Officer’s decision and was limited to determining whether there was a manifest error in principle or disregard of proper considerations.

The Court agreed with the OCCPS that the Hearing Officer made a number of findings for which there was no evidentiary basis. The Court accepted that these findings led the OCCPS to the inescapable conclusion that the Hearing Officer did not ensure that the relevant factors in assessing penalty had been considered and appropriately weighed in a fair and impartial manner. The Court concluded that the OCCPS’s decision to order reinstatement of Kelly in terms of the joint submission was reasonable and dismissed the appeal.

To stay current with the new case law and emerging legal issues in this area, subscribe here.