Without a statutory right of appeal, the Chief of Police is precluded from seeking judicial review of a decision made by one of his delegates under the Police Services Act

Administrative law – Decisions of administrative tribunals – Police Commission – Police – Disciplinary proceedings – Hearings – Judicial review – Appeals – Stay of proceedings – Procedural requirements and fairness – Compliance with legislation

Watson v. Catney, [2007] O.J. No. 231, Ontario Court of Appeal, January 26, 2007, J.I. Laskin, J.C. MacPherson and S.E. Lang JJ.A.

Police Constable Watson was acquitted of criminal charges of theft and possession of stolen property. In relation to the same conduct, he was also charged with disciplinary offences under the Police Services Act (the “PSA”). After his criminal acquittal, Watson moved for a stay of discipline proceedings on the basis of abuse of process. The Hearing Officer granted Watson’s motion and stayed the disciplinary proceedings. Under the PSA, the Chief has no right to appeal the Hearing Officer’s decision; however, the Chief applied for judicial review. A Panel of the Divisional Court agreed, quashed the stay of proceedings and remitted the matter to a disciplinary hearing. Watson appealed this decision.

The principal issue on appeal was the capacity of an administrative official to seek judicial review of his or her own decision. The Court found that the structure and wording of the PSA established that once a discipline hearing is ordered, the Hearing Officer will either be the Chief or the Chief’s delegate. Accordingly, when the Chief chooses to appoint a Hearing Officer, the Chief and the Hearing Officer are synonymous. The Chief is central to the hearing process itself, either by conducting the hearing himself, or choosing his delegate. The PSA grants a right of appeal to the Complainant, but not to the Chief. The Court held that if the Chief cannot challenge the decision of his delegate by way of appeal, he should not be able to do so by way of judicial review.

The Court held that if, in the absence of an explicit right of appeal, the Chief were granted standing to review his decision or, as in this case, the decision of a police officer he has delegated to hold the hearing on his behalf, it would erode confidence – on the part of police generally and the public at large – in the independence and fairness of the discipline process. The PSA reflects principles of fairness and natural justice in that it does not allow the Chief, who has control of virtually all aspects of the discipline process, to seek to overturn a decision he does not like by a Hearing Officer he has appointed.

Accordingly, the Court allowed the appeal, set aside the Order of the Divisional Court and reinstated the decision of the Hearing Officer.

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