The Court allowed the appeal of the Applicant Police Commissioner (the “Commissioner”) from the decision of a motions judge who held that the disciplinary proceedings brought against the Respondents MacDonald and Jevons should not be stayed pending the outcome of the Commissioner’s application to prohibit the adjudicator from hearing the disciplinary proceeding

27. January 2009 0

Administrative law – Decisions of administrative tribunals – Police Commission – Police – Disciplinary proceedings – Adjudicators – Removal – Judicial review – Stay of proceedings – Procedural requirements and fairness – Jurisdiction

Ontario (Commissioner, Provincial Police) v. MacDonald, [2008] O.J. No. 5053, Ontario Superior Court of Justice, December 11, 2008, J.D. Cunningham A.C.J.S.C.J., K.E. Swinton and D.K. Gray JJ.

The Honourable L.T. Montgomery was appointed as the adjudicator (the “Adjudicator”) for the disciplinary hearing involving the Respondents MacDonald and Jevons (the “Respondents”). During the course of the hearing, the Adjudicator made comments to the prosecution expressing frustration with counsel. The Commissioner brought a motion to have the Adjudicator recuse himself and the Adjudicator refused to do so.

The Commissioner then brought an application for a Court Order that the Adjudicator be prohibited from continuing with the hearing. This application for judicial review has not yet been heard. The Commissioner also sought a Court Order to have the hearing stayed pending the outcome of this application for a prohibition order. The motion judge denied this application and the Commissioner appealed this decision. In addition, the Respondents cross-appealed asking for an Order quashing the Commissioner’s application for judicial review.

The Majority of the Court concluded that the motions judge erred in holding that the Commissioner did not have standing to bring the motion for a stay. The Commissioner, who controls the statutory tribunals process, must have standing to seek a review in order to preserve procedural fairness.

The Majority also held that the motions judge applied the wrong test for consideration on the application. In particular, the motions judge referred to the “three-pronged requirements of s. 4 of the [Judicial Review Procedure Act]” but this is not the test for a stay. The Majority then considered the proper test for granting a stay.

First, the Majority concluded that the Commissioner had satisfied the motions judge that there was a serious question to be tried. In this regard, the Majority concluded that the motions judge failed to articulate the test for whether a reasonable apprehension of bias existed and ought to have been satisfied that, on the basis of the test for reasonable apprehension of bias, there was a serious question to be tried.

Second, in respect of irreparable harm, the Majority held that irreparable harm would be suffered because, if ultimately successful, the parties would have continued to appear before a tribunal that did not have jurisdiction because of the reasonable apprehension of bias.

Third, the balance of convenience favoured the Commissioner because all that would have been lost was some scheduled hearing days before the rapidly approaching hearing date for the judicial review application.

The Majority also denied the cross-appeal of the Respondents.

The Dissent would have denied the appeal because the Commissioner failed to show irreparable harm because the public interest is properly considered at the balance of convenience stage and not the irreparable harm stage of the three-part test. There was no real prejudice shown by the prosecution.

Further, the Dissent held that the public interest favoured the continuation of the proceeding because nine days of hearing were already completed and only four more days would have completed the hearing.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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