Judicial review prior to conclusion of administrative proceeding not allowed on allegation of bias alone

Administrative law – Decisions reviewed – Police Complaint Commission – Judicial review application – Premature – Bias – Delay – Procedural requirements and fairness – Police – Professional misconduct or conduct unbecoming – Disciplinary proceedings

Grimsmo v. Jones, [2021] B.C.J. No. 637, 2021 BCSC 575, British Columbia Supreme Court, March 30, 2021, W.A. Baker J.

The petitioner Constable Grimsmo sought judicial review of a decision by the discipline authority David Jones (“DA”) to not recuse himself following the petitioner’s request that he do so. The petitioner had made this request on the basis that the DA had already heard proceedings brought against another constable who was involved in the same alleged misconduct as the petitioner, and determined the allegations in that case were made out. The proceedings against the petitioner involved the same evidence and same issues of fact as the proceedings against the other constable.

The petitioner sought judicial review of the DA’s decision to not recuse himself prior to the completion of the discipline proceeding on the basis of a reasonable apprehension of bias, alleging that the DA had failed to comply with requirements of procedural fairness. The DA’s position was that the application was premature.

Justice Baker reviewed the law regarding judicial reviews being sought prior to the conclusion of administrative proceedings, which confirmed that interference will only occur in exceptional circumstances. Considerations include hardship to the applicant, including an element of urgency; waste; delay; fragmentation; strength of the case; and statutory context.

The application was dismissed, as Justice Baker found there were no exceptional circumstances that allowed judicial review before the completion of the hearing in this case. He found that the allegation of bias alone is not sufficient to meet the test of extraordinary circumstances. He also observed that there was a mechanism within the Police Act, RSBC 1996, c.367, for review before an independent adjudicator if the petitioner was not satisfied with the DA’s decision. If the petitioner was dissatisfied with the outcome before the DA, evidence from the discipline hearing would form the basis of a review on the record, or would be replaced with a de novo public hearing in accordance with the regime established by the legislature in the Police Act. Justice Baker observed that a judicial review would not finally dispose of the issues in this case; rather it would just put the process back at the beginning, and would open the door for further applications for judicial review on other issues as the matter proceeds.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at jbarnum@harpergrey.com.

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