|
Judicial Review - Record - Supplementing Record. Douris v. Law Enforcement Complaints Agency
In Douris v. Law Enforcement Complaints Agency (Ont Divisional Ct, 2025) the Divisional Court dismissed a motion made within a LECA JR, here seeking to supplement the LECA record:[1] Mr. Douris has brought an application for judicial review against the Law Enforcement Complaints Agency (LECA), alleging that the decision not to investigate his complaint against a detective of the Toronto Police Service (TPS) was unreasonable. On this motion, Mr. Douris seeks to compel LECA to add documents to its record of proceeding (ROP) on the application.
....
[8] Judicial review is not a de novo hearing. The question is whether the statutory decision was justified based on the facts and law before the decision-maker. Discovery of documents is not available on judicial review: Lachance v. Ontario (Solicitor General), 2023 ONSC 7143, at para. 15.
[9] I disagree that the ROP must include material that was “before,” but not “put before” the decision-maker. Administrative tribunals are typically dealing with many files at any given time. In some cases, like this one, they may have several files initiated by the same applicant/complainant. The administrative decision-maker is not required to produce all documents in its possession that were not put before, or considered, by the decision-maker in an individual case.
[10] Mr. Douris’ central argument is that the disputed documents ought to have been included in the record because they are “directly relevant” to the screening decision, as described in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, at para. 42. Mr. Douris underscores that his notice of application refers to the March 15, 2024 complaint.
[11] The problem with this submission is the notice of application only refers to the March 15, 2024 complaint by way of background and context to Mr. Douris’ other allegations. It does not rely on that complaint as a substantive basis to support his allegations that the Complaints Director’s decision was unreasonable and procedurally unfair.
[12] Mr. Douris’ arguments on this motion focus primarily on the case analysis form. He notes that, in the case analysis form for the current complaint, LECA staff recommended screening the complaint in and referring it to the same or another police service for investigation. Mr. Douris says that the Complaints Director’s decision to screen the complaint out in these circumstances shows a reasonable apprehension of bias. Mr. Douris submits if the complaint analysis form for the March 15, 2024 complaint also recommended screening the complaint in, the Complaints Director’s decision to screen the complaint out would be further evidence of bias against him.
[13] I am not persuaded by this argument. First, it is speculative because Mr. Douris has not provided any information that specifically leads him to believe the case analysis form recommended screening the March 15, 2024 complaint in. However, if I accept this is likely because it would be consistent with the case analysis of the current complaint, it would only be a repetition of the same points and would add little to a review of the Complaints Director’s current decision. What is directly relevant is what happened in the current decision. Mr. Douris has the case analysis form for the current complaint, and his bias argument remains available to him.
[14] Finally, Mr. Douris raised an argument in response to LECA’s submission that the appropriate process to obtain the documents he seeks is through a request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 (FIPPA). Mr. Douris says that he has made such a request and that, once the documents are received, he can add them to his own application record. He submits it therefore would make sense to avoid that process and order LECA to produce them now.
[15] There are at least two problems with this argument. First, it is unknown whether the records will be produced to Mr. Douris in the FIPPA process. Second, if they are produced, Mr. Douris would need to persuade the court they should be added to the record under the limited circumstances provided by the test in Keeprite Workers’ Independent Union et al. and Keepright Products Ltd., 1980 CanLII 1877 (Ont. C.A.). In short, it is not automatic that the documents would be available and added to the record. This is not a basis to circumvent the limits on compelling the production of documents from LECA. . Jubenville v. Municipality of Chatham-Kent et al., 2024 ONSC 4839 (CanLII)
In Jubenville v. Municipality of Chatham-Kent et al., 2024 ONSC 4839 (CanLII) (Div Court, 2024) the Divisional Court considers an interlocutory JR record-limiting motion, here in the context of an Integrity Commissioner administrative proceeding.
Here the court considers the limits of an appropriate JR 'record':[6] In my view, the applicant’s motion to exclude the material specified in her notice of motion from the record filed by the respondents should be dismissed, for reasons that include the following:a. Clearly, defining the appropriate record for consideration by the Divisional Court, on a judicial review application, is a matter of great importance. As emphasized by this court in Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086 (Div.Ct.), at paragraphs 7-8, failure to define that appropriate record may encourage a “proliferation of collateral issues”, and result in a judicial review proceeding that is “complicated, expensive and lengthy”, wherein the “ground is continually shifting, and the core issues may be eclipsed by the procedural issues”.[4] .... . Humberplex Developments v Attorney General for Ontario
In Humberplex Developments v Attorney General for Ontario (Div Court, 2023) the Divisional Court considered, when addressing a motion to add material to a JR record, whether to address it now or to defer it to the full JR hearing:Timing of Motion
[10] Courts are generally reluctant to deal with issues of admissibility and relevance of evidence in advance of the hearing on the merits: Hanna v. Attorney General for Ontario, 2010 ONSC 4058, at para. 7. For this reason, I, as the case management judge asked to schedule this motion, expressly left it open that the motion judge could adjourn the motion to the panel hearing the application.
[11] There are exceptions to the above general rule. In Sierra Club Canada v. Ontario (Ministry of Natural Resources and Ministry of Transportation), 2011 ONSC 4086 (Div. Ct.), the motion to strike out certain affidavits was left to be determined by the panel at the merits hearing. At that stage the court found, at para.7, that the motion “should have been brought prior to the hearing by the panel, in order to clarify the contents of the record” and to “define the issues for the hearing based upon properly admissible evidence.”
[12] Permitting “inadmissible argument, opinions or comments to remain in the affidavit until the application is heard presents the opposing party with the dilemma of having to choose between ignoring, responding to and/or cross-examining on the inadmissible paragraphs. None of these options is ideal. A pre-emptive motion to strike the offending paragraphs may be the more appropriate route because it permits the parties to limit their response or cross-examination to those parts of the affidavits that contain admissible evidence.”: Hunt v. Stassen, 2019 ONSC 4466, at para. 11.
[13] However, the Court in Sierra Club cautioned, at para. 7, that if “the motion judge is unsure about the relevance of certain material, those issues may be left to be determined by the panel hearing the judicial review.”
[14] In Hanna, Swinton J. struck out some expert evidence on the motion and left some issues about the remaining evidence to be determined by the panel at the hearing of the application. This has since been described as a hybrid approach: Hunt, at para. 9; Holder v. Wray, 2018 ONSC 6133. I conclude below that this motion calls for a hybrid approach.
|
