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. Potter v. Office of The Independent Police Review Director

In Potter v. Office of The Independent Police Review Director (Div Ct, 2021) the Divisional Court succinctly stated the essence of the OIPRD statutory complaint process:
The Legislative Context

[3] The role of the OIPRD is to receive and manage all public complaints about police misconduct in Ontario. Pursuant to s. 59 of the Police Services Act, R.S.O. 1990, c. P. 15 (the “PSA”), members of the public may make a complaint to the OIPRD about the policies or services provided by a police force or the conduct of a police officer. When a complaint is received, the staff review it to determine whether the complaint should be referred for investigation.

[4] There is a presumption that a complaint will be screened in unless it is screened out in accordance with the criteria found in s. 60 of the PSA. For example, a complaint may be screened out if it is brought more than six months after the facts on which it is based occurred (s. 60(2)). For purposes of the present application, s. 60(4) is important. It states:
The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
1. The complaint is frivolous or vexatious or made in bad faith.

2. The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.

3. Having regard to all the circumstances, dealing with the complaint is not in the public interest.
[5] Rule 6 of the OIPRD’s Rules of Practice also sets out criteria to be applied in the screening process. In accordance with Rule 6.1, the Director must first determine whether the complaint relates to the conduct of a police officer or to the services or policies of a police service. In accordance with Rule 6.2, the Director has the discretion to request further information:
6.2 When more information is required to screen the complaint or assign it for investigation, the OIPRD will request such other information as required from either the complainant or the police service. The police liaison officer may be required to supply the OIPRD with information to assist in screening or assigning the complaint for investigation.
[6] Rule 6.4 deals with the concept of the “public interest”, setting out factors that may be considered:
6.4 In determining whether or not to deal with a complaint, the Director will have regard to the public interest. Public interest will always involve a balancing of interests and a broad range of considerations. Some of the factors which the Director may consider will include:
(i) the effect of a decision to deal or not to deal with a complaint on public confidence in the accountability and integrity of the complaints system

(ii) the number of complainants involved

(iii) the seriousness of the complaint, including the seriousness of the harm alleged

(iv) whether the complaint relates to an incident or event that has already been the subject of an earlier complaint

(v) whether there are issues of systemic importance or broader public interest at stake

(vi) the likelihood of interfering with or compromising other proceedings

(vii) whether another venue, body or law can more appropriately address the substance of the complaint.
[7] Finally, Rule 6.5 states that “It is not in the public interest to screen in a complaint that does not, on its face, disclose a breach of the Act or the Code of Conduct.”
. Stanley v. Office of the Independent Police Review Director

In Stanley v. Office of the Independent Police Review Director (Ont CA, 2020) the Court of Appeal explains in part the role of the Office of the Independent Police Review Director (OIPRD):
[35] In order to explain my conclusions, it is necessary to outline the legislative framework within which the OIRPD operates. The procedure for addressing police complaints is complex. This summary, which is not comprehensive, highlights the difference between the powers of the OIPRD to refer cases to a chief of police for investigation and the power to refer a case for a hearing.

[36] The OIPRD is an arms-length agency of the Ministery of the Attorney General. It derives its authority from Parts II.1 and V of the PSA. As stated in its Annual Report (April 1, 2018 to March 31, 2019), at p. 7: “The OIPRD ensures that public complaints about police are effectively dealt with in a manner that is transparent and fair to both the public and the police. All decisions are independent of the government, the police and the public.”

[37] In general, any member of the public may make a complaint to the OIPRD under the PSA about the policies of, or the services provided by, a police force, or the conduct of one of its officers (ss. 58(1), (2)). The Director shall review every complaint it receives (s. 59). A complaint is presumptively “screened in” (meaning that it will be investigated), unless the Director exercises his legislative discretion to “screen out” the complaint (meaning that it will not be investigated) (s. 60). This may occur, for example, when the Director determines that the complaint is vexatious (s. 60(4)). Therefore, the presumption is that complaints are “screened in”.

[38] This initial screening power has been interpreted to be a statutory power of decision within the meaning of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1: see Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28.

[39] In Wall v. Office of the Independent Police Review Director, 2014 ONCA 884, 123 O.R. (3d) 574, at paras. 33-36, the Director decided not to consider a complaint that had been made six months after the alleged incident. He relied upon s. 60(2), which provides that the Director “may decide not to deal with a complaint by a member of the public if the complaint is made more than six months after the facts on which it is based.” The Divisional Court held that the Director erred in treating s. 60(2) as a limitation period, failing to apply the discoverability principle, and failing to give adequate reasons: Wall v. Independent Police Review Director, 2013 ONSC 3312, 362 D.L.R. (4th) 687 (Div. Ct.).

[40] In dismissing the Director’s appeal, this court described the Director’s discretion under s. 60 as a “screening” function: Wall (ONCA), at para. 62. Writing for the court in Wall (ONCA), Blair J.A. observed, at para. 45, that this function involves the exercise of “a discretion to be exercised within the confines of the factors set out in s. 60(3) and the bounds of procedural fairness”: see also paras. 28, 49, 60.

[41] If a complaint remains “screened in”, s. 59(2) requires the Director to ensure that every complaint reviewed under s. 59(1) is “referred or retained and dealt with in accordance with section 61”. Section 61 gives the Director three options:
(a) refer the complaint to be investigated by the chief of police of the officer’s force (s. 61(5)(a));

(b) refer the complaint to be investigated by the chief of police of another force (s. 61(5)(b)); or

(c) retain the complaint to be investigated by the OIPRD (s. 61(5)(c)).
Where the OIPRD retains the complaint for investigation and finds it to be substantiated, it must refer the matter under s. 68(3) to the chief of police for a hearing. That is what happened in this case – the Director originally found the Stanleys’ complaint to be substantiated and made a hearing referral.

[42] Thus, it can be seen that there are two types of referral: investigation referral under ss. 61(5)(a), (b), and hearing referral under s. 68(3).

[43] At the conclusion of an investigation, the decision-maker (be it the Director or a chief of police) must report on the investigation in writing and provide reasons explaining whether there are reasonable grounds to believe misconduct occurred (ss. 66(1)-(3) (chief of police); ss. 68(1)-(4) (OIPRD)).

[44] The decision-maker must then determine whether the misconduct is “serious”. Misconduct that is determined to be “not of a serious nature” may be dealt with by informal resolution, or discipline without a hearing, with the consent of the complainant and the officer (ss. 66(4)-(7) (chief of police); ss. 68(4)-(7) (OIPRD)). Importantly, with all “serious” misconduct findings, a hearing must be held to determine whether the officer committed the misconduct alleged.


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