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ADMINISTRATIVE LAW | SPPA / Fairness (Administrative)

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Administrative - Record (2)

. Grus v. Renwick and Chief of Police, Ottawa Police Service

In Grus v. Renwick and Chief of Police, Ottawa Police Service (Div Court, 2023) the Divisional Court (single judge) made observations on the contents of a JR record, here where a police discipline hearings officer requested and was supplied with the original, unredacted 'duty book' (which contains police officer's notes) for review:
[20] The essence of this Judicial Review Application turns on an interlocutory ruling in respect of disclosure. At its highest, the Applicant frames it as a breach of natural justice because she was not allowed to inspect her original duty book containing the notes of January 30, 2022. No authority was presented to suggest that such a right exists or that it forms part of natural justice.

[21] Disclosure of photocopies of police officer duty book notes forms part of virtually all criminal proceedings. It forms part of first-party disclosure. There has been no suggestion that this form of disclosure is accompanied by a right to inspect the physical duty book from where the photocopied notes originate. There are obvious public policy reasons which support that photocopies of a duty book are sufficient. A right to inspect the physical duty books from where notes originate to all persons entitled to disclosure would obviously add unreasonable time and expense to the disclosure process. It would also increase the risk that information pertaining to unrelated proceedings could be disclosed to third parties. I acknowledge that this leaves a possibility for clerical errors, misinterpretation of the relevance of some notes or even malfeasance.

[22] In the present case, the distinction is made to a police officer’s own duty book. I see very little distinction. The other matters referenced in the duty book are no longer part of that officer’s functions. Furthermore, there is no evidentiary basis laid by the Applicant whereby she was absolutely certain that she took notes and that they would be found in her duty book. To the contrary, the Applicant testified that she doubts that she took notes at certain times and that she thought that there could possibly be a phone number found for a call she made on January 30, 2022. However, there is little certainty attached to that possibility. Furthermore, her counsel advances the possibility that the duty book was “white copied” so as to hide the notes taken by the officer and disclose blank pages. Such a theory finds no foundation in the evidence.

[23] I am unable to find a basis in law and I was directed to no authority supporting the argument that this would warrant that an officer be entitled to a physical inspection of her duty book. However, I am not the decision maker in the process, and it is not for me to substitute my view for that of the hearing officer. In the normal course, reliance is made on the disclosure process. However, in this case, the hearing officer went one step further and physically inspected the unredacted notes, a step in my view that may not have been necessary based on the evidence before him. He confirmed that the January 30, 2022 notes had no reference to any matters before the hearing officer. There was no evidentiary basis for the possibility that the hearing officer may not understand the notes or that abbreviations may be used that would be unknown to the hearing officer. To the contrary, nothing is suggested other than the possibility of malfeasance without an evidentiary foundation.

[24] It should be noted that the unredacted version of the duty book notes was considered by the hearing officer and it does not seem that it was retained as part of the record. It should have been, and it should likely be included as a sealed lettered exhibit which is not part of the evidence but at least part of the proceeding and available to a reviewing body.

[25] Ultimately, the Applicant may be correct that the law should allow her to inspect her own duty book. However, such a finding must follow the proper process for the review of administrative tribunal decisions. Under the PSA, there is an established path to appeal the decision of a hearing officer to the Commission. There is then a limited right of appeal to the Divisional Court. The Applicant will have the opportunity to advance her grounds of appeal and challenge all of the interlocutory decisions made by the hearing officer as part of the statutory right of appeal.

[26] My view of the right of the Applicant to inspect her own duty book is not determinative of the issue. It is solely relevant to the issue before me and that is if the context gives rise to exceptional circumstances to warrant judicial review of an interlocutory decision.
. Stenka v. Garten

In Stenka v. Garten (Div Court, 2023) the Divisional Court addressed the record (here, a transcript) required to consider an RTA reconsideration:
[30] I pause to note that on review, the Member was faced with an especially difficult task because there was no transcript of the first hearing. It would have been challenging, if not impossible, to determine what evidence was before the first Member. However, this makes it more difficult to understand on what basis the Member found a serious error in the Initial Decision. The Member found that the Initial Decision “does not address the circumstances behind the Tenant’s act of vacating the rental unit, or of the Landlords’ contract to renovate the rental unit” without making any reference to the evidence that was before the first Member.
. Patel v. The Law Society of Ontario

In Patel v. The Law Society of Ontario (Div Court, 2022) the Divisional Court considered whether decisions of the Intake and Resolution Counsel (I&R Counsel) of the Law Society constituted 'statutory powers of decision', this in order to determine whether JRPA s.10 ['Record to be filed in court'] thus applied to require the LSO to file their decision-making record in a JR application. The court held that the I&R Counsel's involvement was investigative (as per LSA 49.3 "Investigations - Conduct"), and the dismissal of an investigate proceeding did not constitute the "exercise of a statutory power of decision" as it effected no rights [JRPA 1]:
[5] Section 10 of the JRPA requires that a record of proceedings be filed with the court “when notice of application for judicial review of a decision made in the exercise of a statutory power of decision is served on the person making the decision.” A statutory power of decision is defined as a power or right conferred by or under a statute to make a decision deciding or prescribing:
1. The legal rights powers, privileges, immunities, duties or liabilities of any person or party, or

2. The eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not.
[6] Under the Law Society Act, the LSO has the discretion to decide whether to investigate a complaint. Subsection 49.3(1) of the Act provides that the LSO “may” investigate when it receives information suggesting that licensee may have engaged in professional misconduct or conduct unbecoming.

[7] Where there is a discretion to investigate, courts have held that the decision to dismiss a complaint is not the exercise of a statutory power of decision: Batacharya v. College of Midwives of Ontario, 2012, ONSC 1072 (Div. Ct.); Harrison v. Association of Professional Engineers of Ontario, 2014 ONSC 6549 (Sup. Ct.), at paras. 17-18. The language of the Law Society Act is similar to the language in the provisions at issue in those cases under the Health Professions Procedural Code and the Professional Engineers Act respectively. This differs from the circumstances in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, where the complainant had a right under the Police Services Act to have her complaint proceed. In that case, the decision to screen out the complaint was found to be an exercise of a statutory power of decision and a record of proceedings was required. Unlike the Police Services Act, the Law Society Act does not require that every complaint be pursued, rather, it gives the LSO discretion to determine whether to investigate a complaint.

[8] In the absence of the exercise of a statutory power of decision, the court does not have inherent jurisdiction to order production of a record of proceedings: Harrison, at paras. 27-37.

[9] In my view, for the purposes of the motion, the decision of I&R Counsel did not affect the Applicant’s legal right. Therefore, the decision of I&R Counsel to close his complaints was not the exercise of a statutory power of decision. As a result, s. 10 of the JRPA does not apply, and the LSO does not have a duty to file a record of proceedings.


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Last modified: 05-01-24
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