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Complaints
MORE CASES
Part 2
. A. Z. v. Office of the Independent Police Review Director
In A. Z. v. Office of the Independent Police Review Director (Div Court, 2023) the Divisional Court considered a JR of the dismissal of OIPRD screening, investigation and examination of a complaint of local police misconduct, here regarding their handling of sexual assault allegations. Paras 1-35 are illustrative of police and OIPRD procedures in such matters.
In these quotes the court considers procedural fairness in the OIPRD complaint screening process, here regarding 'reasons for decision' and Baker 'legitimate expectations':Was There a Breach of Procedural Fairness?
[44] The applicant argues that she was denied procedural fairness because she was not provided with reasons for her complaint being sent to the NRPS for investigation, nor was she given the opportunity to make submissions on that issue, despite her legitimate and reasonable expectations that her complaint would be investigated either by the OIPRD or by a different police service.
[45] At the screening stage of the process, the OIPRD is given a broad discretion. In Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, 373 D.L.R. (4th) 149, at para. 28, the Court of Appeal stated:It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage. [46] As Endicott makes clear, the threshold for procedural fairness at the screening phase is low. The OIRPD was under no obligation to provide a reasoned decision. Nevertheless, it is clear that the process did engage consideration of whether or not the NRPS should be responsible for investigating the applicant’s complaints. Indeed, the OIPRD’s own investigator, Robert Zufelt, expressed the view that investigation of the complaint should be retained by the OIPRD or referred to another police service. Ultimately, however, the senior manager concluded that the complaint did not necessitate the OIRPD either retaining it or referring it to another service. His view was that despite the deficiencies in the investigation, the professional standards unit of the NRPS should be able to conduct a thorough review of the matter, taking into account their own sex assault investigation policies.
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[50] Similarly, we disagree with the applicant’s submission that she ought to have been given an opportunity to make submissions on the issue of whether the misconduct was “serious” or “less serious.” As further detailed in these reasons, the characterization of the seriousness of the misconduct is for a limited disciplinary purpose: Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.). Under the PSA, the chief of police determines whether the misconduct is serious or not and is not required to consider submissions or provide reasons. Pursuant to s. 71(1) of the PSA, the opportunity for a complainant to make submissions is at the review stage, which the applicant did in this case.
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Was the Determination that the Misconduct Was Not of a Serious Nature Unreasonable?
[80] The scheme of the PSA is that if, following an investigation, a police chief believes on reasonable grounds that an officer’s conduct constitutes misconduct, the matter will proceed to a disciplinary hearing unless the misconduct is deemed “not to be of a serious nature”.
[81] As the Divisional Court explained in Green v. Toronto Police Service, 2016 ONSC 6433 (Div. Ct.), s. 80(1) of the PSA, which provides that a police officer is guilty of misconduct if they engage in any of eleven categories of proscribed activity, does not characterise any of these categories as “serious” or “not serious”. However, s. 66(4) of the PSA provides that if the chief of police is of the opinion that the misconduct was “not of a serious nature”, the chief of police may resolve the matter informally without holding a hearing if the police officer and the complainant consent to the proposed resolution. Even if the complainant does not consent, the chief may still resolve the matter without a hearing, but subject to certain limitations imposed by s. 66(10) of the Act. The penalties available in that circumstance are set out in s. 85(1)(d),(e), and (f). As Dambrot J. explained in Green, at para. 23:In short, if a chief of police is of the opinion that misconduct is not of a serious nature, at the most the decision takes dismissal and demotion off the table as potential punishment. The limited significance of the characterization of misconduct as not serious informs the interpretation of the term. . Ghafari v. Canada (Attorney General)
In Ghafari v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered a JR against a decision of the Federal Public Service Labour Relations and Employment Board (FPSLREB) that dismissed a "complaint alleging abuse of authority in an internal appointment process". These quotes address some of these statute-specific complaint procedures:[7] The Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 (Act) requires appointments to be made based on merit and subsection 30(2) describes the circumstances in which an appointment is made on the basis of merit. An unsuccessful candidate for an internal appointment may make a complaint to the Board that they were not appointed or proposed for appointment by reason of an abuse of authority in the exercise of authority under subsection 30(2): ss. 77(1)-(2). The burden of establishing abuse of authority rests with the complainant: Gulia v. Canada (Attorney General), 2021 FCA 106 at para. 7 (Gulia).
[8] Mr. Ghafari made a complaint to the Board under section 77 of the Act, alleging an abuse of authority resulting in an incorrect assessment of his competencies for the senior methodologist position. ....
[9] ... While acknowledging Mr. Ghafari’s belief that he was not fairly assessed in the appointment process, the Board explained that its role was not to reassess him. Rather, the question before the Board was whether an abuse of authority had occurred. The Board observed that Mr. Ghafari had the burden of establishing bias or other abuse of authority and concluded he had not demonstrated either.
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[28] The focus of a complaint under section 77 of the Act is abuse of authority in the exercise of authority under subsection 30(2) of the Act—that is, the authority to make an appointment on the basis of merit. An appointment is based on merit where the person meets the essential qualifications for the work performed: Act, s. 30(2)(a). But those qualifications may be established by the employer and, to determine whether a person meets the qualifications for the position, any assessment method considered appropriate may be used: Act, ss. 31, 36. The Board explained that it could not examine the choice of assessment method or the qualifications for the position: reasons at paras. 101, 110. . Hokhold v. Canada (Attorney General)
In Hokhold v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal briefly considered the CJC's jurisdiction over complaints:[1] Dr. Hokhold appeals from a judgment of the Federal Court (2021 FC 558, Barnes J.). In its judgment, the Federal Court dismissed an application by Dr. Hokhold for judicial review of a screening decision of the Canadian Judicial Council, made by its executive director. In that decision, the CJC found Dr. Hokhold’s complaint of judicial misconduct against Justice Patrice Abrioux, then of the Supreme Court of British Columbia, to be an abuse of process, and dismissed the complaint.
[2] The complaint is one of a series of complaints brought by Dr. Hokhold to the CJC against judges who have ruled against him. These complaints have all been dismissed. They have all been found to involve judicial decision-making rather than judicial conduct and, therefore, to be outside the mandate of the CJC. . Endicott v Independent Police Review Director
In Endicott v Independent Police Review Director (Ont CA, 2014) the Court of Appeal considers whether a decision of the Independent Police Review Director (OIPRD) to not pursue a complaint about police behaviour [under PSA s.60] constituted a 'statutory power of decision', here to determine whether the OIPRD had a duty to file their record under JRPA s.10 in a judicial review:Was the Director’s decision the exercise of a statutory power of decision?
[19] The respondent maintains that the Director’s decision was a “decision deciding or prescribing” her “legal rights”. This would bring the Director’s decision squarely within subparagraph (a) of the definition of “statutory power of decision” in the JRPA. (The respondent has not advanced any argument under subparagraph (b).) Both the motion judge and full panel of the Divisional Court agreed. Because the Director’s decision was one that affected the respondent’s rights, when the Director was served with a judicial review application, he was, in the respondent’s submission, required to “file in the court for use on the application the record of the proceedings in which the decision was made.”
[20] The Director, however, argues that the Divisional Court erred in its understanding of the way in which the complaint process operates pursuant to the PSA. Central to the Director’s argument is his position that the complainant does not have a “right” to have a complaint dealt with in any particular way. In the Director’s submission, the PSA gives him broad statutory discretion to “screen out” complaints. This discretion to screen out complaints, when exercised, does not meet the definition of a statutory power of decision. The party making the complaint has no “legal right” that is engaged when the screening process is used by the Director. In the Director’s submission, the decision under appeal runs counter to the established jurisprudence recognizing that discretionary decisions by a tribunal as to whether or not a matter should be investigated are found not to be the exercise of statutory powers of decision.
[21] The Director further submits that because a record of proceedings is not defined in the JRPA, but is defined in s. 20 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), a record of proceedings should only be required where the SPPA applies to a decision. For the SPPA to apply to a decision there must have been a “proceeding” as provided in s. 3 of the SPPA, namely a proceeding “where the tribunal is required … to afford to the parties to the proceeding an opportunity for a hearing before making a decision.” Clearly, the Director’s decision to screen out the respondent’s complaints was not a proceeding as contemplated by the SPPA because no hearing was held, nor has it been argued that the Director was under any obligation to afford to the respondent or to any other “party” the opportunity for one. This, in the Director’s submission, lends further support to his position.
[22] The Director maintains that the Divisional Court’s decision would seriously impair his ability to screen out complaints as intended by the PSA. If decisions to screen out complaints are held to be the exercise of a statutory power of decision affecting a complainant’s rights, then, the Director argues, such decisions will be impressed with additional fairness requirements including the requirement to give notice to the complainant and to give the complainant the opportunity to make submissions. This would result in the process being bogged down in unnecessary process and procedure, thereby defeating the intention of the legislature that the complaint process set up under the PSA strike an appropriate balance between the right of a complainant to fairly bring forward a complaint and have it investigated and dealt with properly, while at the same time allowing the Director broad discretion to screen out complaints that are without foundation or that, for other reasons outlined in s. 60, ought not to be pursued.
[23] I would not give effect to the Director’s submissions. In my view, the Divisional Court correctly interpreted the statutory complaint scheme created by the PSA. As I will explain, a proper reading of the relevant statutory provisions makes it clear that a person who lodges a complaint has the right to have that complaint pursued unless a decision is taken by the Director pursuant to the PSA that the complaint should be screened out. The complainant’s right to have the complaint pursued is thereby ended; in other words, the complainant’s legal right is thereby “decided”.
[24] I turn now to the statutory provisions of the PSA. As repeatedly affirmed by the Supreme Court of Canada, the “modern principle” of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Re Rizzo and Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21 (quoting Elmer Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)).
[25] It is immediately apparent that the statutory provisions of the PSA establishing the complaints procedure and assigning to the Director his role are quite different from the complaint procedures set out in other statutes cited by the Director as being comparable. The Director has, for example, referred the court to s. 75(1) of the Health Professions Procedural Code (“HPPC”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The complaint procedure established by s. 75(1) was interpreted in Batacharya v. The College of Midwives of Ontario, 2012 ONSC 1072, and the court determined in that case that a decision by the college’s registrar not to pursue a complaint did not constitute the exercise of a statutory power of decision. The statutory provision in the HPPC, however, does not require the registrar to proceed with a complaint. To the contrary, a decision has to be made for the complaint to be pursued. The wording of s. 75(1) is that “[t]he Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct …” (emphasis added). The discretion is exercised to allow a complaint to be pursued.
[26] By contrast, s. 59(1) of the PSA provides that the Director “shall review every complaint … and shall determine whether the complaint is about the policies of or services provided by a police force or about the conduct of a police officer” (emphasis added). The complainant is therefore assured by statute, that unless the director decides otherwise, the complaint will be pursued. A determination will first be made as to whether the complaint is about a policy or service of the police force or about the conduct of a police officer. Section 59(2) then provides that “[s]ubject to section 60, the Independent Police Review Director shall ensure that every complaint reviewed under subsection (1) is referred or retained and dealt with in accordance with section 61” (emphasis added). Section 61 of the PSA directs how various complaints are to be dealt with on the merits.
[27] The use of “shall” in these provisions, as a matter of both grammatical and ordinary sense and of established legislative usage, imposes statutory obligations on the Director, upon receipt of a complaint from a member of the public, to pursue the complaint. The Director must deal with the complaint in accordance with the provisions of the PSA. His discretion to “screen out” certain complaints is circumscribed and requires a decision. Section 60 provides that the director “may … decide not to deal with a complaint”. Absent a decision by the Director, the complaint must be dealt with in accordance with the terms of the PSA. The statute gives the complainant that right. Unlike other statutes such as the HPPC, the Director’s discretion is not in deciding whether he will deal with a complaint. Rather, his discretion is deciding whether to stop a complaint from proceeding in accordance with the process established by the PSA. In fact, all complaints, even those that are susceptible to being screened out pursuant to s. 60 are, absent a decision by the Director to screen them out, dealt with and investigated. The PSA states only that he “may” decide not to deal with a complaint that falls within one of the categories listed in s. 60. Therefore, absent intervention, s. 59 ensures that the complaint will be pursued and investigated in accordance with the process set out in s. 61.
[28] My conclusion that the Director’s decision to screen out the respondent’s complaints is the exercise of a statutory power of decision does not, as the Director suggests, mean that the SPPA applies to that decision or that additional fairness requirements are imposed on the Director in carrying out his screening out function. The respondent’s right to have the complaint dealt with in accordance with the PSA comes with the limits to that right imposed by the PSA. It is beyond the scope of this appeal to define what limits or procedural requirements may be imposed by the PSA on a director’s discretion to screen out a complaint. Suffice it to say that the PSA does not contemplate the need for a hearing or notice, nor does it impose any specific procedural requirement. The PSA gives the Director broad discretion to screen out complaints and to do so before any investigation as provided in s. 61 is undertaken. No hearing or proceeding is contemplated at the weeding out stage. The SPPA, therefore, has no application and the concerns raised by the Director that the complaints process will be bogged down with procedural requirements is without foundation.
[29] My conclusion that the complainant has a right to have the complaint proceed in accordance with the PSA does not mean that the complainant has an unqualified right to have the complaint proceed to the investigation stage. It is presumed that the complaint will proceed to investigation but that presumption is qualified. The legislature has given the Director broad discretion in s. 60 to screen out complaints without an investigation being undertaken.
[30] The Director’s broad power to screen out complaints provides the balance in the complaint procedure that former Chief Justice of the Superior Court of Justice, the Honourable Patrick LeSage, considered necessary. The changes to the police complaints system that are now the subject of this appeal had their genesis in the report authored by Mr. LeSage: Report on the Police Complaints System in Ontario by Patrick J. LeSage (Toronto: Ministry of the Attorney General of Ontario, 2005). Therein, he expressed the view that access to the complaint process should be made easier for those with legitimate complaints about the police but also recognized that increasing access to the complaints system could tax the system’s resources. As he explained, at p. 64:Removing the current systemic barriers to the reception of complaints needs to be balanced by conferring greater discretion on the recipient of complaints to determine whether a complaint should be pursued. There will be cases where the evidence to support a complaint is so tenuous that resources should not be expended to pursue them. Also, there will be cases where the “complaint” is really not one that is suitable for the complaints system to resolve. For example, a dispute as to whether a traffic ticket has been wrongly issued is a matter for the courts. While the current system allows a chief of police’s decisions to not pursue a complaint to be reviewable by OCCOPS, such a review is time intensive and inimical to the efficient resolution of complaints.
Facilitating access should mean the reception of all complaints, but it also requires that judicious screening of complaints be made as early as possible to protect the integrity of the system. [31] Before turning to the second issue, I will respond to the Director’s submission that the decision in Jacko v. Ontario (Chief Coroner) (2008), 2008 CanLII 69579 (ON SCDC), 306 D.L.R. (4th) 126 (Div. Ct.), lends strong support to his position that the exercise of his discretion to screen out a complaint is not the exercise of a statutory power of decision.
[32] In Jacko, the Jacko family asked the coroner to conduct an inquest into the death of their son. When the coroner declined to do so, the family applied for judicial review and sought to have the coroner produce a record of proceedings. Thus, the Divisional Court was faced with the question whether the coroner’s decision not to proceed with an inquest was the exercise of a statutory power of decision within the meaning of s. 10 of the JRPA. Although arising in the context of different legislation, namely, the Coroners Act, R.S.O. 1990, c. C.37, the question before the court in Jacko was the same question posed in the present case.
[33] Section 20 of the Coroners Act lists a number of considerations that the coroner is to take into account when making a determination whether an inquest is necessary or unnecessary. If the coroner decides that an inquest is unnecessary, certain relatives of the deceased are empowered by s. 26 of the Coroners Act to ask for a review of that decision. The section affords them the opportunity to state the reasons for their request either personally, by an agent or in writing. The coroner is then to advise the person in writing of his or her decision and, where the decision is not to hold an inquest, reasons for the decision are to be provided in writing. The relative is also provided with the right to request that the chief coroner review the coroner’s decision. The section further provides for a similar process allowing the relative to submit reasons for requesting the inquest to the chief coroner for purposes of the chief coroner’s review and states that the decision of the chief coroner is final.
[34] The Divisional Court in Jacko found that the coroner’s decision whether or not to hold an inquest was based purely on the public interest and not on any “rights” of the deceased’s family. The coroner’s decision, therefore, was not the exercise of a statutory power of decision.
[35] In my view, Jacko can be distinguished. The statutory scheme established by the Coroners Act is significantly different from the scheme set up under the PSA. Section 59 of the PSA imposes a statutory obligation on the Director to deal with a complaint as provided in s. 61 unless the Director determines that the complaint falls within the criteria set out in s. 60 and he decides not to deal with the complaint. A complainant under the PSA therefore has a right to have the complaint dealt with in accordance with s. 61 unless those two conditions are met.
[36] By contrast, there is no default requirement under the Coroners Act that, absent a screening out decision, a relative’s request under s. 26 is to result in an inquest or further investigation of the case. The relative’s request is to have the coroner reconsider a decision already made not to hold an inquest. That case does not, in my view, assist the Director. . Schuur v Sas
In Schuur v Sas (Div Court, 2023) the Divisional Court considered a judicial review of an HSARB disclosure order to only release a heavily redacted ICRC ['Inquiries, Complaints, and Reports Committee'] record of a complaint to the College of Psychologists.
In these quotes the court considered that the procedural fairness to be accorded a complainant is less that that to be accorded a professional, here a psychologist::iii. The Disclosure Order and Motion to Vary
[16] On 9 March 2020, the Applicant requested a review of the ICRC decision by the HPARB. In her request, the Applicant alleged deficiencies in the ICRC’s information gathering process and complained that she had never received a copy of Dr. Sas’s response to the complaint.
[17] On 24 February 2021, the HPARB made a disclosure order with respect to the ICRC’s Record of Investigation and any other documents the ICRC utilized in making its decision to the parties to the review. However, the HPARB ordered that pursuant to s. 32(3) of the Health Professions Procedural Code (being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), the Applicant was only entitled to a redacted version of the record containing approximately 92 unredacted pages of a total of 2,464 pages. The HPARB’s Disclosure Order noted that the redacted pages contained the personal health information of people not party of the complaint review process, and no consent was received to release the information. The relevant personal health information included that of the Applicant’s two children.
[18] Section 32(3)(c) of the Code provides:Exceptions
(3) The Board may refuse to disclose anything that may, in its opinion,
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(c) disclose financial or personal or other matters of such a nature that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that disclosure be made; [19] The HPARB found that the confidentiality interests of the persons affected by disclosing their personal health information outweighed the desirability of adhering to the principle that full disclosure be made.
[20] On 5 April 2021, the Applicant provided the HPARB with signed consents for the release of the personal health information of her minor children. The HPARB did not change its position.
[21] On 5 May 2021, the Applicant filed a motion to vary the Disclosure Order and asked that the Record of Investigation be reproduced to her without the redactions, including the three USB keys that had documents/media the ICRC used in its determinations. Dr. Sas opposed the motion. The HPARB declined to vary or set aside the Disclosure Order because of the privacy interests of the children, and because the Record of Investigation contains court materials. Mitrow J. had issued endorsements restricting the Applicant’s access to litigation materials, as well as limiting Dr. Sas’s involvement in the family law litigation. The HPARB found the motion to vary was an attempt to obtain the documents which were specifically restricted by the court. Dr. Sas will be called to testify in the Applicant and her ex-partner’s four-year family litigation, and the HPARB found the proper forum to contest the findings of Dr. Sas was in court.
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[23] The HPARB found that the investigation need not be exhaustive to be adequate. The Applicant argued that she should have been provided with Dr. Sas’s response and that she should have been able to respond to it. The HPARB rejected this and noted that the procedural fairness owed to a complainant is more limited than that owed to the regulated health professional under investigation. The ICRC is required to provide a certain minimum disclosure to a complainant. Beyond that, the ICRC has discretion in ordering disclosure as circumscribed by s. 32. The HPARB was not persuaded that the ICRC would have come to a different conclusion had it received the Applicant’s comments about Dr. Sas’s response. The HPARB determined the decision was reasonable as the ICRC considered the materials before it, applied its own knowledge relating to the standards of the profession and applied its own expertise to interpret the Record.
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[34] It is well recognized that under s. 32(3) of the Code, the HPARB has differing disclosure obligations as between complainants and members being investigated. The disclosure obligation to a complainant is lower than that to the member complained about. The complainant is not at risk of the loss of any profession or occupation, nor is his right to bring an action for malpractice affected in any way. Because the stakes for the complainant are very low, the disclosure duty to him or her is commensurately low, subject to the other factors in Baker (see Walker, at paras. 14-16; Silverthorne, at para. 13). . Chaubet v OIPRD
In Chaubet v OIPRD (Div Court, 2023) the Divisional Court states plainly the absence of any duty on the police to investigate complaints:[9] Counsel for the OIPRD submits that the application for judicial review should be dismissed as frivolous because it seeks an order in mandamus which would appear to require the OIPRD direct the TPS to investigate the information provided by Ms. Chaubet. As confirmed by a panel of the Divisional Court in Homes v. White [2013] O.J. 2886 (Div. Ct.), “there is no private or public law duty owing by the police to investigate a complaint.”
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