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Police - Police Services Act (PSA) - General. Rivard v. Ontario [police board]
In Rivard v. Ontario (Ont CA, 2025) the Ontario Court of Appeal considered a police/police board appeal, this from a Divisional Court interlocutory appeal regarding R21 and R25.11 pleadings motions, this in a negligence lawsuit alleging serious assault during an arrest.
Here the court considers direct and vicarious liability against a police board:The allegations of fact pled do not support a direct claim in negligence against the Board
[55] Under s. 31(1) of the Police Services Act, a police services board is broadly responsible “for the provision of adequate and effective police services in the municipality”. In particular, a board is responsible for determining the objectives and priorities with respect to police services in the municipality, in consultation with the chief of police; establishing policies for the effective management of the police force; recruiting, appointing and directing the chief of police, and monitoring his or her performance; and establishing guidelines for dealing with complaints, and monitoring the chief of police’s administration of the complaints system. The board’s ability to oversee and direct specific police operations is explicitly limited, however. Under s. 31(3), a board “may give orders and directions to the chief of police, but not to other members of the police force”.
[56] Notwithstanding this limitation, in addition to any direct liability that a board may incur for its own negligence, a board is “liable in respect of torts committed by members of the police force in the course of their employment” by virtue of s. 50(1) of the Police Services Act.
[57] Although the Board concedes that it could be vicariously liable for torts committed by individual officers, it contends that Mr. Rivard’s allegation that it failed to discharge its statutory obligations to him is bald and conclusory, and that there are no material facts alleged that could give rise to a finding that it was directly negligent to him. I agree.
[58] At para. 64 of Odhavji, Justice Iacobucci noted that a police service board’s lack of a direct supervisory relationship with members of the force makes it more difficult to establish a close causal connection between alleged misconduct by officers and the board’s actions and omissions:The Board ... is much further in the background than the Chief. Unlike the Chief, the Board does not directly involve itself in the day‑to‑day conduct of police officers, but, rather, implements general policy and monitors the performance of the various chiefs of police. The Board does not supervise members of the force, but, rather, supervises the Chief (who, in turn, supervises members of the force). This lack of involvement in the day‑to‑day conduct of the police force weakens substantially the nexus between the Board and members of the public injured as a consequence of police misconduct. [59] The mandate of a police services board limits the circumstances in which it could be liable for officer misconduct. A plaintiff would have to allege (and prove) that there was a particular problem, for example an endemic excessive use of force against visible minorities, which it was required to address to discharge its statutory obligation to provide adequate and effective police services. As a general matter, however, “courts should be loath to interfere with the Board’s broad discretion to determine what objectives and priorities to pursue, or what policies to enact in pursuit of those objectives”: Odhavji, at para. 66.
[64] There are accordingly no material allegations of fact against the Board that could ground a claim that it might be directly, as opposed to vicariously, liable to Mr. Rivard for his damages. As a result, I am of the view that the Divisional Court erred in law in failing to strike subparas. 19(viii) and (xi). Assuming they are struck, there is no basis for Mr. Rivard’s negligence claim against the Board. The only valid claim against the Board is based on its vicarious liability for the torts allegedly committed by the individual police officers. . Connor Engels v. Office of the Independent Police Review Director
In Connor Engels v. Office of the Independent Police Review Director (Div Court, 2024) the Divisional Court granted a motion to quash a JR, here of a decision of the Law Enforcement Complaints Agency (LECA) (formerly the OIPRD) that upheld a Toronto police chief decision regarding their complaint:[6] This is a motion to quash the Application for Judicial Review against the Toronto Police Service. The OIPRD took no position on the motion and the outcome on this motion will not impact Mr. Engels’ application for judicial review of the OIPRD’s decision denying his request for a review. The only issue on this motion is whether the application against the Toronto Police Service should be quashed.
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b. Structure of the complaint process in the Police Services Act
[19] The Toronto Police Service argues Mr. Engels is not entitled to judicial review of the adequacy of its investigation to the Divisional Court. The Toronto Police Service argues the only route available for Mr. Engels to review the adequacy of its investigation is under s. 71 of the Police Services Act (i.e. a successful judicial review of the OIPRD’s decision not to conduct a review). The Toronto Police Service argues that Mr. Engels’ application for judicial review against the Toronto Police Service is premature because if he wins the judicial review application of the Director’s decision denying his review, the OIPRD will review the adequacy and outcome of the Toronto Police Service investigation. And if Mr. Engels is unhappy with the outcome of that review, he could seek a further judicial review to this court, which would focus on the adequacy of the Toronto Police Service investigation.
[20] Mr. Engels argues s. 71(1) of the Police Services Act does not apply and he, therefore, has a right to judicially review the adequacy of the Toronto Police Service investigation directly to this court now. To understand this argument, I must summarize the provisions of the Police Services Act dealing with complaints by members of the public against police officers.
[21] Any member of the public can make a complaint about the conduct of a police officer to the Director of the OIPRD under s. 58(1) of the Police Services Act. The Director of the OIPRD has the power not to deal with a complaint if, for example, the Director feels it is not in the public interest to do so or if the complainant was not directly affected by the conduct complained of: Police Services Act, s. 60. If, however, the Director decides to deal with a complaint about the conduct of an officer, the Director has three options: (1) refer the matter to the police force in question for an investigation, (2) refer the matter to another police force for an investigation; or (3) cause the OIPRD to conduct an investigation: Police Services Act, s. 61(5).
[22] Following Mr. Engels’ first judicial review application, his complaint was referred to the Toronto Police Service under s. 61(5) of the Police Services Act.
[23] Once the complaint was referred to the Toronto Police Service, the Toronto Chief of Police was required to cause the complaint to be investigated. A written report must be issued following the investigation.
[24] Section 66 of the Police Services Act sets out what is to happen once the investigative report is prepared. If the Chief of Police is of the opinion, based on a review the report, that the complaint against an officer is unsubstantiated, the Chief shall take no further action and shall notify the complainant and the OIPRD. If the Chief believes the officer’s conduct constitutes misconduct or unsatisfactory work performance, he shall hold a hearing into the complaint. If, however, the Chief believes the misconduct or performance issues is “not of a serious nature”, the Chief may resolve the issue informally without holding a hearing.
[25] In this case, the Toronto Chief of Police concluded that Officer Kiproff’s engaged in misconduct on July 20, 2021 but the misconduct was not of a serious nature so the matter was resolved informally at the Unit level.
[26] Section 71(1) of the Police Services Act states as follows:If a complainant has been notified … that his or her complaint is unsubstantiated or … that the conduct he or she complained of has been determined to be not of a serious nature, the complainant may, within 30 days of such notification, ask the Independent Police Review Director to review the decision. [27] On a review under s. 71(1) of the Police Services Act, the Director must consider whether the investigation adequately addressed the issues raised in the complaint and whether the Chief’s decision was supported by the evidence: AZ v. Office of the Independent Police Review Director, 2003 ONSC 6365 at para. 27.
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c. Analysis
[28] Mr. Engels argues that s. 71(1) does not apply because the Toronto Police Service has not found that his complaints relating to the conduct of police at Lamport Stadium and at 14 Division on July 21, 2021 are unsubstantiated. He argues the December 12, 2022 report is silent on those parts of his complaint. He argues the Toronto Police Service has not investigated those parts of his complaint. Mr. Engels also argues the Toronto Police Service breached Justice Corbett’s order and the rules of natural justice by failing to investigate all his complaints. Finally, Mr. Engels argues that because s. 71(1) does not apply, he is entitled to seek judicial review of their failure to act to this Court directly without seeking a review by the Director of the OIPRD.
[29] I disagree. The review process in s. 71 of the Act does apply.
[30] The Police Services Act provides for only three possible outcomes of an investigation: (i) the complaint is substantiated and it is referred to a hearing, (ii) the complaint is substantiated but the conduct is not serious and it is resolved informally without a hearing, or (iii) the complaint is not substantiated. In the December 12, 2022 report, the investigator described all of Mr. Engels’ complaints. The report details the investigator’s interview with Mr. Engels in which all aspects of his complaints were discussed. Mr. Engels told the investigating officer he did not have any direct contact with any Toronto police officer at Lamport Stadium or at 14 Division. Mr. Engels said he did not take any of the pictures or videos of the events at Lamport Stadium or at 14 Division. He also said he does not know any of the people in the photos that he says depict the police using excessive force. The investigating officer did not make any positive findings of discreditable misconduct in relation to the events at Lamport Stadium. However, in the analysis section of the report, the investigating officer wrote, “The one issue that needs to be addressed is whether [PC Kiproff] acted in a discreditable manner towards the Complainant on July 20, 2021.” The investigator found that Mr. Engels’ complaint about his interactions with PC Kiproff was substantiated. It follows that the other complaints were not substantiated, thereby triggering the review process in s. 71 of the Police Service Act.
[31] The only remedy available to a complainant who disagrees with the outcome of an investigation is to seek a review of the Chief’s decision under s. 71 of the Act: AZ v. Office of the Independent Police Review Director, 2003 ONSC 6365 at para. 82. In other words, the only route for Mr. Engels to review the adequacy or outcome of the investigation done by the Toronto Police Service is to seek a review by the Director of the OIPRD. Mr. Engels has done that and is unhappy with the outcome of that request. He has sought judicial review of that application. If his judicial review application is successful, the OIPRD will review the adequacy of the Toronto Police Service investigation.
[32] It would be an absurd result if Mr. Engels could judicially review the substance of the Toronto Police Service investigation directly to the Divisional Court without pursuing the review provided for in the Act. The Legislature is entitled to create a process for parties to review an administrative decision. The Legislature has created such a process in s. 71 of the Police Services Act and has established a 30-day period within which a request for review must be made. This court has repeatedly held that parties are required to exhaust any available administrative review before seeking judicial review. Permitting Mr. Engels to seek judicial review of the adequacy of the Toronto Police investigation now would render the statutory review process and the 30-day review period meaningless. . 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) lists some Police Services Act (PSA) provisions regarding police disciplinary hearings:[3] Constable Grus is charged with one count of discreditable conduct under the PSA.
[4] Section 94 of the PSA allows the Chief of Police to designate a hearing officer. In this case, the OPS Chief of Police designated retired superintendent Christopher Renwick as the hearing officer.
[5] Section 83 of the PSA sets out the rules for hearings under Part V of the legislation. Where the statute is silent, s. 83(1) of the PSA states that disciplinary proceedings for police officers are to be conducted in accordance with the Statutory Powers Procedure Act [2] (“SPPA”).
[6] Section 87 of the PSA provides an automatic right of appeal to the Ontario Civilian Police Commission (“Commission”) from the decision of the hearing officer.
[7] Section 88 of the PSA provides a limited right of appeal to the Divisional Court within 30 days of receiving notice of the Commission’s decision.
[8] Neither the PSA nor the SPPA provides a mechanism to challenge interlocutory decisions of a hearing officer. An appeal to the Commission is only from a final decision of the hearing officer.
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