Amormino v. Police Services Board et al., 2015 ONSC 7718

• Jurisdiction: Ontario
• Judge: Gordon, R.S.J., Molloy and Sanderson, JJ.
• Neutral Citation: 2015 ONSC 7718
• Citation: 2015 ONSC 7718,(2015), 342 O.A.C. 53 (DC),342 OAC 53,(2015), 342 OAC 53 (DC),342 O.A.C. 53
• Date: 07 December 2015
• Court: Superior Court of Justice of Ontario (Canada)

Amormino v. Police Services Bd. (2015), 342 O.A.C. 53 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. DE.018

Detective Constable Salvatore Amormino (OPP) (applicant) v. Police Services Board (OPP), Superintendent Robin D. McElary-Downer (Force Adjudicator - OPP), Commissioner of Provincial Police (OPP), J.V.N. (Vince) Hawkes, Minister of Community Safety and Correctional Services, Attorney General of Ontario, OPP Association (Karl Walsh) (respondents)

(DC-551-14; 2015 ONSC 7718)

Indexed As: Amormino v. Police Services Board et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Gordon, R.S.J., Molloy and Sanderson, JJ.

December 11, 2015.

Summary:

Amormino, an officer with the Ontario Provincial Police, was charged with eight counts of workplace misconduct under the Police Services Act. He applied for judicial review, challenging the constitutionality of the disciplinary proceedings, and applied for a stay of the disciplinary proceedings pending the determination of the judicial review application.

The Ontario Divisional Court, per Sanderson, J., in a decision reported at 341 O.A.C. 267, allowed the application for a stay of proceedings.

The Ontario Divisional Court dismissed the application for judicial review.

Administrative Law - Topic 8868

Boards and tribunals - Members - Independence and impartiality - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - He applied for judicial review, asserting that all tribunals had to, as a starting point, be independent and free of bias - The Ontario Divisional Court rejected the assertion, stating that "In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch) [2001, SCC], the Supreme Court of Canada confirmed that, absent constitutional constraints, the degree of independence required of a particular tribunal is determined by its enabling statute. In the case before us, the Police Services Act expressly provides for the appointment of the adjudicator. Unless that appointment runs afoul of the constitution or is part of a process that does so, the legislature is entitled to have its determination of the degree of the adjudicator's independence or bias respected." - See paragraph 11.

Civil Rights - Topic 651.2

Liberty - Limitations on - Right to practice one's profession - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - The officer applied for judicial review - The officer and the respondent Ontario Provincial Police Association (OPPA) asserted that the officer faced dismissal and ultimately the loss of his career as a police officer - They asserted that one's ability to pursue a chosen profession was, or ought to be, a protected right under s. 7, and then when that ability was determined through a discipline process that did not provide procedural fairness, there was a deprivation of the rights to liberty and security of the person that ran afoul of the principles of fundamental justice - The Ontario Divisional Court stated that "we are bound by the decision of the Ontario Court of Appeal in the case of Mussani v. College of Physicians and Surgeons of Ontario [2004, CA], which was a matter involving the application of section 7 of the Charter. In that case, the Court determined that '... all serious disciplinary measures, even draconian ones, are not prohibited by the Charter'. It found that: 'The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession.' Although its findings were in the context of a physician, there is no reason why that same principle would not apply to a police officer. To accede to the OPPA argument would require us to reach a conclusion contrary to our Court of Appeal." - See paragraph 17.

Civil Rights - Topic 1206.5

Security of the person - General - Right to psychological integrity (incl. dignity, reputation, etc.) - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - He applied for judicial review, asserting that s. 7 of the Charter was engaged because of the potential effect of the misconduct proceedings on his reputation - The Ontario Divisional Court rejected the assertion, stating that "Although respect for a person's reputation, like respect for dignity of the person, is a value that underlies the Charter, it does not follow that protection of reputation or freedom from the stigma associated with something like disciplinary proceedings are independent constitutional rights afforded protection under section 7." - See paragraph 15.

Civil Rights - Topic 1210

Security of the person - General - [See Civil Rights - Topic 651.2 ].

Civil Rights - Topic 3105

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Minimal procedural protection - What constitutes (i.e., requirements of s. 7 of the Charter) - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - He applied for judicial review, asserting that s. 7 of the Charter was engaged because his constitutionally protected procedural rights were put at risk by the Act - The Ontario Divisional Court stated that "We do not agree that there are stand-alone 'procedural rights' guaranteed by section 7 of the Charter. There is only the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Although principles of fundamental justice may require that certain procedural safeguards apply to proceedings before a tribunal, those safeguards rise to constitutional prominence in the context of section 7 only if their failure results in the deprivation of life, liberty or security of the person." - See paragraph 14.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - [See Civil Rights - Topic 651.2 and Civil Rights - Topic 3105 ].

Civil Rights - Topic 3180

Trials - Dye process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - [See Civil Rights - Topic 651.2 and Civil Rights - Topic 3105 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See Civil Rights - Topic 651.2 and Civil Rights - Topic 3105 ].

Civil Rights- Topic 4631

Right to counsel - Appointment of counsel by the court or the state - General - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - He applied for judicial review, seeking, inter alia, to have the respondent Ontario Provincial Police Association pay for counsel of his choice in the disciplinary proceedings - The Ontario Divisional Court denied the request - The officer cited no authority to support the request - The Association owed no duty to the officer in respect of discipline proceedings and was not a party to those proceedings - It could not be said to be an arm of the state such as to ground an award for advanced costs - The court had no jurisdiction to make the order - See paragraph 21.

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - [See Civil Rights - Topic 1206.5 ].

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - General - Application - Section 11 - A police officer was charged with eight counts of workplace misconduct under the Police Services Act - He applied for judicial review, asserting that the proceedings contravened his s. 11 Charter rights - The Ontario Divisional Court stated that "... section 11 of the Charter applies to only criminal or penal matters and not to discipline proceedings. The proceedings against the Applicant involve only employment related discipline. There is no jurisdiction under the Police Services Act to impose incarceration or fines in misconduct proceedings. We conclude that section 11 is of no application and that the Applicant's rights thereunder are not engaged." - See paragraph 12.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - [See Civil Rights - Topic 3105 ].

Courts - Topic 563

Judges - Powers - To appoint counsel - [See Civil Rights - Topic 4631 ].

Courts - Topic 1761

Powers - Appointment of counsel - General - [See Civil Rights - Topic 4631 ].

Police - Topic 4142

Internal organization - Discipline - Boards - Constitution of board - [See Administrative Law - Topic 8868 ].

Police - Topic 4187

Internal organization - Discipline - Hearing - Requirements of natural justice or principles of fundamental justice - [See Administrative Law - Topic 8868 , Civil Rights - Topic 651.2 , Civil Rights - Topic 1206.5 and Civil Rights - Topic 3105 ].

Police - Topic 4243

Internal organization - Discipline - Rights of officers - Charter rights - [See Civil Rights - Topic 651.2 , Civil Rights - Topic 1206.5 , Civil Rights - Topic 3105 and Civil Rights - Topic 8305.1 ].

Practice - Topic 7883

Costs - Funding before judgment - When interim or advance costs available - [See Civil Rights - Topic 4631 ].

Cases Noticed:

Ocean Port Hotel Ltd. v. Liquor Control Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 11].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 12].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 13].

Blencoe v. Human Rights Commission (B.C.), [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 15].

Mussani v. College of Physicians and Surgeons (Ont.) (2004), 193 O.A.C. 23 (C.A.), folld. [para. 17].

Counsel:

Rocco Galati, for the applicant;

Ian J. Roland and Jessica (Jesse) Elders, for the respondent, OPP Association (Karl Walsh);

Christopher Diana and Michael Dunn, for the remaining respondents.

This application was heard on December 7, 2015, by Gordon, R.S.J., Molloy and Sanderson, JJ., of the Ontario Divisional Court. The court released the following decision on December 11, 2015.