Dulmage and Sommer v. Police Complaints Commissioner, (1994) 75 O.A.C. 305 (DC)

• Judge: O'Driscoll, O'Brien and Moldaver, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: November 30, 1994
• Jurisdiction: Ontario
• Citations: (1994), 75 O.A.C. 305 (DC)

Dulmage v. Police Complaints Commr. (1994), 75 O.A.C. 305 (DC)

MLB headnote and full text

In the Matter of a Board of Inquiry pursuant to the provisions of the Police Services Act, R.S.O. 1990, c. P-15;

And in the Matter of a complaint by Audrey Smith against Police Constables Michael Dulmage and Michael Sommer;

And in the Matter of a decision of the Board of Inquiry;

And in the Matter of the Judicial Review Procedure Act, R.S.O. 1990, c. J-1.

Police Constables Michael Dulmage and Michael Sommer (applicants) v. The Police Complaints Commissioner and the Board of Inquiry constituted under the Police Services Act (respondents)

(No. 603/94)

Indexed As: Dulmage and Sommer v. Police Complaints Commissioner

Ontario Court of Justice

General Division

Divisional Court

O'Driscoll, O'Brien and Moldaver, JJ.

November 30, 1994.

Summary:

A woman complained that two police officers acted improperly when they "caused a female police officer to conduct a public strip search of the complainant". A board of inquiry was appointed under the Police Services Act. The police officers applied to the board for an order to disqualify one of the three members of the board. The police officers alleged reasonable apprehension of bias. Later the police officers applied to have all three members withdraw. The board dismissed the applications. The police officers applied for judicial review of the decisions of the board.

The Ontario Divisional Court allowed the application, quashed the decision dismissing the application to disqualify and ordered that the proceedings be heard by a completely differently constituted panel.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias, apprehension of - A woman complained of improper conduct by two City of Toronto police officers when they allegedly caused a public strip search of the woman - A board of inquiry, consist­ing of three persons, was appointed - Ms. Douglas, a member of the board, was President of the Mississauga chapter of the Congress of Black Women of Canada - An officer of the Toronto chap­ter of the Congress of Black Women of Canada made inflammatory statements in Toronto about the conduct of the two officers (see paragraph 13) - The Ontario Divisional Court held that Ms. Douglas should have been disqualified on the ground of reason­able apprehension of bias on the part of police officers (see para­graphs 31 to 33).

Cases Noticed:

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 29].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; [1980] 3 W.W.R. 125, refd to. [para. 30].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al. (1992), 64 O.A.C. 321; 98 D.L.R.(4th) 762 (Div. Ct.), refd to. [para. 69].

Robinson v. Comité Garderie Plein Soleil (1992), 8 Admin. L.R.(2d) 304 (N.W.T.S.C.), refd to. [para. 69].

Duncan, Re, [1958] S.C.R. 41, refd to. [para. 70].

Counsel:

Joanne Mulcahy, for the applicants;

W.J. Manuel, for the respondents.

This application was heard on October 7, 11 and 12, 1994, before O'Driscoll, O'Brien and Moldaver, JJ., of the Ontario Divisional Court.

On November 30, 1994, the judgment of the court was rendered and the following opinions were filed:

O'Brien, J. (O'Driscoll, J., concurring) - see paragraphs 1 to 37;

Moldaver, J., dissenting in part - see paragraphs 38 to 79.