J.N. v. Durham Regional Police Services Board et al., (2012) 294 O.A.C. 56 (CA)

• Judge: Weiler, Blair and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 15, 2012
• Jurisdiction: Ontario
• Citations: (2012), 294 O.A.C. 56 (CA);2012 ONCA 428

J.N. v. Police Services Bd. (2012), 294 O.A.C. 56 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JN.044

J.N. (applicant/respondent) v. The Durham Regional Police Service and The Durham Regional Police Services Board (respondents/appellants)

(C53887; 2012 ONCA 428)

Indexed As: J.N. v. Durham Regional Police Services Board et al.

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

June 21, 2012.

Summary:

J.N.'s siblings alleged that she had assaulted their father by striking him on the leg. The charge was withdrawn at the Crown's request, presumably for lack of evidence. Subsequently, J.N. was required to obtain a police records check as part of a job application with the Durham Catholic District School Board. J.N. submitted a Criminal Information Request (CIR), which included a Vulnerable Persons Search, to the Durham Regional Police Service (DRPS). The CIR results included a reference to the withdrawn assault charge. An ad hoc Committee of the DRPS refused J.N.'s request to remove the reference. J.N. asked for a reconsideration, which the DRPS treated as a complaint to the Chief of Police under the Police Services Act (PSA) relating to the "policies of or services provided by" the DRPS. It was rejected. J.N. requested that the Chief's decision be reviewed under the PSA's appeal procedures. The Durham Regional Police Services Board (Board) denied the request. J.N. did not seek judicial review of any of these decisions. She applied instead under Civil Procedure Rule 14.05(3)(g.1) for an order that the reference to the withdrawn charge be removed, arguing that the DRPS and the Board had violated a common law duty of fairness owed to her, as well as her s. 7 Charter rights, by failing to provide an adequate process and effective remedy to remove the withdrawn charge from her CIR.

The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 2892, allowed the application. The DRPS and the Board appealed.

The Ontario Court of Appeal allowed the appeal, holding that the application judge did not have jurisdiction to quash the decision of the ad hoc Committee, Chief of Police or Board.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 1010

Classification of power or function - General principles - Statutory powers - J.N.'s siblings alleged that she had assaulted their father by striking him on the leg - The charge was withdrawn at the Crown's request, presumably for lack of evidence - Subsequently, J.N. was required to obtain a police records check as part of a job application with the Durham Catholic District School Board - J.N. submitted a Criminal Information Request (CIR), which included a Vulnerable Persons Search, to the Durham Regional Police Service (DRPS) - The CIR results included a reference to the withdrawn assault charge - An ad hoc Committee of the DRPS refused J.N.'s request to remove the reference - The Ontario Court of Appeal rejected the argument that the ad hoc Committee was a non-statutory body - It might not be a body created by statute or regulation itself, but it was an informal decision-making body created by the DRPS, which was a statutory body, and its decisions were those of that statutory body - The decision affected J.N.'s legal rights and privileges respecting the retention of her non-conviction information by the police services and in that sense involved the exercise of a "statutory power of decision" by the ad hoc Committee (Judicial Review Procedure Act, s. 1) - Second, even if the ad hoc Committee was not a statutory body, its decisions were those of a public administrative authority affecting J.N.'s rights, privileges and interests and therefore subject to the common law principles of procedural fairness - In either of these scenarios, the decision was in essence an administrative decision of the type that was subject to judicial review - See paragraphs 18 and 19.

Administrative Law - Topic 1021

Classification of power or function - Powers or functions classified as administrative - General - [See Administrative Law - Topic 1010 ].

Administrative Law - Topic 3211

Judicial review - General - Review of exercise of statutory power - [See Administrative Law - Topic 1010 ].

Courts - Topic 2346

Jurisdiction - Practice - Challenging jurisdiction - Time for - Appellants appealed a Superior Court judge's decision, on the ground, inter alia, that he lacked jurisdiction - The respondent argued that the appellants should not be permitted to raise this argument for the first time on appeal, relying on a well-accepted line of jurisprudence to the effect that issues ought not to be asserted for the first time at this level - The Ontario Court of Appeal held that this jurisprudence could not assist the respondent because the problem that had to be addressed was whether the court below had jurisdiction to determine the issues in the first place - See paragraph 24.

Courts - Topic 7503

Provincial courts - Ontario - Divisional Court - Jurisdiction - Respecting judicial review - General - J.N.'s siblings alleged that she had assaulted their father by striking him on the leg - The charge was withdrawn at the Crown's request, presumably for lack of evidence - Subsequently, J.N. was required to obtain a police records check as part of a job application with the Durham Catholic District School Board - J.N. submitted a Criminal Information Request (CIR), which included a Vulnerable Persons Search, to the Durham Regional Police Service (DRPS) - The CIR results included a reference to the withdrawn assault charge - An ad hoc Committee of the DRPS refused J.N.'s request to remove the reference - J.N. asked for a reconsideration, which the DRPS treated as a complaint to the Chief of Police under the Police Services Act (PSA) relating to the "policies of or services provided by" the DRPS - It was rejected - J.N. requested that the Chief's decision be reviewed under the PSA's appeal procedures - The Durham Regional Police Services Board (Board) denied the request - J.N. did not seek judicial review of any of these decisions - She applied instead under Civil Procedure Rule 14.05(3)(g.1) for an order in the form of an equitable remedy that the reference to the withdrawn charge be removed - She argued that the DRPS and the Board had violated a common law duty of fairness owed to her, as well as her s. 7 Charter rights, by failing to provide an adequate process and effective remedy to remove the withdrawn charge from her CIR - A Superior Court judge allowed the application - The Ontario Court of Appeal overturned the decision, holding that the application judge lacked jurisdiction to quash the decision of the ad hoc Committee, Chief of Police or Board - The rule 14.05 application procedure was not open to J.N. because the substance of her claim was for judicial review of the administrative decision of a public statutory body, which jurisdiction had been given to the Divisional Court.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - [See Courts - Topic 2346 ].

Cases Noticed:

Tadros v. Peel Regional Police Service et al., [2007] O.T.C. Uned. K98; 87 O.R.(3d) 563 (Sup. Ct.), revd. (2009), 249 O.A.C. 135; 97 O.R.(3d) 212; 2009 ONCA 442, refd to. [paras. 6, 7].

Bard v. Longevity Acrylics Inc. et al., [2004] O.A.C. Uned. 431 (C.A.), refd to. [para. 16].

Canada Post Corp. v. Canadian Union of Postal Workers (1989), 70 O.R.(2d) 394 (H.C.), refd to. [para. 16].

Koumoudouros v. Municipality of Metropolitan Toronto (1982), 37 O.R.(2d) 656 (H.C.), refd to. [para. 16].

Halpern v. Toronto (City) Clerk - see Halpern et al. v. Wong et al.

Halpern et al. v. Wong et al., [2000] O.T.C. 541 (Sup. Ct.), refd to. [para. 16].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 18].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 18].

McArthur v. Canada (Attorney General) - see TeleZone Inc. v. Canada (Attorney General).

TeleZone Inc. v. Canada (Attorney General) (2008), 245 O.A.C. 91; 94 O.R.(3d) 19; 2008 ONCA 892, affd. [2010] 3 S.C.R. 626; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 25].

Rothgiesser v. Rothgiesser (2000), 128 O.A.C. 302; 46 O.R.(3d) 577 (C.A.), refd to. [para. 25].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 96(3) [para. 22].

Rules of Civil Procedure (Ont.), rule 14.05 [para. 16].

Counsel:

David Migicovsky, for the appellants;

Jonathan Shime and Megan Schwartzentruber, for the respondent;

Charlotte Kanya-Forstner, Janet E. Minor and Sara Weinrib, for the intervener, Attorney General of Ontario;

David Rose and Stacey Nichols, for the intervener, Canadian Civil Liberties Association.

This appeal was heard on May 15, 2012, by Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal, who delivered the following decision on June 21, 2012.