Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Supreme Court (Canada)
• Judge: Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.
• Citation: (1978), 23 N.R. 410 (SCC),1978 CanLII 24 (SCC),3 ACWS 185,[1978] SCJ No 88 (QL),[1978] 1 SCR 311,23 NR 410,[1979] 1 SCR 311,AZ-79111025,88 DLR (3d) 671,[1978] CarswellOnt 609
• Date: 03 October 1978
• Subject Matter: ADMINISTRATIVE LAW,STATUTES,POLICE

Nicholson v. Haldimand-Norfolk Police (1978), 23 N.R. 410 (SCC)

MLB headnote and full text

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario

Indexed As: Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario

Supreme Court of Canada

Laskin, C.J.C., Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte, JJ.

October 3, 1978.

Summary:

This case arose out of the dismissal of a policeman. The man was hired as a policeman by the Town of Caledonia, Ontario on March 1, 1973. On June 4, 1974, before the expiration of a probationary period, the policeman was dismissed without notice and without notice of the reasons for his dismissal. The policeman successfully applied to the Ontario Divisional Court to quash his dismissal. The Divisional Court held that the policeman was entitled to be treated fairly even though a Police Act regulation denied the policeman a hearing because he had not served for 18 months. The policeman's employer appealed to the Ontario Court of Appeal.

The Ontario Court of Appeal, set aside the judgment of the Divisional Court and held that because the policeman did not complete the 18 month probationary period he was not entitled to notice of any kind. The judgment of the Ontario Court of Appeal is reported at 12 O.R.(2d) 337; 69 D.L.R.(3d) 13. The policeman appealed to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeal, set aside the judgment of the Ontario Court of Appeal and restored the judgment of the Ontario Divisional Court. The Supreme Court of Canada held that the policeman should have been told the reason for his dismissal and should have been given an opportunity to respond even though the policeman failed to complete the 18 month probationary period (a Police Act regulation denied the policeman a hearing because he had not served 18 months). The Supreme Court of Canada stated that the policeman was an office holder and was entitled to be treated fairly even though he was not entitled to a hearing.

Martland, Pigeon, Beetz and Pratte, JJ., dissenting, in the Supreme Court of Canada, would have dismissed the appeal and would have affirmed the judgment of the Ontario Court of Appeal. Martland, J., stated that the dismissal of the policeman was a purely administrative decision and, accordingly, the employer had no duty to explain to the policeman why his services were no longer required or give him an opportunity to be heard. See paragraph 45.

Police - Topic 4112

Internal organization - Dismissal of members - Notice of reason for dismissal and opportunity to respond - A man was hired as a policeman by the Town of Caledonia, Ontario on March 1, 1973 - On June 4, 1974, before the expiration of a probationary period, the policeman was dismissed without notice and without notice of the reasons for his dismissal - The Supreme Court of Canada held that the policeman should have been told of the reason for his dismissal and should have been given an opportunity to respond even though a Police Act regulation denied the policeman a hearing because he had not served 18 months - The Supreme Court of Canada stated that the policeman was an office holder and was entitled to be treated fairly.

Police - Topic 4006

Internal organization - Status or relation of police officer - The Supreme Court of Canada stated that a police officer is an office holder and is not in an ordinary master-servant relationship with his employer - See paragraphs 10 and 17.

Administrative Law - Topic 2004

Natural justice - General principles - What are the requirements of natural justice - The Supreme Court of Canada stated that the requirements of natural justice depend upon the circumstances of each particular case and the subject matter under consideration - See paragraph 25.

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly - The Supreme Court of Canada stated that persons exercising administrative or executive powers have a duty to act fairly - See paragraph 22.

Administrative Law - Topic 1001

Classification of power or function - General principles - The Supreme Court of Canada referred to the difficulty of the classification of statutory functions - See paragraph 23.

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Express mention of one thing implies the exclusion of another (expressio unius est exclusio alterius) - The Supreme Court of Canada referred to an example of the expressio unius rule being carried "much too far" (see paragraphs 12 and 18) - The Supreme Court of Canada stated that the rule should not be applied when it leads to inconsistency or injustice - See paragraph 18.

Cases Noticed:

Reference under the Constitutional Questions Act, R, [1957] O.R. 28, refd to. [para. 8].

Cardinal and the Board of Commissioners of Police of Cornwall, Re (1974), 2 O.R.(2d) 183, refd to. [para. 8].

Ridge v. Baldwin, [1964] A.C. 40, refd to. [para. 8], dist. [para. 39].

Attorney General of New South Wales v. Perpetual Trustee Co. (Ld.), [1955] A.C. 457, refd to. [para. 17].

Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, refd to. [para. 18].

Lowe v. Darling & Son, Re, [1906] 2 K.B. 772, refd to. [para. 18].

Colquhoun v. Brooks (1888), 21 Q.B.D. 52, refd to. [para. 18].

Malloch v. Aberdeen Corporation, [1971] 2 All E.R. 1278, refd to. [para. 20]; dist. [para. 41].

Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373, folld. [para. 22].

Pearlberg v. Varty, [1972] 1 W.L.R. 534, refd to. [para. 24].

Furnell v. Whangarei High Schools Board, [1973] A.C. 660, refd to. [para. 25]; dist. [para. 43].

Russell v. Duke of Norfolk, [1949] 1 All E.R. 109, 118, refd to. [para. 25].

Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13, refd to. [para. 26].

Statutes Noticed:

Police Act Regulations, R.S.O. 1970, c. 351, sect. 27 of Regulation 680 [para. 5].

Authors and Works Noticed:

de Smith, Judicial Review of Administrative Action, 3rd Ed., (1973), page 200 [para. 20]; 208 [para. 23].

Mullan, Fairness: The New Natural Justice (1975), 25 Univ. of Tor. L.J. 281 [para. 22].

Counsel:

Ian Scott, Q.C., for the appellant;

P.D. Amey, for the respondent HaldimandNorfolk;

Dennis Brown, for the intervenant the Attorney General of Ontario.

This appeal was heard by LASKIN, C.J.C., MARTLAND, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ, ESTEY and PRATTE, JJ. of the Supreme Court of Canada at Ottawa, Ontario on February 22, 1978.

The judgment of the Supreme Court of Canada was delivered on October 3, 1978 and the following opinions were filed:

LASKIN, C.J.C. - see paragraphs 1 to 31.

MARTLAND, J., dissenting - see paragraphs 32 to 46.

RITCHIE, SPENCE, DICKSON and ESTEY, JJ. concurred with LASKIN, C.J.C.

PIGEON, BEETZ and PRATTE, JJ. concurred with MARTLAND, J.