Ottawa Police Services v. Diafwila, (2015) 333 O.A.C. 10 (DC)

• Judge: Aitken, Lederer and Ramsay, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 29, 2015
• Jurisdiction: Ontario
• Citations: (2015), 333 O.A.C. 10 (DC);2015 ONSC 931

Police Services v. Diafwila (2015), 333 O.A.C. 10 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.036

Ottawa Police Services (applicant) v. Constable Emmanuel Diafwila (respondent)

(DC-14-2021: 2015 ONSC 931)

Indexed As: Ottawa Police Services v. Diafwila

Court of Ontario

Superior Court of Justice

Divisional Court

Aitken, Lederer and Ramsay, JJ.

March 10, 2015.

Summary:

The Ottawa Police Services applied for judicial review of the decision of the Ontario Civilian Police Commission, which allowed the respondent's appeal under s. 87 of the Police Services Act from the decision of a hearing officer in a hearing under s. 76(9). The hearing officer found the respondent guilty of the disciplinary offence of unsatisfactory work performance.

The Ontario Divisional Court, per Ramsay and Aitken, JJ., held that the Police Commission, in reviewing the hearing officer's decision, was required to apply the standard of reasonableness to questions of fact, and correctness to questions of law. The Divisional Court, per Ramsay and Lederer, JJ., allowed the application and remitted the matter to the Commission.

Police - Topic 4076.8

Internal Organization - Discipline of members - Unsatisfactory work performance - The Ottawa Police Services applied for judicial review of the decision of the Ontario Civilian Police Commission, which allowed the respondent's appeal under s. 87 of the Police Services Act from the decision of a hearing officer in a hearing under s. 76(9) - The hearing officer found the respondent guilty of the disciplinary offence of unsatisfactory work performance - The Ontario Divisional Court set aside the Commission's decision and remitted the matter to the Commission - The Commission's reversal of the hearing officer was the product of its unreasonable construction of the Regulation, which resulted in its failure to give due deference to the hearing officer's findings of fact - The Commission's decision was intelligible and transparent but not justifiable - It imposed a number of confusing and impossibly demanding preconditions that the law simply did not require - The result was perverse - There was no reasonable basis for finding a denial of natural justice or misapprehension of evidence - The Commission's decision on these points was intertwined with, and inspired by, its unreasonable construction of the Regulation - See paragraphs 1 to 48.

Police - Topic 4076.8

Internal Organization - Discipline of members - Unsatisfactory work performance - The Ottawa Police Services (the "Service") applied for judicial review of the decision of the Ontario Civilian Police Commission, which allowed the respondent's appeal under s. 87 of the Police Services Act from the decision of a hearing officer in a hearing under s. 76(9) - The hearing officer found the respondent guilty of the disciplinary offence of unsatisfactory work performance - The Ontario Divisional Court granted the application - The court rejected the argument that the Service had failed to fulfil statutory conditions precedent to prosecution - They had established a procedure, namely Policy 3.19, by which the officer's performance was to be assessed, as required by s. 29(3)(a) of the Regulation - Policy 3.19 did not require that entries be made in the tracking log every day - Nor did it require that all memos, notes, reports and verbal comments by coach officers, other officers and supervisors be made available to the respondent contemporaneously - If the Regulation was interpreted correctly, the evidence led inevitably to the conclusion that at the end of 2008, the respondent's performance was assessed in accordance with established procedures - The Regulation envisioned a "two-step process" - The assessment according to established procedures was the first step - Meeting the requirements of s. 29(3)(b) to (e) of the Regulation was the second step - Those paragraphs did not require repetition of the first step - During the second step, they required notice, accommodation, remedial help and the opportunity to improve - The Regulation did not specify a maximum time limit for the second step - Here, the second step took two years because the Service went to extraordinary lengths to give the respondent the chance to improve to the minimum acceptable standard - He never did - The hearing officer concluded that the process undertaken by the Service, although far from perfect, provided the respondent with an abundance of opportunities to: know the nature of the performance improvements required; obtain the assistance and advice of experienced officers and trainers; clarify the nature of the improvement required; and demonstrate his ability to perform the required tasks of an independent patrol officer - That was essentially what ss. 29(3)(b), (d) and (e) of the Regulation required - See paragraphs 12 to 32 and 45 to 48.

Police - Topic 6742

Police Commission - Judicial review - Scope or standard of review - The Ottawa Police Services applied for judicial review of the decision of the Ontario Civilian Police Commission, which allowed the respondent's appeal under s. 87 of the Police Services Act from the decision of a hearing officer in a hearing under s. 76(9) - The hearing officer found the respondent guilty of the disciplinary offence of unsatisfactory work performance - The Ontario Divisional Court held that the Police Commission, in reviewing the hearing officer's decision, was required to apply the standard of reasonableness to questions of fact, and correctness to questions of law - See paragraphs 2 and 59.

Cases Noticed:

Ontario Provincial Police v. Purbrick (2013), 307 O.A.C. 97; 227 A.C.W.S.(3d) 871; 2013 ONSC 2276 (Div. Ct.), refd to. [paras. 2, 50, 59].

McCormick v. Greater Sudbury Police Service (2010), 259 O.A.C. 226; 2010 ONSC 270 (Div. Ct.), dist. [para. 36].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 51].

Ontario Provincial Police v. Favretto (2004), 191 O.A.C. 3; 72 O.R.(3d) 681 (C.A.), refd to. [para. 79].

McLean v. British Columbia Securities Commission (2013), 347 B.C.A.C. 1; 593 W.A.C. 1; 452 N.R. 340; 2013 SCC 67, refd to. [para. 60].

Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association - see Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al.

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 60].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 61].

Ontario (Civilian Commission on Police Services) v. Browne - see Browne v. Ontario Civilian Commission on Police Services.

Browne v. Ontario Civilian Commission on Police Services (2001), 151 O.A.C. 302; 56 O.R.(3d) 673; 207 D.L.R.(4th) 415 (C.A.), refd to. [para. 97].

Kingsbury v. Heighton et al. (2003), 216 N.S.R.(2d) 277; 680 A.P.R. 277; 2003 NSCA 80, refd to. [para. 98].

Statutes Noticed:

Police Services Act, Ontario Regulation 268/10, sect. 29(3) [para. 12].

Counsel:

Robert E. Houston, Q.C., and Jonathan Ferris, for the applicant;

Paul Champ, for the respondent.

This application was heard on January 29, 2015, at Ottawa Ontario, by Aitken, Lederer, and Ramsay, JJ., of the Ontario Divisional Court. The court delivered the following decision on March 10, 2015, which was comprised of the following opinions:

Ramsay, J. - see paragraphs 1 to 44;

Ledererer, J., dissenting in part - see paragraphs 45 to 57;

Aitken, J., dissenting in part - see paragraphs 58 to 103.