Ottawa Police Services v. Diafwila, 2016 ONCA 627

• Judge: Feldman, MacPherson and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: January 26, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONCA 627;(2016), 352 O.A.C. 310 (CA)

Police Services v. Diafwila (2016), 352 O.A.C. 310 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AU.016

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

(C60683; 2016 ONCA 627)

Indexed As: Ottawa Police Services v. Diafwila

Ontario Court of Appeal

Feldman, MacPherson and Miller, JJ.A.

August 16, 2016.

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 had 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. See 333 O.A.C. 10. The officer appealed.

The Ontario Court of Appeal allowed the appeal on procedural grounds. The court held that, where no new evidence had been received, the Commission was required to defer to the hearing officer's findings of fact; however, the Commission owed no deference on questions of law. The court held that the Commission was not unreasonable in finding that the hearing officer misinterpreted the law when he determined that the OPS was entitled to depart from the strict adherence to its policies and apply an ad hoc procedure. The Commission was entitled to a high level of deference and the majority of the Divisional Court erred in granting the application and setting aside the Commission's decision.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - See paragraphs 52 to 63.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - See paragraphs 52 to 63.

Courts - Topic 7503

Provincial courts - Ontario - Divisional Court - Jurisdiction - Respecting judicial review - General - See paragraph 52.

Police - Topic 4076.8

Internal Organization - Discipline of members - Unsatisfactory work performance - See paragraphs 1 to 71.

Police - Topic 4166

Internal organization - Discipline - Appeals and judicial review - Powers of appeal or review board - See paragraphs 53 to 63.

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - See paragraphs 50 and 51.

Police - Topic 6742

Police Commission - Judicial review - Scope or standard of review - See paragraphs 50 and 51.

Counsel:

Paul Champ, for the appellant;

Robert E. Houston, for the respondent, Ottawa Police Services;

Benson Cowan and Melanie Goren, for the respondent, Ontario Civilian Police Commission.

This appeal was heard on January 26, 2016, by Feldman, MacPherson and Miller, JJ.A., of the Ontario Court of Appeal. Miller, J.A., delivered the following decision for the court on August 16, 2016.