Symington v. Police Review Board (N.S.) et al., 2002 NSSC 69

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 08, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSSC 69;(2002), 202 N.S.R.(2d) 296 (SC)

Symington v. Police Review Bd. (2002), 202 N.S.R.(2d) 296 (SC);

 632 A.P.R. 296

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. MR.032

James Symington (plaintiff) v. Brian S. Creighton, Chairman of the Nova Scotia Police Review Board and Chief David McKinnon (respondents)

(S.H. 176669; 2002 NSSC 69)

Indexed As: Symington v. Police Review Board (N.S.) et al.

Nova Scotia Supreme Court

Moir, J.

February 8, 2002.

Summary:

Constable Symington was the subject of an internal disciplinary proceeding within the Halifax police force. The investigation was completed after the 60 days allowed by the Police Act Regulations (N.S.) had expired. The investigator applied to the Chairman of the Nova Scotia Police Review Board for an extension of the time to complete the investi­gation (Regulations, s. 21(3)). The Chair extended the time. Symington challenged the Chair's decision by way of an application for certiorari.

The Nova Scotia Supreme Court dismissed the application.

Police - Topic 4063

Internal organization - Discipline of mem­bers - Limitation periods - Judicial review of decision respecting - Section 21(3) of the Police Act Regulations (N.S.) provided that the Chair of the Nova Scotia Police Review Board could, upon request before or after the time limit had expired, extend the time to complete a disciplinary investi­gation of a member where the Chair of the Review Board was satisfied that there were reasonable grounds for granting the exten­sion and the extension would not unduly prejudice any member - The Nova Scotia Supreme Court held that the standard of review of the Chair's factual determi­nations under s. 21(3) and his exercise of discretion within what the legislation pro­vided was at the highest level - However, where the Chair implicitly or explicitly interpreted s. 21(3) so as to identify the limits of his jurisdiction, the standard was correctness - See paragraphs 7 to 13.

Police - Topic 4063

Internal organization - Discipline of mem­bers - Limitation periods - Section 21(3) of the Police Act Regulations (N.S.) provided, inter alia, that the Chair of the Nova Scotia Police Review Board could, upon request before or after the time limit had expired, extend the time to complete a disciplinary investigation of a member - The Nova Scotia Supreme Court held that s. 21(3) authorized the extension of time where an investigation was completed after the time limit expired - See paragraph 14.

Police - Topic 4063

Internal organization - Discipline of mem­bers - Limitation periods - Section 21(3) of the Police Act Regulations (N.S.) provided, inter alia, that the Chair of the Nova Scotia Police Review Board could, upon request before or after the time limit had expired, extend the time to complete a disciplinary investigation of a member - The Nova Scotia Supreme Court held that the Chair's discretion to extend the time to complete an investigation under s. 21(3) was not limited to the period of time requested by the investigator - A longer extension could be granted - See paragraph 15.

Police - Topic 4063

Internal organization - Discipline of mem­bers - Limitation periods - Constable Symington was the subject of an internal disciplinary proceeding within the Halifax police force - The investigation was com­pleted after the 60 days allowed by the Police Act Regulations (N.S.) had expired - The investigator applied to the Chairman of the Nova Scotia Police Review Board for a one-day extension of the time to complete the investigation (Regulations, s. 21(3)) - The Chair extended the time until seven days after the investigator received the Chair's decision to ensure technical compliance with the Regulations - On judicial review, Symington argued that there was no basis for the lengthy exten­sion which effectively gave the investigator an opportunity to re-open his investigation for a period of a week - The Nova Scotia Supreme Court rejected the argument - If the Chair concluded that a longer period was required to ensure compliance, that was a matter within his authority - See paragraph 20.

Police - Topic 4065

Internal organization - Discipline of mem­bers - Investigation - [See second, third and fourth Police - Topic 4063 ].

Cases Noticed:

Syndicat national des employés de la Com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 7].

U.E.S., Local 298 v. Bibeault - see Syndi­cat national des employés de la Commis­sion scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 7].

Pezim v. Superintendent of Brokers (B.C.) - see Pezim v. British Columbia Securi­ties Commission et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 7].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 7].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 7].

White v. Dartmouth (City) et al. (1991), 106 N.S.R.(2d) 45; 288 A.P.R. 45 (T.D.), refd to. [para. 8].

Halifax Regional Police Service v. Wilms et al. (1999), 177 N.S.R.(2d) 320; 542 A.P.R. 320 (S.C.), refd to. [para. 8].

Woolridge v. MacKinnon and Barss (1999), 178 N.S.R.(2d) 367; 549 A.P.R. 367 (S.C.), refd to. [para. 9].

Woolridge v. Halifax Regional Police Service - see Woolridge v. MacKinnon and Barss.

Zündel v. Citron et al. (2000), 256 N.R. 125 (F.C.A.), refd to. [para. 11].

Zündel v. Canadian Human Rights Com­mission - see Zündel v. Citron et al.

Statutes Noticed:

Police Act Regulations (N.S.), Reg. 134/94, sect. 21(3) [para. 6].

Counsel:

William M. Leahey, for the plaintiff;

Jamie S. Campbell and Harry Thurlow, articled clerk, for the Chairman of the Nova Scotia Police Review Board;

Joel E. Pink, Q.C., and Shane Parker, for Chief David McKinnon.

This application was heard at Halifax, Nova Scotia, on February 6 and 8, 2002, before Moir, J., of the Nova Scotia Supreme Court, who orally delivered the following decision on February 8, 2002. Written rea­sons for the decision were released on March 4, 2002.