Wall v. Office of the Independent Police Review Director, (2014) 327 O.A.C. 276 (CA)

• Judge: Feldman, Blair and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 12, 2014
• Jurisdiction: Ontario
• Citations: (2014), 327 O.A.C. 276 (CA);2014 ONCA 884

Wall v. Police Review Dir. (2014), 327 O.A.C. 276 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.024

Jason Wall (respondent) v. Office of the Independent Police Review Director (appellant)

(C58189; 2014 ONCA 884)

Indexed As: Wall v. Office of the Independent Police Review Director

Ontario Court of Appeal

Feldman, Blair and Pepall, JJ.A.

December 11, 2014.

Summary:

Wall filed a complaint on December 28, 2010, against unknown police officers. Following an investigation, the Office of the Independent Police Review Director (the Director) concluded that the complaint was substantiated and was of a serious nature. Further, the Director found that there were reasonable grounds to believe that the officers who had arrested Wall were guilty of misconduct. Formal charges were laid against the arresting officers. The investigative report was released September 7, 2011. The report contained information about the possible involvement of other officers higher up the chain of command, including the Chief of Police. Wall requested that the Director fully investigate his initial complaint or, alternatively, that a new complaint against the Chief of Police and any other officers involved be investigated. The Director treated the matter as a new complaint and refused to deal with it as it was made more than six months after the facts on which it was based (Police Services Act, s. 60(2)). Wall applied for judicial review.

The Ontario Divisional Court, in a decision reported at 309 O.A.C. 252, allowed the application, quashed the decision and remitted the matter to the Director for reconsideration. The court awarded Wall costs of $20,000. The Director appealed the decision quashing the judicial review application and applied for leave to appeal the costs order.

The Ontario Court of Appeal granted leave to appeal the costs order but dismissed the appeals.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - Wall filed a complaint against unknown police officers - Following an investigation, the Office of the Independent Police Review Director (the Director) concluded that the complaint was substantiated and there were reasonable grounds to believe that the officers who had arrested Wall were guilty of misconduct - Charges were laid against the arresting officers - The investigative report was released - The report implicated other officers higher up the chain of command, including Blair - Wall requested the Director to fully investigate his initial complaint or, alternatively, that a new complaint against Blair and any other officers involved be investigated - The Director treated the matter as a new complaint and refused to deal with it as it was made more than six months after the facts on which it was based (Police Services Act, s. 60(2)) - The Divisional Court, in quashing the decision, stated that the only reasons given by the Director for the refusal was that he had the power not to deal with the complaint - That constituted a failure to provide reasons as required by s. 60(7) and procedural fairness - The absence of reasons rendered the decision unreasonable - The Ontario Court of Appeal affirmed the decision - See paragraphs 48 to 67.

Administrative Law - Topic 550

The hearing and decision - Decisions of tribunal - Reasons for decisions - Effect of lack of - [See Administrative Law - Topic 549 ].

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of) - [See Administrative Law - Topic 549 ].

Administrative Law - Topic 3349

Judicial review - General - Practice - Costs - Wall filed a complaint against unknown police officers respecting his arrest at the 2010 G20 summit - Following an investigation, the Office of the Independent Police Review Director (the Director) concluded that the complaint was substantiated and there were reasonable grounds to believe that the officers who had arrested Wall were guilty of misconduct - Charges were laid against the arresting officers - The investigative report was released - The report implicated other officers higher up the chain of command, including Blair - Wall requested the Director to fully investigate his initial complaint or, alternatively, that a new complaint against Blair and any other officers involved be investigated - The Director refused to deal with the matter - The Divisional Court quashed the decision and remitted the matter to the Director for reconsideration - The fact that this was public interest litigation was not a reason to deprive Wall of his costs - The law firm that acted for Wall did so on a pro bono basis and their only chance of any recovery was a costs award - The issues were complex - There was a public interest in encouraging experienced and competent counsel to take on such cases - The costs claimed ($27,845) represented the time spent by three counsel - It was appropriate for senior and junior counsel to be involved - However, given the hours spent, there had to have been some duplication of hours in the total - However, no disbursements were claimed - The court concluded that $20,000 was an appropriate costs award - The Ontario Court of Appeal affirmed the decision - See paragraphs 70 to 77.

Police - Topic 4284

Internal organization - Public Complaints Commission (incl. adjudicators and investigators) - Fairness of complaints procedure - [See Administrative Law - Topic 549 ].

Police - Topic 4286

Internal organization - Public complaints Commission (incl. adjudicators and investigators) - Time for complaint - Wall filed a complaint against unknown police officers - Following an investigation, the Office of the Independent Police Review Director (the Director) concluded that the complaint was substantiated and there were reasonable grounds to believe that the officers who had arrested Wall were guilty of misconduct - Charges were laid against the arresting officers - The investigative report was released - The report implicated other officers higher up the chain of command, including Blair - Wall requested the Director to fully investigate his initial complaint or, alternatively, that a new complaint against Blair and any other officers involved be investigated - The Director treated the matter as a new complaint and refused to deal with it as it was made more than six months after the facts on which it was based (Police Services Act, s. 60(2)) - The Divisional Court, in quashing the decision, stated that the six month period was a guideline, not a limitation period - Various factors were to be considered in applying s. 60(2), including the reasonableness of the delay, the discoverability principle and the considerations set out in s. 60(3) - The Director appealed, asserting that the Divisional Court erred by incorporating discoverability into the operation of s. 60(2) - The Ontario Court of Appeal rejected the assertion - There were three principal reasons why the timing of when a complainant knew (or ought reasonably to have known) that there was a basis for a complaint was a factor the Director had to consider: (1) there was nothing in the Act that indicated discoverability was excluded from the Director's consideration; (2) the overall scheme of Part V of the Act favoured the notion that complaints were generally to be dealt with; and (3) s. 60(3) of the Act required the Director to consider the public interest - See paragraphs 28 to 47.

Police - Topic 4288

Internal organization - Public Complaints Commission (incl. adjudicators and investigators) - Dismissal of complaint - Reasons - [See Administrative Law - Topic 549 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement - Successful party - Exceptions - Public interest or test case - [See Administrative Law - Topic 3349 ].

Practice - Topic 7063

Costs - Party and party costs - Counsel fees - Special or additional counsel - [See Administrative Law - Topic 3349 ].

Practice - Topic 7935.3

Costs - Party and party costs - Entitlement - Where party represented by pro bono counsel - [See Administrative Law - Topic 3349 ].

Cases Noticed:

Engel v. da Costa et al. (2008), 429 A.R. 184; 421 W.A.C. 184; 2008 ABCA 152, leave to appeal denied (2007), 390 N.R. 394 (S.C.C.), dist. [para. 43].

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. 63].

Gismondi v. Human Rights Commission (Ont.) et al. (2003), 169 O.A.C. 62 (Div. Ct.), dist. [para. 64].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 69].

Endicott v. Office of the Independent Police Review Director (2014), 319 O.A.C. 324; 273 D.L.R.(4th) 149; 2014 ONCA 363, refd to. [para. 69].

Statutes Noticed:

Police Services Act, R.S.O. 1990, c. P-15, sect. 60(2), sect. 60(7) [Appendix].

Authors and Works Noticed:

LeSage Report - see Ontario, Attorney General, Report on the Police Complaints System in Ontario (LeSage Report) (2005).

Ontario, Attorney General, Report on the Police Complaints System in Ontario (LeSage Report) (April 2005), generally [para. 19, footnote 1].

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), § 8.90 [para. 41].

Counsel:

Heather Mackay, for the appellant;

Clayton C. Ruby and Nader R. Hasan, for the respondent.

This application and these appeals were heard on September 12, 2014, by Feldman, Blair and Pepall, JJ.A., of the Ontario Court of Appeal. Blair, J.A., released the following decision for the court on December 11, 2014.