Magiskan v. Nashnawbe-Aski Police Service, 2010 ONSC 163

Ontario Superior Court, January 12, 2010

Available at : http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc163/2010onsc163.html

In a labour law context, the Ontario Superior Court dismissed the application for judicial review sought by Patricia Magiskan (« the applicant ») of the decision by the Chief of Police of the Nashnawbe-Aski Police Service (« NAPS ») to terminate her employment, and of the subsequent decision of terminating her appointment as a First Nations Constable by the Ontario Provincial Police (« OPP ») Commissioner due to unjustified delay in filing of application.

The facts leading to the litigation are as follows :

The applicant was first appointed a First Nations Constable by the OPP Commissioner to the Aroland First Nation as a probationary police officer in 1994. In 1997, performance reviews conducted by the OPP identified specific and significant concerns with the applicant’s performance.

The respondent NAPS, a non-statutory Aboriginal Police service (but not a police service under the Police Services Act), became involved with the Applicant after it entered into a tripartite agreement with the federal and provincial governments, by which NAPS took over policing in relation to a number of First Nation communities. The applicant signed a new employment contract on December 15, 1997 in which NAPS reserved itself the right to terminate employment without notice « in the absolute discretion » of NAPS during the first twelve months of the contract.

Between December 29, 1997 and October 1998, the applicant was charged with various criminal offenses, but was acquitted of all charges by October 2003. The applicant was on disability leave between December 1997 and early July 1998. NAPS did not have access to her personnel file before hiring her in December 1997 and subsequently obtained her personnel records.

The applicant was terminated from her employment with NAPS by letter dated July 14, 1998, without notice or warning and without a hearing. The letter stated that the reason was « unsatisfactory work performance » and there was no invitation for the applicant to respond to the letter. In addition, her appointment as a First Nations Constable was further terminated effective November 2, 1998 by the OPP Commissioner. She then launched an application for judicial review against NAPS in January 1999, which was later dismissed for delay in July 2003.

The present application for judicial review was filed on September 28, 2007, but was not perfected until October 17, 2008, more than a year after it was filed, five years after the first judicial review application was dismissed for delay and ten years after the impugned decision was made.

The issues are the following :

  1. Should this application be dismissed for delay?
  2. Was the applicant employed by both NAPS and the OPP?
  3. Did the Respondents, or either of them, owe a duty of procedural fairness to the Applicant, and if so, was the duty fulfilled?

The applicant claimed that she was employed by both NAPS and the OPP and that they owed her a duty of procedural fairness and that it was not fulfilled since both Respondents neither disclosed the reasons of her dismissal nor did they afford her the opportunity to respond. Her main explanation for the delay in challenging NAPS decision to terminate her employment was her preoccupation with the criminal charges she was facing. She was not aware of the fact that her original review application was dismissed until early 2004 when she consulted her present counsel to launch a wrongful dismissal civil suit, which was subsequently abandoned in 2007. She further claims that an adequate explanation for the delay had been provided in her affidavit of October 17, 2007.

The respondent NAPS claimed that there did not appear to be any reasonable explanation for the applicant’s failure to follow through with the judicial review application commenced in 1999 or for her delay in commencing this application for judicial review. It also submitted that it would suffer prejudice if the application for judicial review were permitted to proceed because any witnesses who can be located and would be available to give evidence would be handicapped by the passage of time as all personnel have since retired or moved.

As for respondent OPP’s position, since the applicant was bringing the application for judicial review nine years after the impugned decision was made, it submits that this application should be dismissed for « extreme, unjustified » delay and that the applicant did not provide any reasonable explanation for the delay. Finally, the applicant was never an employee of the OPP, or if it was an « employer » before 1998, such relationship ended with the tripartite agreement and the transition of policing responsibility to NAPS in April 1998.

The Court determined that the application should be dismissed on the basis of delay.

The applicant’s ability to challenge the decision of the OPP by judicial review had been established by the time she first brought an application for judicial review in 1999 and did not depend on later jurisprudence. Although MacDonald v. Anishinabek Police Service (2006), 83 O.R. (3d) 132 established the right of judicial review of a non-statutory aboriginal police service’s decision to terminate the employment of one of its officers, it should not be considered a landmark case. The right of judicial review of an OPP Commissioners’ decision to terminate an appointment under the Police Services Act was established in 1998 with Bruce v. Ontario (Provincial Police), [1998] O.J. No. 2024.

Furthermore, the Court found that there was insufficient explanation for the delay in bringing the application against the OPP, as there was actual prejudice in their ability to make full answer and defence. Similarly, with regard to NAPS, the Court also found the applicant’s explanations for the delay unsatisfactory. Finally, the applicant’s need to wait for the respondents’ materials as an explanation for the delay of thirteen months in perfecting this application after it was first filed failed to convince the Court to grant the application for judicial review.