The applicant is a police officer with the Amherstburg Police Service. The respondent made a complaint to the Office of the Independent Policy Review Director (“OIPRD”) as a result of a confrontation he had with the applicant when he was pulled over. As a result of the confrontation, the respondent was charged with assaulting a police officer and resisting arrest, although he was eventually acquitted of both charges.

[2017] O.J. No. 924

2017 ONSC 1300

Ontario Superior Court of Justice, Divisional Court

February 27, 2017

H.E. Sachs, I.V.B. Nordheimer and N.J. Spies JJ.

The complaint to the OIPRD raised a number of issues including that the applicant unlawfully arrested the respondent, that he used unnecessary force and that he acted in a manner prejudicial to the discipline by using profane, abusive and insulting language. At the initial hearing, the Hearing Officer found the applicant not guilty of all of the charges. The respondent appealed the decision to the Ontario Civilian Policy Commission (OCPC). The OCPC allowed the appeal concluding that the Hearing Officer breached the respondent’s rights to natural justice and procedural fairness. Specifically, the respondent, who was unrepresented at the original hearing, was not provided the minimum level of assistance throughout the hearing according to the OCPC.

The applicant sought judicial review of the decision of the OCPC. The primary issue was whether the Hearing Officer had failed to provide the applicant the basic level of procedural fairness required. Interestingly, the applicant acknowledged a number of failings of the Hearing Officer including, for instance, that:

(a) the Hearing Officer did not confirm with the respondent that he was entitled to have legal counsel;

(b) the Hearing Officer did not explain the roles of the parties, the procedure, the right of each party to call witnesses and to introduce evidence; and

(c) the Hearing Officer did not invite the respondent to cross-examine any of the witnesses called at the hearing, save and except when the applicant gave evidence, but, even then, the Hearing Officer refused to give the respondent a reasonable time to prepare.

Notwithstanding this, the applicant argued that the respondent was unable to demonstrate “actual prejudice” and, therefore, there could be no denial of natural justice or a breach of procedural fairness. In other words, the applicant argued that for there to be a breach of procedural fairness in these circumstances, there needed to be actual prejudice suffered by the respondent.

This argument was rejected on judicial review. The court held, quite clearly, that actual prejudice is not required in order to establish a breach of natural justice or procedural fairness. The court reasoned that a breach of natural justice and procedural fairness are inherently prejudicial as the party is denied a meaningful role in the proceeding – indeed, the very purpose behind providing a party procedural fairness. The court also buttressed this conclusion noting that the respondent was an actual party to the proceeding (not an observer) under the provision of the relevant legislation (in this case, the Police Services Act). Therefore, the respondent was entitled to a high level of procedural fairness; arguably the same rights as counsel for the applicant.

As a result, the court had no trouble in concluding that the OCPC’s decision to order a fresh hearing was a reasonable one and, indeed, “was the correct one”