The appeal body can consider evidence by the initial administrative decision maker to determine if their decision was reasonable, even if the reasons themselves are not detailed. A finding of reasonableness can be made based upon both the evidence before the reviewing body and the law.
Administrative law – Decisions reviewed – Police Commission – Failure to provide reasons – Judicial review – Application – Standard of review – Reasonableness – Professions – Police
Correa v. Ontario (Civilian Police Commission),  O.J. No. 438, 2020 ONSC 133, Ontario Superior Court of Justice, February 3, 2020, K.E. Swinton, R.A. Lococo and F.L. Myers JJ.
Mr. Correa was an officer in the Toronto Police Services (“TPS”) and brought an application for judicial review of a decision of the Ontario Civilian Police Commission (the “Commission”). The Commission had upheld a finding of misconduct by a Hearing Officer based on the unlawful arrest of Mr. McIsaac during events surrounding the meeting of the G20 in Toronto. The applicant’s main argument was that the reasons were inadequate and therefore the Commission should not have upheld the finding of misconduct and that the finding of misconduct was unreasonable.
Mr. McIsaac was arrested by Mr. Correa for obstruction of justice, breach of peace, and causing a disturbance. There were four other officers present at the time of the arrest. There was a four day hearing before the Hearing Officer, where the officers conceded that there had been no grounds to arrest for obstruction of justice. There the Hearing Officer found the applicant and two other officers guilty of misconduct and the other two officers guilty of discreditable conduct.
All of the officers appealed to the Commission. The appeal was successful with respect to the charge of unnecessary force because of the inadequacy of the reasons of the hearing officer; however the Commission upheld the finding of misconduct against the applicant based on unlawful arrest. The Commission rejected the applicant’s argument that the reasons were so inadequate as to preclude meaningful appellate review, stating that video evidence of the arrest was sufficient to buttress the reasons. The Commission set out the standard of review to be applied to the Hearing Officer’s decision as reasonableness for questions of fact and mixed fact and law and correctness for questions of law.
The applicant argued that the commission erred in upholding the count of misconduct. He stated that the Commission should have applied an appellate standard of review rather than a review for reasonableness. Secondly, he argued that the Commission’s decision was unreasonable because the Hearing Officer had failed to consider whether the applicant lacked good and sufficient cause for arrest.
It was held that the recent decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, confirmed that the standard of review to be applied was reasonableness, and that there was nothing in the statutory framework to rebut this presumption. It was held that the Commission reasonably concluded that the Reasons of the Hearing Officer were adequate. It was stated that the appellate body is in the best position to determine the adequacy of the reasons and that in this case, the Commission was in the best position to determine the adequacy of the reasons of the Hearing Officer.
The Commission examined the reasons of the Hearing Officer in light of the record, particularly the videos. Where there was much to be desired in terms of the reasons, those findings were set aside. Regarding the finding of unlawful arrest against the applicant, it was determined that there was no basis for appellate intervention. It was held that this was a reasonable conclusion and that the Court should not substitute its view on the adequacy of the reasons.
It was held that the Commission’s determination regarding the misconduct finding was also subject to review on a standard of reasonableness by the Court. It was held that the Commission was entitled to consider the evidence before the Hearing Officer to determine whether there was an error in finding misconduct. The applicant submitted that Vavilov supports a more robust reasonableness review. It was held that this was not the case and that rather, the majority in Vavilov gave guidance as to how to conduct a review for reasonableness, drawing on its past jurisprudence. In the present case it was held that there is a line of analysis that supports the Commission’s conclusion, and that the outcome was reasonable considering both the evidence and the law. The application for review was accordingly dismissed.
This case was digested by Deanna C. Froese, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Deanna C. Froese at firstname.lastname@example.org.