Oversight Blues

While some regulators in Ontario are accountable to appeal tribunals (e.g., Licence Appeal Tribunal) and many Ontario regulators are scrutinized by the Office of the Fairness Commission, few are subject to true oversight bodies. Québec, British Columbia and the United Kingdom have much more experience with oversight bodies. One Ontario exception is the role of the Ontario Civilian Police Commission over police forces. That Commission has had extensive litigation with the Durham Regional Police Service (DRPS) in recent years including over the Commission’s appointment of an administrator in 2019. Some insight into the complexities of such oversight can be found in the decision of Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065 (CanLII), https://canlii.ca/t/jfqjq.

In that case the Commission directed the DRPS to halt a disciplinary prosecution of an officer on the basis that the preconditions for referral to discipline, including a formal investigation, had not been met. The DRPS challenged the direction on a number of grounds. The Court found that:

  1. The Commission had provided procedural fairness by adequately identifying the concern about compliance with the statutory preconditions for the discipline hearing and providing two opportunities for the DRPS to make written submissions about the concern.
  2. The Commission had not denied procedural fairness by refusing to grant a second request for an extension to make the written submissions. When considering the process as a whole the DRPS had been given adequate opportunity to make submissions. The extension requests were made late and the reasons given for the requests were not persuasive. Even though the second extension request was refused, the Commission considered the written submissions even though they were late.
  3. The DRPS had not established that an appearance of bias existed, the allegation of which was largely based on the argument that the history of conflicts between the DRPS and the Commission had created an adversarial relationship that amounted to institutional bias. The Court considered that the oversight role of the Commission could naturally lead to these sorts of conflicts and that the DRPS was required to provide more than speculation to establish bias.
  4. The decision made by the Commission about the statutory preconditions to discipline was reasonable.

This case demonstrates the type of unpleasantness that can arise where there is true oversight. Fortunately the experience in Québec, British Columbia and the United Kingdom suggests that these sorts of difficult relationships are the exception rather than the rule.

More Posts

The Business Did It

Business structures for registrants are quickly evolving in many sectors. Accountability for registrants is sometimes disputed where only the individuals, and not the business entities

A Suspension Is a Suspension

Ontario’s Divisional Court has upheld a finding that a registrant engaged in professional misconduct by trying to circumvent the impact of a suspension. In Casella