



COURT OF APPEAL FOR ONTARIO

CITATION: Jacobs v. Ottawa (Police Service), 2016 ONCA 345

DATE:  20160510

DOCKET: C61012

Laskin, Hourigan and Brown JJ.A.

BETWEEN

Constable
    Kevin Jacobs

Appellant

and

Ottawa
    Police Service (Chief of Police)

Mark
    Krupa (Public Complainant)

Ontario
    Civilian Police Commission

Respondents

and

Police Association of
    Ontario

Intervenor

W. Mark Wallace and Elizabeth Warren, for the appellant,
    Constable Kevin Jacobs

Ian J. Roland and Michael Fenrick, for the intervenor,
    Police Association of Ontario

Eric Granger and Lawrence Greenspon, for the respondent,
    Mark Krupa

Christiane F. Huneault, for the respondents Ottawa
    Police Service

Benson Cowan and Kathryn Chung, for the respondent,
    Ontario Civilian Police Commission

Heard:  April 11, 2016

On appeal from the decision of the Divisional Court of
    the Superior Court of Justice (P.T. Matlow, T.R. Lofchik and M. Donohue JJ.),
    dated May 27, 2015, with reasons reported at 2015 ONSC 2240.

Hourigan J.A.:

[1]

The appellant, Constable Kevin Jacobs, is a
    police officer employed by the respondent Ottawa Police Service. He was found
    guilty of misconduct under
the
Police
    Services Act
,
R.S.O. 1990, c. P.15 (the 
PSA
)
,
resulting from the
arrest of the respondent, Mark Krupa.
The respondent,
    the
Ontario Civilian Police Commission (the
    Commission), affirmed the hearing officers finding of guilt,
and the
    appellants judicial review application to the Divisional Court was dismissed.

[2]

The discrete issue for determination on this
    appeal is the standard of proof  applicable to a finding of misconduct under

s. 84(1) of the
PSA
,

which provides:

If at the conclusion of a hearing under subsection 66 (3), 68
    (5) or 76 (9) held by the chief of police, misconduct as defined in section 80
    or unsatisfactory work performance is proved on clear and convincing evidence,
    the chief of police shall take any action described in section 85.


[3]

The appellant and the intervenor, Police
    Association of Ontario, submit that s. 84(1) mandates a standard of proof that
    lies somewhere between a balance of probabilities and proof beyond a reasonable
    doubt, and that the hearing officer, the Commission, and the Divisional Court
    erred in finding that the standard of proof is a balance of probabilities.

[4]

The respondents take the position that the
    standard of proof for a finding of police misconduct is a balance of
    probabilities. They submit that clear and convincing evidence describes the
quality

of evidence generally required
    to meet the balance of probabilities
standard

in professional discipline matters and that this quality of evidence applies
    equally to police officers prosecuted under the
PSA
.

[5]

In reaching its
    conclusion that the standard of proof in disciplinary hearings under the
PSA
is a
    balance of probabilities, the Divisional Court held that the existence of an
    intermediate standard of proof was rejected by the Supreme Court of Canada in
F.H. v. McDougall
, 2008 SCC 53, [2008]
    3 S.C.R. 41, and that it was bound by this decision. The Divisional Court
    declined to follow the
Supreme Courts decision
    in
Penner v. Niagara (Regional Police Services Board)
,
2013 SCC 19
, [2013] 2 S.C.R.
    125, on the basis that the court did not undertake any analysis of whether a
    higher standard of proof applied to disciplinary proceedings under the
PSA
or refer to any jurisprudence.

[6]

In
    my view, the Divisional Court erred in relying on
McDougall

and in distinguishing
    the Supreme Courts remarks in
Penner
.


[7]

In
McDougall
,
    the Supreme Court considered
the civil standard of
    proof at common law

in a
civil claim alleging sexual assault. The main
    issue on appeal was whether a majority of the British Columbia Court of Appeal
    erred in finding that the trial judge misapplied the standard of proof in civil
    cases where allegations of morally blameworthy conduct have been made.
McDougall
did not purport to establish
    a universal standard applicable to statutory standards of proof. It is well-settled
    that it is within the authority of a legislature to create a standard of proof
    specific to a particular statute:
Stetler v. Agriculture, Food and Rural
    Affairs Appeal

(2005),

76 O.R. (3d) 321 (C.A.), at para. 79,
    leave to appeal refused (2006), 219 O.A.C. 400 (note) (S.C.C.). In my view,
    therefore, the Divisional Court erred in relying on
McDougall
.

[8]

The Divisional
    Court also erred in declining to follow the Supreme Courts decision in
Penner
. There,

the appellant made a complaint against two police officers under
    the
PSA
in relation to his arrest for disruptive behaviour in a
    courtroom. He also brought a civil action for damages arising from the same
    incident against the police officers, among others. The police officers were
    found not guilty of misconduct under the
PSA
and the Divisional Court
    ultimately upheld that finding. The respondents then filed a motion to
    dismiss the civil action on the basis of issue estoppel, taking the position
    that the disciplinary hearing finally determined the issues underpinning the
    civil action. That motion was successful in the Superior Court. This court
    dismissed an appeal of the motion judges order.

[9]


On further appeal to the Supreme
    Court,
a majority of the court held that it would be
    unfair to apply the discretionary remedy of estoppel to bar the appellants
    civil action because the appellant could not have reasonably contemplated that
    the officers acquittal at the disciplinary hearing would be conclusive of the
    outcome of his civil action. As part of its analysis, the court addressed, at
    para. 60, the different standards of proof in civil actions and
PSA
hearings:

As the Court of Appeal recognized, because the
PSA
requires that misconduct by a police
    officer be proved on clear and convincing evidence (s.64(10)), it follows
    that such a conclusion might, depending upon the nature of the factual
    findings, properly preclude relitigation of the issue of liability in a civil
    action where the balance of probabilities  a lower standard of proof  would
    apply.  However, this cannot be said in the case of an acquittal. 
    The prosecutors failure to prove the charges by clear and convincing
    evidence does not necessarily mean that those same allegations could not be
    established on a balance of probabilities.  Given the different standards
    of proof, there would have been no reason for a complainant to expect that
    issue estoppel would apply if the officers were acquittedThus, the parties
    could not reasonably have contemplated that the acquittal of the officers at
    the disciplinary hearing would be determinative of the outcome of Mr. Penners
    civil action.

[10]

Penner
was
    binding authority on the Divisional Court and it erred in distinguishing it on
    the basis that all parties in that case accepted that clear and convincing
    evidence was a higher standard of proof. In fact, a review of the written
    record and the oral submissions in the Supreme Court shows that there was no
    agreement on the appropriate standard of proof. Although counsel for the
    respondents consistently argued that the higher clear and convincing evidence
    standard was immaterial in the circumstances of the case, counsel for the
    intervenor, Canadian Police Association, argued that it was artificial to
    discuss a third standard in the light of the recent
McDougall
decision. In his reply, counsel for the appellant agreed that there was only
    one standard of proof in civil matters, citing the
McDougall
decision
    as conflating the standard of proof. Counsel thus retreated from the position
    taken in his factum that clear and convincing evidence is a higher standard of
    proof than a balance of probabilities. That concession, that
McDougall
determined that clear and convincing evidence is a standard within the balance
    of probabilities, was clearly rejected by the Supreme Court.

[11]

I also cannot accede to the respondents submission
    that the courts statement in
Penner
regarding the standard of proof
    under the
PSA
is
obiter dicta
. At para. 47, the court held
    that the parties reasonable expectations regarding the scope and effect of the
    administrative proceedings are shaped by the text and purpose of the
    legislative scheme. Therefore, the finding on the standard of proof was central
    to the courts analysis of the reasonable expectations of the parties, which
    was the basis on which a majority of the court overturned the decision below.

[12]

Counsel for the respondents fairly concede that
    if the Supreme Court determined the issue of the standard of proof under the
PSA
in
Penner
, the appeal must be allowed and it is unnecessary to engage
    in a statutory interpretation of s. 84(1). In my view, we are bound by the Supreme
    Courts statement in
Penner
that the standard of proof in
PSA
hearings is a higher standard of clear and convincing evidence and not a
    balance of probabilities.

[13]

I would grant the appeal and set aside the order
    of the Divisional Court
dismissing
    the appellants application for judicial review to quash the decision of the
    Commission
. The matter is remitted
to the Commission for further consideration
    in accordance with these reasons.

[14]

If the parties are unable to agree as to costs,
    they may make brief written submissions.

Released:  May 10, 2016 DB

C.
    W. Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree David Brown J.A.


