



WARNING

The President of the panel hearing this appeal directs that an
    order restricting publication of certain documents in the Motion Record in this
    proceeding, pursuant to the Order of Swinton J., dated December 8, 2010, shall
    remain in effect until the conclusion of the criminal trial.




COURT OF APPEAL FOR ONTARIO

CITATION:
Ontario (Provincial
    Police) v. Rutigliano, 2012 ONCA 484

DATE: 20120706

DOCKET: C53914

OConnor A.C.J.O., MacPherson and Rouleau JJ.A.

BETWEEN

Commissioner, Ontario Provincial Police

Appellant

and

Michael Rutigliano

Respondent

David Rose, for the appellant

Owen M. Rees,
amicus curiae

Heard and released orally: July 4, 2012

On appeal from the order of the Divisional Court (Ferrier,
    Aston and Lederer JJ.), dated January 5, 2011.

ENDORSEMENT

[1]

The appellant is the Commissioner of the Ontario Provincial Police
    (OPP). The respondent Michael Rutigliano (Rutigliano) was at the relevant
    time a sergeant of the OPP. He was charged under the
Police Services Act
,
    R.S.O. 1990, c.P.15 (
PSA
) with discreditable conduct.

[2]

The then Commissioner appointed Retired Superintendent Maurice Elbers as
    the Adjudicator for the discipline hearing relating to Rutigliano. Rutigliano
    objected to the appointment on the basis of reasonable apprehension of bias and
    moved for the Adjudicator to recuse himself. In a ruling dated October 15,
    2010, the Adjudicator dismissed Rutiglianos motion. He concluded that [t]he
    cases and the evidence supplied to me in this Motion does not meet the test
    required for a recusal of the Adjudicator.

[3]

Rutigliano sought judicial review of this decision in the Divisional
    Court. In an oral decision dated January 5, 2011, the court (Ferrier, Aston and
    Lederer JJ.) held that there was a reasonable apprehension of bias as a result
    of the information the Adjudicator received, and the Adjudicators comments,
    during two previous
PSA
charges against Rutigliano. It ordered that
    the Adjudicator be removed from the proceedings.

[4]

On June 17, 2011, this court granted the Commissioners motion for leave
    to appeal.

[5]

Rutigliano retired from the OPP on July 1, 2011. By operation of s.
    90(1) of the
PSA
 no further action shall be taken under this Part
    in respect of the complaint after the date of resignation  the proceedings
    against Rutigliano came to an end.

[6]

On consent, the Commissioner sought an order appointing former counsel
    for Rutigliano as
amicus curiae
. On February 3, 2012, OConnor A.C.J.O.
    granted the order, but with this observation: It remains open to the panel to
    decide whether it should hear the appeal in light of the fact that it is moot.

[7]

Amicus
 first position is that the court should not hear the
    appeal because, in light of Rutiglianos retirement after leave to appeal was
    granted, it is moot since no hearing under the PSA can proceed.

[8]

In order to respond to this submission, it is necessary to follow the
    two-step analysis set out by Sopinka J. in
Borowski v. Canada (Attorney
    General)
, [1989] 1 S.C.R. 342, at para. 16:

First, it is necessary to determine whether the required
    tangible and concrete dispute has disappeared and the issues have become
    academic. Second, if the response to the first question is affirmative, it is
    necessary to decide if the court should exercise its discretion to decide the
    case.

[9]

In this appeal, the first question is easy to answer. Rutigliano is
    retired. The PSA proceedings against him cannot proceed. The substratum of his
    appeal has disappeared: see
Borowski
, at para. 26.

[10]

On
    the second question, we decline to exercise our discretion to hear the appeal.
    Rutigliano has been retired for more than a year. The alleged events giving
    rise to the disciplinary hearing involving him took place almost a decade ago,
    on October 17, 2002. Moreover, we note that at one point in the proceedings,
    the prosecutor agreed that a new Adjudicator should be appointed in light of
    Rutiglianos concern that there might be a reasonable apprehension that the
    designated Adjudicator might be biased.

[11]

Further,
    the appellant submits that the Divisional Courts decision changes the law
    relating to the reasonable apprehension of bias of adjudicators. We do not
    think that the Divisional Courts decision alters the well-known test in this domain.

[12]

Finally,
    the Commissioner contends that the issue posed by this appeal is important for
PSA
prosecutions and, potentially, in other contexts as well, including for judges
    in criminal courts in small jurisdictions.

[13]

We
    disagree.  The focus of the Divisional Courts decision  a brief oral decision
     was highly fact-specific.  There is nothing of a jurisprudential nature in
    the decision that would apply to judges presiding in small jurisdications.

[14]

In
Tamil Co-operative Homes Inc. v. Arulappah
, (2000), 49 O.R. (3d) 566 (C.A.),
    at para. 26, Doherty J.A. stated:

A review of the cases in which the Supreme Court of Canada has
    heard moot appeals demonstrates that there was a strong public interest in the
    resolution of the issues raised in those cases. The issues involved questions
    of broad social and constitutional importance.

[15]

The
    discrete discipline complaint against a retired OPP officer does not come
    within this description.

[16]

The
    appeal is dismissed as moot.  No order as to costs.

D.
    OConnor A.C.J.O.

J.C. MacPherson J.A.

Paul Rouleau J.A.


