



COURT OF APPEAL FOR ONTARIO

CITATION: Canadian Broadcasting Corporation
    v. Ferrier, 2019 ONCA 1025

DATE: 20191227

DOCKET: C66995 & C66998

Strathy C.J.O., Doherty and
    Sharpe JJ.A.

BETWEEN

Canadian Broadcasting
    Corporation

Applicant
(Appellant in Appeal)

and

Lee Ferrier, Q.C., Exercising
    powers and duties of the Thunder
Bay Police Services Board,
the Independent Police Review
Director, the First Nation Public Complainants, the Chief of
Police of the Thunder Bay Police Service, and the Respondent
Officers

Respondents
(Respondents in Appeal except the First Nation Public Complainants)

Ryder L. Gilliland
    and Agatha Wong, for the appellant Canadian Broadcasting Corporation

Julian N. Falconer and Mary (Molly)
    Churchill, for the appellants, the First Nation Public Complainants

Joanne E. Mulcahy, for the Respondent
    Officers

Holly Walbourne, for the respondent the
    Chief of Police of the Thunder Bay Police Service

Jean C.H. Iu and Pamela Stephenson
    Welch, for the respondent the Independent Police Review Director

David Migicovsky, for the respondent
    Lee Ferrier, Q.C., exercising powers and duties of the Thunder Bay Police
    Services Board

Daniel Guttman, for the intervener the
    Attorney General (Ontario)

Heard: October 31, 2019

On appeal from the judgment of the
    Divisional Court (Bonnie R. Warkentin R.S.J., Catherine D. Aitken, and Gregory
    M. Mulligan JJ.) dated January 7, 2019, with reasons reported at 2019 ONSC 34; 53
    Admin. L.R. (6th) 236.

Sharpe J.A.:

[1]

This appeal raises an important issue regarding
    the openness of police board hearings. The case involves the tragic death of an
    Indigenous man and allegations that the members of the Thunder Bay Police
    Service (the TBPS) were guilty of misconduct in relation to their
    investigation of his death. Within hours of the discovery of the body, they
    concluded that the death was not suspicious, and they failed to conduct any
    further investigation. The complaint that they were guilty of misconduct forms
    part of a much larger pattern of concern regarding the conduct of the TBPS in
    relation to the Indigenous community.

[2]

Because it took longer than six months for the
    Ontario Independent Police Review Director (the OIPRD) to report that there were
    reasonable grounds to believe that the officers were guilty of misconduct, it
    was necessary to ask the TBPS Board for an extension before a disciplinary
    hearing could be commenced.

[3]

The
Police Services
    Act
, R.S.O. 1990, c. P.15, provides that subject to
    certain exceptions, police services board hearings are presumptively open to
    the public. The decision maker, a retired judge appointed to make the decision
    the TBPS Board would ordinary make, entertained submissions and ordered that
    hearing would be closed.

[4]

The Canadian Broadcasting Corporation (the CBC)
    and the Complainants appeal the order of the Divisional Court refusing to
    interfere with the decision, arguing that both the Divisional Court and the decision
    maker failed to pay adequate attention to the s. 2(b)
Charter

right to freedom of expression by failing to require an open
    hearing.

[5]

For the following reasons, I would allow the
    appeal, set aside the judgment of the Divisional Court, quash the decision ordering
    a closed hearing and remit the matter for reconsideration in the light of these
    reasons.

A.

BACKGROUND

[6]

The body of Stacy DeBungee, an Indigenous man,
    was discovered in the McIntyre River in Thunder Bay on October 19, 2015. Within
    hours, the TBPS advised that the death was not suspicious. The two Complainants,
    Brad DeBungee, Stacys brother, and Chief Jim Leonard, Rainy River First Nations,
    asked the OIPRD to investigate allegations of misconduct against the officers
    who had conducted the investigation and to undertake a systemic review of the
    relationship between First Nations peoples and the TBPS.

[7]

On April 22, 2016, the OIPRD decided to
    undertake an investigation into the handling of the DeBungee death. Under the
Police Services Act
,
this is referred to as the day that the complaint was retained by
    the OIPRD. On November 3, 2016, the OIPRD announced terms of reference for a
    systemic review into the TBPS policing of First Nations peoples. The OIPRD
    report issued on February 15, 2018 found that there was sufficient evidence to
    believe, on reasonable grounds, that the officers had committed misconduct in
    their investigation of Stacy DeBungees death.

[8]

Because more than six months had elapsed from
    the date the complaint was retained, no notice of hearing to consider the
    complaint and disciplinary action could be served unless the TBPS granted an
    extension on the ground that the delay in serving the notice was reasonable:
Police Services Act
, at s. 83(17). The
    OIPRD directed the Chief of the TBPS to bring an extension application to the
    TBPS Board.

[9]

On account of the ongoing OIPRD systemic review
    of the TBPSs relationship with the lndigenous community, the Board was
    concerned about potential bias allegations. Accordingly, it sought the
    appointment of a disinterested person under the
Public
    Officers Act
, R.S.O. 1990, c.P.45, s. 16, to hear
    the extension application in its place. The Superior Court appointed a retired
    judge, the Honourable Lee Ferrier, Q.C., to act as the substitute decision
    maker to consider and exercise the Boards powers in relation to the extension.

[10]

The parties at the extension application hearing
    included the Chief of Police, the OIPRD, the officers and the Complainants. The
    Complainants had standing to make and receive submissions.

[11]

The
Police Services
    Act
, at s. 35(3), provides that police board
    meetings and hearings are presumptively open:

Meetings and
    hearings conducted by the board shall be open to the public, subject to
    subsection (4), and notice of them shall be published in the manner that the
    board determines.

[12]

Section 35(4) allows the board to hold a closed
    meeting and defines the circumstances when that may be done:

(4) The board may exclude the public from all
    or part of a meeting or hearing if it is of the opinion that,

(a)     matters involving public security may
    be disclosed and, having regard to the circumstances, the desirability of
    avoiding their disclosure in the public interest outweighs the desirability of
    adhering to the principle that proceedings be open to the public; or

(b)     intimate
    financial or personal matters or other matters may be disclosed of such a
    nature, having regard to the circumstances, that the desirability of avoiding
    their disclosure in the interest of any person affected or in the public
    interest outweighs the desirability of adhering to the principle that
    proceedings be open to the public.

[13]

The decision maker sought the views of the
    parties as to whether the hearing of the extension application should be
in camera
. Counsel for the Chief of
    Police, the OIPRD and the officers asked that the hearing be closed. Counsel
    for the Complainants advised that his clients sought an open hearing. The decision
    maker asked for written submissions. Counsel for the Complainants notified the
    CBC, and the CBC advised the decision maker of its interest in being heard on
    the
in camera
issue. The decision maker allowed the CBC to make
    written submissions.

[14]

The CBC and the Complainants submitted that an
    open hearing was required by s. 2(b) of the
Charter
:

Everyone has the following fundamental
    freedoms:

(b) freedom of
    thought, belief, opinion and expression including freedom of the press and
    other media of communication.

[15]

The CBC and the Complainants argued that
principles
    enunciated in
Dagenais v. Canadian Broadcasting Corp.
, [1994] 3 S.C.R.
    835 and
R. v. Mentuck,
2001 SCC 76, [2001] 3 S.C.R. 442, (the 
Dagenais/Mentuck

    test) applied. This test applies to discretionary decisions limiting freedom of
    the press in relation to court proceedings. As restated in
Toronto Star
    Newspapers Ltd. v. Ontario
,
2005 SCC 41, [2005] 2 S.C.R. 188, at para. 26, and explained by this
    court in
R. v.

Canadian Broadcasting Corporation,
2010 ONCA
    726, 102 O.R. (3d) 673, at para. 20, the
Dagenais/Mentuck
principle,
    is as follows:

Restrictions on the open court principle and
    freedom of the press in relation to judicial proceedings can only be ordered
    where the party seeking such a restriction establishes through convincing
    evidence that

(a) such an order is necessary in order to
    prevent a serious risk to the proper administration of justice because
    reasonably alternative measures will not prevent the risk; and

(b) the salutary
    effects of the publication ban outweigh the deleterious effects on the rights
    and interests of the parties and the public, including the effects on the right
    to free expression, the right of the accused to a fair and public trial, and
    the efficacy of the administration of justice.

B.

DECISION ORDERING A CLOSED HEARING

[16]

The decision maker cited a Divisional Court
    decision for the proposition that the consideration of a request for an
    extension under s. 83(17) of the
Police Services
    Act

is
    administrative in nature and that procedural fairness and natural justice do
    not always require a police services board to hold a public hearing. He also
    noted that the
Statutory Powers Procedure Act
, R.S.O. 1990, c. S.22, does not apply to a Board meeting to
    consider an extension. The decision maker then cited a series of decisions and Board
    orders to support the proposition that employment and disciplinary matters
    qualify as intimate  personal matters under s. 35(4)(b) of the
Police Services Act
,
noting that investigations of conduct undertaken by the OIPRD are
    confidential pursuant to s. 95. The decision maker found that if the
    investigative report completed by the OIPRD in this case was made public, it
    could taint the witnesses and result in negative stigma for the officers
    involved. He suggested that as the extension application hearing precedes the
    commencement of proceedings, it was akin to the swearing of an information or a
pre-enquete
in criminal proceedings, both of which are held
in camera
.

[17]

For two reasons, the decision maker rejected the
    submission that the
Dagenais/Mentuck
test applies. First, the proceeding to consider the reasonableness
    of the delay was administrative as opposed to judicial or quasi-judicial and
    the
Dagenais/Mentuck
test applies only to judicial or quasi-judicial proceedings. Second, s. 35(4) lays
    out a test for determining whether to conduct a public or closed proceeding and
Dagenais/Mentuck
did
    not supersede the prescribed statutory test. Finally, the decision maker
    concluded that, although the investigative report had been made public by the Complainants,
    the hearing should be held
in camera
in order to ensure the integrity of the proceedings.

C.

DIVISIONAL COURT: INTERIM INJUNCTION DECISION
    (2018 ONSC 5872)

[18]

The CBC sought an interim injunction to enjoin
    the decision maker from proceeding with the
in camera
hearing pending consideration of the CBCs application to the
    Divisional Court for judicial review.

[19]

The motion judge, who is based in Thunder Bay,
    granted the interim injunction. She found that there was a serious question to
    be tried as it is important for the court to consider the extent to which the
    public can expect openness in administrative decision-making (at para. 48).
    The question of whether the
Dagenais/Mentuck
test should apply in the context was an important issue that
    required the courts attention (at para. 43). The motion judge found that given
    the context in which the case arose  allegations of racist policing practices
    relating to Indigenous peoples  the need for transparency in the complaint
    procedure was heightened (at paras. 48-49). She also found that as the OIPRD
    report had already been made public, there was no evidence that intimate
    financial or personal matters may be disclosed on an extension application (at
    para. 40).

[20]

The motion judge found that the CBC and the
    First Nations community would suffer irreparable harm if a stay were not
    granted because, regardless of whether an extension is granted or not, an
in camera
hearing would deny the public
    their right to understand the process (at para. 60).

[21]

Finally, the motion judge held that the balance
    of convenience favours transparency in the circumstances of this case where
    racist policing is alleged (at para. 66).

D.

DIVISIONAL COURT: JUDICIAL REVIEW (2019 ONSC 34;
    53 Admin. L.R. (6th) 236)

[22]

The Divisional Court identified the sole issue
    arising on the CBCs application for judicial review as whether the decision
    maker erred by not applying the
Dagenais/Mentuck
test to the question of whether the extension application should be
    heard
in camera
(at
    para. 23). The Complainants, the officers and the Chief of Police were added as
    respondents as they had taken part in the proceedings before the decision maker.
    As an interested party, the OIPRD was also added as a respondent

[23]

The court took note of the social context
    surrounding the dispute; namely, that there is a very high level of distrust
    between the First Nations community and the TBPS, with many Indigenous peoples
    in the Thunder Bay area believing that the policing practices relating to them
    are racist (at para. 25). However, the court held that, despite this context
    and the fact that the community has a strong interest in the circumstances
    surrounding the death of Stacy DeBungee and in the TBPSs investigation of his
    death, it is important to not lose sight of the reality that the extension
    application is being determined in the context of possible disciplinary
    proceedings against employees (at paras. 29-33). The level of public concern
    should not change the nature of the decision-making process or the nature of
    the role being undertaken by [the decision maker] (at para. 33).

[24]

The court found that the applicable standard of
    review was reasonableness. The case law established that the function of the
    Board under s. 83(17) of the
Police Services Act
is not judicial or quasi-judicial but rather administrative and
    procedural in nature. The case law also established that the standard of review
    for the Boards decision on an extension application is reasonableness. The
    court found that the reasonableness standard was supported by the Supreme Court
    of Canadas decision in
Doré v. Barreau du Québec,
2012 SCC 12, [2012] 1 S.C.R. 395.

[25]

The Divisional Court held that neither the open
    court principle nor the
Dagenais/Mentuck
test applied because the extension hearing was not a judicial or quasi-judicial
    proceeding. The
Dagenais/Mentuck
test was also excluded as the
Police
    Services Act
, ss. 35(3) and (4) set out a specific
    statutory test for how to address the question of whether a hearing is to be
    open to the public. As the statute itself laid out the balancing act to be
    undertaken and there is no ambiguity in the legislative provisions, there was
    no need for the
Dagenais/Mentuck
test to apply (at paras. 52-53).

[26]

The Divisional Court concluded that the decision
    was both reasonable and correct (at para. 60). He was transparent in his
    decision-making process, his reasons were clear and intelligible, he adequately
    justified his decision, and he considered the important public interest at
    play.

E.

ISSUES

[27]

The following issues arise on the Complainants
    and the CBCs appeal to this court:

1.

What is the appropriate standard of review?

2.

Does the decision ordering a closed hearing satisfy
    the applicable standard of review?

3.

Should the Complainants fresh evidence motion
    be granted?

4.

If the appeal is allowed, what is the
    appropriate remedy?

F.

ANALYSIS

(1)

What is the appropriate standard of review?

[28]

As an appellate court hearing an appeal from a
    judgment refusing judicial review, the question for us to decide is whether
    the court below identified the appropriate standard of review and applied it
    correctly:
Canada Revenue Agency v. Telfer
,
2009 FCA 23, 386 N.R. 212, at para.
    18.

[29]

This appeal had been argued and a complete draft
    of these reasons had been written before the Supreme Court released its
    decision in
Canada (Minister of Citizenship and Immigration) v. Vavilov
,
    2019 SCC 65 modifying standard of review analysis. As I will explain, it is my
    view that
Vavilov
confirms that the appropriate standard of review is
    correctness. Moreover, even if the appropriate standard of review were
    reasonableness,
Vavilov
confirms that the decision to hold a closed
    hearing was unreasonable.

[30]

The decision to hold a closed hearing, as
    explained by the Divisional Court, would ordinarily attract the deferential
    reasonableness standard of review mandated by
Dunsmuir
    v. New Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190.

[31]

I note that in oral argument, the Complainants
    withdrew the submission in their factum that the standard of review was altered
    by the fact that the decision was that of a substitute decision maker without the
    expertise of a police services board. In any event,
Vavilov
, at para. 30,
    holds that expertise is no longer a factor to be considered when determining
    the appropriate standard of review.

[32]

In my respectful view, the Divisional Court
    failed to recognize that the attack on the decision focussed on the refusal to
    apply the
Dagenais/Mentuck
test when concluding that the extension hearing should be closed.
    The challenged decision was not, as the Divisional Court suggested, a decision
    under s. 83(17) whether to grant an extension. Rather, it was a decision under
    s. 35(4) whether to hold a closed hearing. The appellants argued that that
    decision could only be made if the
Charter

rights to freedom of expression and
    freedom of the press were considered. They argued that the decision maker was
    wrong to conclude that the exercise of his discretion was governed solely by
    the terms of s. 35(4) and to refuse to take those
Charter

rights into accounts.

[33]

I agree with the appellants submission that the
    decision that the
Dagenais/Mentuck
test does not apply is reviewable on a correctness standard of
    review.

[34]

If the
Charter

rights are considered by the
    administrative decision maker, the standard of reasonableness will ordinarily
    apply. In
Doré
, the
    Disciplinary Council of the Barreau du Québec considered and rejected the
    argument that the
Code of ethics of advocates

requirement that advocates conduct
    themselves with objectivity, moderation and dignity infringed the s. 2(b)
Charter
right to freedom of expression. Similarly, in
Episcopal
    Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry,

2007 ONCA 20, 278 D.L.R. (4th) 550, the
    commissioner of inquiry considered the
Dagenais/Mentuck
test and rejected the argument that he should issue a publication ban
    regarding an alleged wrong-doer. In both cases, a reasonableness standard of
    review was applied when the decisions were challenged.

[35]

On the other hand,
the
    refusal or failure to consider an applicable
Charter

right should, in my opinion, attract a
    correctness standard of review. As the Supreme Court explained in
Dunsmuir
, at para. 60, citing
Toronto (City) v. C.U.P.E.,
Local 79, 2003
    SCC 63,

[2003] 3 S.C.R. 77,
at para. 62: where the question at issue is one of general law
    that is both of central importance to the legal system as a whole and outside
    the adjudicators specialized area of expertise  uniform and consistent
    answers are required. See also
Alberta (Information
    and Privacy Commissioner) v. University of Calgary,
2016 SCC 53, [2016] 2 S.C.R. 555, at paras. 20-21. This is confirmed
    by
Vavilov
, at para. 17: 
[T]he presumption of
    reasonableness review will be rebuttedwhere the rule of law requires that the
    standard of correctness be applied. This will be the case for certain
    categories of questions, namely constitutional questions, general questions of
    law of central importance to the legal system as a whole and questions related
    to the jurisdictional boundaries between two or more administrative bodies.

[36]

The s. 2(b)
Charter
right to freedom of expression and freedom of the press relied upon
    by the appellants is both a matter of central importance to the legal system and
    a constitutional question. As confirmed by
Vavilov
, at para. 53, the
    application of the correctness standard to 
constitutional
    questions, general questions of law of central importance to the legal system
    as a wholerespects the unique role of the judiciary in interpreting the
    Constitution and ensures that courts are able to provide the last word on
    questions for which the rule of law requires consistency and for which a final
    and determinate answer is necessary.

[37]

The issue before the decision maker was
whether
the
Dagenais/Mentuck
test had a bearing on
    the discretionary decision he had to make. That is not the same as the issue presented
    in
Doré

and
Episcopal
of
how
the s. 2(b)
Charter
right impacted or
    affected the discretionary decision he had to make
.
The decision maker
    did not reach the point of factoring the
Dagenais/Mentuck
test into his discretionary decision because he decided that it did
    not apply. A reasonableness standard assumes a range of possible outcomes all
    of which are defensible in law: see
Vavilov
, at para. 83. That
    standard is inappropriate here. The
Dagenais/Mentuck
test either applied or it did not.

[38]

I refer here to a passage in
Episcopal
which, in my view, has a direct bearing on this issue. In that case,
    the inquiry commissioner applied the
Dagenais/Mentuck
test when declining to order an
in camera

hearing. This court held that his decision
    was reviewable on a reasonableness standard because he did consider the impact
    of the
Charter
right on the
    decision he had to make. However, we noted, at para. 36, that in
Dagenais
itself, the judge who made the challenged
    decision did not have available the new test enunciated when the case went to
    the Supreme Court. That meant that his failure to arrive at a result that
    could be supported under the new test  amount[ed] to an error of law,
    reviewable on a standard of correctness. The same applies here. As I will
    explain, the decision maker did not have the benefit the decision of this court
    in
Langenfeld v. Toronto Police Services Board
,
2019 ONCA 716, 437 D.L.R. (4th) 614, an
    authority that bears directly upon the discretionary decision he was asked to
    make.

(2)

Does the decision ordering a closed hearing satisfy
    the applicable standard of review?

[39]

The appellants submit that the decision maker
    erred by concluding that the
Dagenais/Mentuck
test did not apply to the s. 35(4) decision whether to hold an open
    or closed extension hearing. They submit that
Dagenais/Mentuck
establishes a general standard that applies to all judicial,
    quasi-judicial and administrative decisions, and that it is not ousted by
    statutory provisions such as s. 35(4) that prescribe a specific test to
    determine whether a meeting should be open or closed. They urge us to take a
    contextual approach and to recognize the paramount importance of openness in
    the circumstances of this case. The issues surrounding allegations of racism
    and mistreatment on the part of the TBPS towards the Indigenous community have
    attracted wide attention and the appellants assert that it is of utmost
    importance that the s. 83(17) extension hearing be open.

[40]

The appellants also rely heavily on the recent
    decision of this court in
Langenfeld
, delivered after the decision ordering a closed hearing was made and
    after the Divisional Court dismissed the application for judicial review.

[41]

The respondents submit that
Dagenais/Mentuck
test only applies to
    judicial or quasi-judicial proceedings and that a s. 83(17) extension hearing
    is administrative in nature. Supported by the intervener, the Attorney General
    of Ontario, they also submit that as the appellants did not challenge the validity
    of s. 35(4), they cannot use the
Dagenais/Mentuck
test to, in effect, re-write that provision to alter the test applicable
    to a s. 83(17) extension hearing.

[42]

I turn first to the question of whether the
Dagenais/Mentuck
test applies to a s. 83(17)
    hearing.

[43]

Dagenais

and
Mentuck

hold that the
Charters

s. 2(b) guarantee of freedom of expression and freedom of the press
    fortifies the common law open court principle. [T]he presumption that courts
    should be open and reporting of their proceedings should be uncensored is so
    strong and so highly valued in our society. Closed proceedings can only be
    ordered upon a convincing evidentiary basis that such an order is necessary in
    order to prevent a serious risk to the proper administration of justice:
Mentuck
, at paras. 39 and 32.

[44]

The respondents rely on a strong line of
    authority for the proposition that a s. 83(17) extension hearing is an
    administrative rather than judicial or quasi-judicial matter. They point out
    that while the procedural protections of the
Statutory
    Powers Procedure Act
apply when a police services
    board is conducting a disciplinary hearing, the Act is explicitly excluded when
    a board considers a request for s. 87(17) extension:
Police Services Act
, at s. 37.

[45]

In
Forestall v.
    Toronto Police Services Board

(2007), 228 O.A.C. 202 (Div. Ct.), the Divisional Court held, at
    para. 44, that as an extension hearing does not determine the merits of
    allegations or impose discipline, the decision is administrative in nature,
    purely procedural, and, at para. 53, that while some degree of procedural
    fairness is required, the Board is not required to hold a judicial-type of hearing
    and that only minimal rights of procedural fairness, including notice,
    disclosure, and an opportunity to respond, apply. Similarly, in
Ackerman v. Ontario Provincial Police Service
, 2010 ONSC 910, 259 O.A.C. 163 (Div. Ct.), the court held that a
    decision to allow an extension is clearly interlocutory as all that has been
    decided is that it is reasonable to delay service of the notice of hearing (at
    para. 20). There has been no determination of the officers rights. The Board
    is exercising a procedural, administrative function in extending the time for
    service of the notice (at para. 21). In its reasons, the Divisional Court
    cited a number of other decisions to the same effect:
Coombs
    v. Toronto (Metropolitan) Police Services Board,
[1997] O.J. No. 5260 (Div. Ct.);
Payne v. Peel
    (Regional Municipality) Police Services Board
(2003),
    168 O.A.C. 69 (Div. Ct.);
Figueiras v. (York) Police
    Services Board,
2013 ONSC 7419, 317 O.A.C. 179 (Div.
    Ct.).

[46]

The appellants do not suggest that these cases
    were wrongly decided or seriously challenge the characterization of a s. 83(17)
    extension hearing as being administrative and procedural in nature. However,
    the appellants urge us to hold that
Dagenais/Mentuck
applies to the meetings of all public institutions and therefore,
    even if the s. 83(17) extension hearing is characterized as administrative in
    nature, the TBPS Board cannot escape its reach.

[47]

In my view, to accept that submission would
    represent a significant expansion of the reach of the
Dagenais/Mentuck
test beyond judicial
    and quasi-judicial decisions, in a manner not supported by authority.

[48]

The
Dagenais/Mentuck
test evolved in relation to discretionary judicial decisions in
    criminal proceedings. As the Supreme Court stated in
Toronto Star

Newspapers
    Ltd. v. Ontario
, at para. 7: the
Dagenais/Mentuck
test applies 
to
all
discretionary
court
    orders
that limit freedom of expression and freedom
    of the press in
relation to legal
    proceedings
 (italics in original, underlining
    added). The test was extended to civil proceedings in
Sierra
    Club of Canada v. Canada (Minister of Finance)
, 2002
    SCC 41, [2002] 2 S.C.R. 522, but civil proceedings are judicial in nature.

[49]

The CBC relies on the application of the
Dagenais/Mentuck
test in relation to a commission of inquiry:
Episcopal
.
However, in
Episcopal
, the applicability of the
Dagenais/Mentuck
test was assumed by the
    inquiry commissioner and not challenged in this court. That is hardly surprising.
    The public hearing and fact-finding phase of a commission of inquiry may well
    have an adverse effect upon a witness or a party to the inquiry and although
    the findings of the commissioner do not result on penal or civil liability,
    procedural fairness is essential:
Canada
    (Attorney General) v. Canada (Commission of Inquiry on the Blood System
), [1997] 3 S.C.R. 440, at para. 55. The applicability of the
Dagenais/Mentuck
test in
Episcopal
also fits with case law finding
    commissions of inquiry to be quasi-judicial proceedings:
British Columbia (Attorney General) v. British Columbia (Information
    and Privacy Commissioner
, 2004 BCSC 1597, 34 B.C.L.R.
    (4th) 298, at paras. 48-72.

[50]

The appellants also rely upon the application of
Dagenais/Mentuck

by
    some administrative tribunals and professional discipline bodies. In my view,
    those cases are also distinguishable as they deal with proceedings classified
    as quasi-judicial in nature. For example,
Lifford Wine
    Agencies Ltd. v. Ontario (Alcohol & Gaming Commission)
(2003), 180 O.A.C. 151 (Div. Ct.), dealt with quasi-judicial a
    proceeding to which the
Statutory Powers Procedure Act
applied. As I have noted, that Act does not apply to police services
    board meetings to consider s. 83(17) extension requests.
Southam Inc. v. Canada (Attorney General)
(1997)
,
36 O.R. (3d) 721, and
Canadian Broadcasting Corp. v. Summerside (City of)
(1999)
,
170 D.L.R. (4th) 731 (P.E.I. Sup. Ct.), dealt with police discipline
    proceedings at the stage of the actual hearing which, again, brings them into
    the quasi-judicial category.

[51]

The appellants also rely on
Toronto Star v. AG Ontario,
2018 ONSC 2586, 421
    D.L.R. (4th) 687, striking down as an infringement of s. 2(b) the application
    of the
Freedom of Information and Protection of
    Privacy Act
,
R.S.O.
    1990, c. F.31 (FIPPA) to the adjudicative records of thirteen administrative
    tribunals. Those tribunals were subject to the
Statutory
    Powers Procedure Act
and exercised quasi-judicial
    powers. The adjudicative records included: documents by which proceedings were
    commenced, notices of hearing, interlocutory orders made by the tribunal,
    documentary evidence filed with the tribunal, transcripts of evidence and
    reasons for decision. The court held that the open court principle and the
    right to freedom of expression guaranteed by s. 2(b) applied to these
    adjudicative records and that the restrictions imposed by FIPPA on access could
    not be justified as a reasonable limit under s. 1. While the case represents a
    strong statement on the need for openness in proceedings before quasi-judicial
    administrative tribunals, it does not apply here for the same reason I have
    distinguished the cases discussed above: it deals with quasi-judicial
    proceedings and the case before us does not.

[52]

I conclude that the decision maker did not err
    when he found that the
Dagenais/Mentuck
test did not apply to the decision he had to make under s. 35(4).

[53]

However, that does not end the matter. The
Dagenais/Mentuck
test does not
    exhaustively define the application of the s. 2(b) right to freedom of
    expression and freedom of the press in the context of this case. This courts
    decision in
Langenfeld

deals directly with the issue we must
    decide, namely, the application of 2(b) to administrative meetings of police
    services boards.

[54]

Regrettably, neither the decision maker nor the
    Divisional Court had the benefit of the
Langenfeld

decision.

[55]

In
Langenfeld
,
this court allowed an appeal from the
    decision of the Superior Court (2018 ONSC 3447; 414 C.R.R. (2d) 85), striking
    down a security protocol instituted by the Chief of Police requiring any person
    entering Toronto Police Headquarters to pass through a metal detector and
    wanding process designed to uncover dangerous items and weapons. The protocol
    was challenged by an individual who regularly attended police board meetings
    and who asserted that the protocol infringed his s. 2(b) right to freedom of
    expression.

[56]

While the court allowed the appeal on the ground
    that the security protocol was a reasonable limit on the s. 2(b) right to
    freedom of expression, at paras. 18-21, it agreed with and adopted Copeland
    J.s conclusion the right to attend the police services board meeting was
    protected by s. 2(b).

[57]

In the portion of her reasons adopted by this
    court, Copeland J. stated, at paras. 50-52, as follows. The public meeting
    requirement of s. 35 of the
Police Services Act

fosters the objective of public confidence in
    decision making through transparency and accessibility to the public. The
    rationale of openness to foster public confidence is similar to the rationale
    for the open courts principle (it differs only in that the open courts
    principle has a further basis of ensuring that litigants are treated fairly).
    Copeland J. identified the two pillars for the proposition that the right to
    attend court proceedings is protected expression. First, public confidence in
    the courts, an important institution of democratic government, is fostered by
    transparency and accessibility, and second, freedom of expression protects
    listeners as well as speakers, particularly in the context of members of the
    public receiving information about the activities of public institutions. She
    then applied those principles to the right to attend public meetings of police
    services boards:

The
Police
    Services Act
makes public meetings the default for police services boards
    in order to foster public confidence in the decisions of the boards, by way of
    transparency and accessibility. Police services boards perform an
    important democratic function. Thus, I find that the right of members of
    the public to attend public meetings of police services boards is protected by
    s. 2(b) of the
Charter
.

[58]

If Mr. Langenfeld had a s. 2(b)
Charter

right to attend a regular and purely administrative meeting of the
    Toronto Police Services Board, it is difficult to see why, subject to the
    exclusions set out in s. 35(4), the CBC does not enjoy the same right to attend
    the s. 83(17) hearing.

[59]

On the state of the law as it now stands, the
Dagenais/Mentuck
test does not apply to
    this administrative hearing. However, the presumption of an open hearing under
    s. 35(3) of the
Police Services Act
and the s. 2(b)
Charter
right recognized in
Langenfeld
do apply.

[60]

While I reach that conclusion on a correctness standard, I add here
    that even if a reasonableness standard of review applies, I fail to see how a
    decision resulting from an unexplained refusal or failure to consider an
    applicable
Charter
right
    could be considered reasonable.
This courts
    application of s. 2(b) in
Langenfeld
means that the decision ordering
    a closed hearing, through no fault of the decision maker, failed to consider an
    applicable right protected by the
Charter
. That decision cannot
    survive scrutiny under the
Vavilov
test for reasonableness. The
    reasonableness standard requires 
an internally coherent
    and rational chain of analysis and that is justified in relation to the facts
    and law that constrain the decision maker;
Vavilov
, at para. 85
. A decision that fails to
    consider an applicable
Charter
right cannot satisfy that standard or
    the principle that the exercise of public power must be justified,
    intelligible and transparent:
Vavilov
, at para. 95.

[61]

For convenience, I repeat here s. 35(4), the
    test the legislature has prescribed for determining when a police services
    board may conduct a closed hearing:

The board may exclude the public from all or
    part of a meeting or hearing if it is of the opinion that,

(a)     matters involving public security may
    be disclosed and, having regard to the circumstances, the desirability of
    avoiding their disclosure in the public interest outweighs the desirability of
    adhering to the principle that proceedings be open to the public; or

(b)     intimate
    financial or personal matters or other matters may be disclosed of such a
    nature, having regard to the circumstances, that the desirability of avoiding
    their disclosure in the interest of any person affected or in the public
    interest outweighs the desirability of adhering to the principle that
    proceedings be open to the public.

[62]

The question the decision maker had to decide
    was whether the desirability of avoiding disclosure or intimate financial or
    personal matters  outweighs the desirability of adhering to the principle that
    proceedings be open to the public. In my view, that statutory test and not the
Dagenais/Mentuck
test governed the exercise of his discretion.
    However, the s. 2(b) right recognized in
Langenfeld

has a direct bearing on the exercise
    of that discretion. Through no fault of his own, the decision maker did not
    consider
Langenfeld.
The principle that proceedings be open to the
    public, recognized by s. 35(4), is considerably fortified by the s. 2(b)
Charter

right recognized by
Langenfeld
in relation to police services board meetings.

[63]

Doré
, at para.
    56, explains that the administrative decision maker is to ask how the
Charter
value at issue will best be protected in view of the statutory objectives and
    that the core of this proportionality exercise will require the decision
    maker to balance the severity of the interference of the
Charter

protection with the statutory objectives. As
Doré
explains, at para. 57, this
    proportionality exercise calls for integrating the spirit of [the
Charter
s

s. 1 reasonable limits scrutiny] into
    judicial review.

[64]

As I will explain when discussing the issue of
    remedy, it will be for the decision maker to conduct that proportionality
    exercise. However, I propose to outline what seem to me to be some of the
    relevant considerations.

[65]

Section 35 reflects three relevant statutory
    objectives. The first objective is congruent with s. 2(b). Meetings of police services
    boards are presumptively open to the public. The second and third relevant
    statutory objectives are the protection of intimate financial or personal
    matters and the public interest in a fair and impartial hearing. Both factors
    require a proportional response, appropriately balancing the severity of
    interfering with the
Charter

right with the achievement of the
    statutory objectives.

[66]

For reasons I have explained, I do not think
    that the
Dagenais/Mentuck
test applies. On the other hand, the measuring of a proportional
    response in the context of an administrative hearing such as this is bound to
    take on a similar hue. As Morgan J. explained in
Toronto
    Star v. AG Ontario
, at para. 92: 
The judicial considerations of the
Dagenais/Mentuck
test have tended to arise in the course of criminal prosecutions,
    which raise unique factors that may not apply to the regulatory contexts of
    most administrative tribunals. He added, at para. 93: The particular
    institution and circumstances of the particular case may require the most
    stringent application of the
Dagenais/Mentuck
test or a modified and more relaxed version of the test. There is no
    one size fits all application of the openness principle.

[67]

The administrative decision maker should, as
    required by the
Dagenais/Mentuck
test, consider
reasonably alternative measures
    that could avoid the risk of impeding the statutory objective. Counsel for the decision
    maker argues that it was not open to the decision maker to consider as an
    alternate measure a limited publication ban that would preclude publication of
    the OIPRD report and the names of the officers in order to protect their
    interest and the public interest in a fair and impartial hearing. I disagree
    with that submission. Section 35(4) provides that 
[t]he
    board may exclude the public from all
or part of
a meeting
    or hearing (emphasis added). In my view, that language indicates that the Board
    is not required to make an all or nothing order and that where an order less
    restrictive than a total ban will achieve the relevant statutory objectives,
    such an order can and should be made. It was therefore open to the decision
    maker to make an order banning further publication of the OIPRD investigative
    report and/or the names of the Respondent Officers.

[68]

Consideration of the s. 35(4) test in the light
    of s. 2(b) and freedom of the press is a highly contextual exercise and framing
    an appropriate order will very much depend upon the circumstances of each case.
    The decision maker identified the factors favouring an
in camera
hearing. Here are the factors that, in my respectful view, he should consider
    as favouring an open hearing.

[69]

The first contextual feature of the present case
    is that the extension hearing forms one small part of a much larger
    controversy. As the interim injunction judge noted, at paras. 14-15: the
    question of whether there has been systemic racism in policing Indigenous
    cases in Thunder Bay was a matter of keen interest to members of the Thunder
    Bay community, including or perhaps especially its Indigenous citizens. At
    para. 48 of her reasons she observed: Because of the complaint underlying this
    process  the policing practices related to Indigenous citizens in Thunder Bay
    are racist  it is
even
more critical
that every step in the
    complaint procedure be dealt with transparently (emphasis in original). Similarly,
    the Divisional Court observed, at para. 25, the context is important and 
there is a very high level of distrust between the First Nations
    community and the TBPS, with many Indigenous peoples in the Thunder Bay area
    believing that the policing practices relating to them are racist.
The racial tension between the Indigenous community and the TBPS,
    the distrust of the Indigenous community towards the TBPS and the current state
    of administration of criminal justice all point strongly to the need for
    openness and transparency.

[70]

The second contextual factor is that, as the decision
    maker noted, rightly or wrongly, the OIPRD investigative report has already
    been made public. The issues surrounding Stacy DeBungees death and the details
    of the OIPRD report on the TBPS investigation have attracted significant media
    interest and were well-known in the Thunder Bay community and beyond.

[71]

The third contextual feature of this case is
    that the TBPS Board and the decision maker have structured the consideration of
    the request for a s. 83(17) extension as if it were a quasi-judicial decision.
    The Board appropriately applied quasi-judicial considerations when it decided
    that there could be a reasonable apprehension of bias if it were to consider
    the extension request in the ordinary course. Rather than appoint someone with
    a background in police services administration as a substitute decision maker,
    the Superior Court appointed a retired judge. The decision maker quite properly
    treated the issue of whether to order a closed hearing as requiring adversarial
    submissions for the interested parties, considered those submissions and then handed
    down a reasoned, judgment-like decision. I do not retreat from the
    characterization of the extension request as an administrative act. However, it
    seems to me that these steps were taken to lend a dimension of quasi-judicial
    legitimacy to the decision. It is arguable that the price to be paid for that
    added element of legitimacy is the kind of openness that quasi-judicial
    proceedings ordinarily attract.

[72]

The fourth contextual factor to consider is the
    interest of transparency in relation to police discipline. The purpose of the
Police Services Act
has been judicially
    described as being to enhance public confidence in policing by ensuring a more
    transparent and independent process for dealing with complaints against the
    police:
Figueiras
,
at para. 41.
Figueiras
, at para. 62, also described the statutory framework as being
    designed to increase the transparency of and public accountability for the way
    in which the conduct of the police is dealt with. In his 2005 Report On The Police
    Complaints System In Ontario, (Toronto: Ministry of the Attorney General of
    Ontario, 2005), the Honourable Patrick J. LeSage emphasized the importance of
    transparency. He suggested, for example, that if the review of a decision not
    to order a hearing is transparent, there will be greater understanding and
    acceptance of the system (at p. 75).

(3)

Should the Complainants fresh evidence motion be
    granted?

[73]

The Complainants move for the introduction of
    fresh evidence. First, they ask the court to admit two reports issued after the
    matter was heard by the Divisional Court: the OIPRDs systemic review Broken
    Trust: Indigenous People and the Thunder Bay Police Service; and Senator
    Murray Sinclairs Ontario Civilian Police Commission report Thunder Bay Police
    Services Board Investigation: Final Report. Second, they ask us to consider a
    revised standard form letter sent by the OIPRD to the Complainants upon
    completion of an investigation. Third, they ask for the admission of two
    newspaper articles, the first reporting an incident of alleged police
    misconduct and the second reporting that the progress of the OIPRD and Sinclair
    reports.

[74]

I would not admit the fresh evidence as I
    believe it to be unnecessary for the resolution of this appeal. As I have
    pointed out, both the interim injunction judge and the Divisional Court were
    fully aware of the allegations of racism and the tension between the TBPS and
    the Indigenous community. While the reports explore those issues in
    considerable detail, I do not think we require that level of detail to decide
    this appeal.

[75]

The revised standard form letter and the
    newspaper articles have no relevance to the issues we must decide.

[76]

Accordingly, I would dismiss the fresh evidence
    motion.

(4)

If the appeal is allowed, what is the
    appropriate remedy?

[77]

This brings me to the issue of the appropriate
    remedy. Ordinarily, where a court grants judicial review and quashes a
    decision, the appropriate remedy is to remit the matter to the decision maker
    for reconsideration in the light of the courts decision:
Oakwood Development Ltd. v. St-François Xavier
,
[1985] 2 S.C.R. 164, at p. 176. There
    is an exception to that rule where remitting the matter would be pointless as
    there is only one possible outcome in view of the courts decision:
Giguère v. Chambre des notaires du Québec
,
2004 SCC 1, [2004] 1 S.C.R. 3, at
    para. 66;
Gehl v. Canada (Attorney General)
, 2017 ONCA 319, 138 O.R. (3d) 52, at para. 54;
Vavilov
, at
    para. 142.

[78]

The respondents and the decision maker submit
    that if we allow the appeal, the matter should be remitted to the decision
    maker. The Complainants submit that the reasons for an open hearing are so
    strong that we should simply make the order the decision maker should have
    made.

[79]

This appeal deals with a preliminary issue and
    the open hearing issue has further stalled the very slow pace of the OIPRD
    recommendation for disciplinary proceedings. In these circumstances, I am
    tempted do as the Complainants ask: see
Vavilov
, at para. 142, holding
    that urgency of providing a resolution to the dispute is a relevant factor to
    consider.

[80]

In the end, however, I am not persuaded that
    this is one of those exceptional cases where the court should put itself in the
    shoes of the decision maker. My view of the matter largely turns on the
Langenfeld
decision that was not
    available and therefore not considered by the decision maker.
Vavilov
holds, at para. 142, that a factor to consider on this issue is whether the
    administrative decision maker had a genuine opportunity to weigh in on the
    issue in question. The decision maker should be permitted to take another look
    at the matter with the benefit of
Langenfeld
. Accordingly, I would
    remit the matter to the decision maker for reconsideration in light of these
    reasons.

G.

DISPOSITION

[81]

For these reasons, I would allow the appeal from
    the Divisional Courts judgment and set aside its order dismissing the
    application for judicial review. I would quash the decision and remit the
    matter to him for reconsideration in light of these reasons.

[82]

No party seeks costs of the appeal.

Released: December 27, 2019

GRS

Robert
    J. Sharpe J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree Doherty J.A.


