



COURT OF APPEAL FOR ONTARIO

CITATION: Wall v. Office of the
    Independent Police Review Director, 2014

ONCA 884

DATE: 20141211

DOCKET: C58189

Feldman, Blair and Pepall JJ.A.

BETWEEN

Jason Wall

Respondent

and

Office of the Independent Police Review Director

Appellant

Heather Mackay, for the appellant

Clayton C. Ruby and Nader R. Hasan, for the respondent

Heard: September 12, 2014

On appeal from the order of the Divisional Court
    (Justices Anne M. Molloy, David Aston and Alison Harvison Young), dated June 6,
    2013, with reasons reported at 2013 ONSC 3312, 362 D.L.R. (4th) 687, allowing
    an appeal from a decision of the Office of the Independent Police Review
    Director, dated February 2, 2012.

Blair J.A.:

Background

[1]

On June 27, 2010, Jason Wall was walking along Yonge Street near Gerrard
    Street in the City of Toronto when he was arrested by two officers of the
    Toronto Police Services.  His apparent crime was that he was wearing a bandana around
    his neck during the tense days of the G20 Summit of world leaders held in
    Toronto.  He was released without charges the next day, after 28 hours in
    custody.

[2]

Like several hundred of the more than 1,100 protesters arrested during
    the Summit, Mr. Wall filed a complaint with the Office of the Independent
    Police Review Director (OIPRD).  The Director screened in the complaint for
    investigation pursuant to the
Police Services Act
, R.S.O. 1990, c. P.15,
    and after investigation found that the allegation of misconduct was
    substantiated against the arresting police officers and that it was of a
    serious nature.  Disciplinary hearings under the
Police Services Act
proceeded
    against the officers and a civil action has been settled.

[3]

The circumstances leading up to the present appeal arise out of the investigative
    report that was prepared in relation to the two arresting officers as part of
    the process of investigating Mr. Walls complaint.  Portions of that report
    indicated that the arrest may have occurred as a result of orders from higher
    ranking officers.  Those orders are said to have directed that anyone dressed
    in certain get-up (including the wearing of a bandana) was to be arrested and
    charged with being disguised with the intent to commit an indictable offence
    (the charge on which the appellant was arrested).  The report revealed that the
    orders may have been conveyed to the higher ranks at a meeting at which the
    Chief of the Toronto Police Services, William Blair, had attended.

[4]

Mr. Wall received a copy of the investigative report shortly after its
    release on September 7, 2011.  On January 25, 2012, he filed a follow-up
    complaint (or, alternatively, a second complaint) against Chief Blair and any other
    officers involved in or having knowledge of the meeting.

[5]

The January 25 complaint was filed in this alternative fashion because
    of a potential difficulty posed by s. 60(2) of the
Police Services Act
,
    which provides that the Director may refuse to deal with a complaint that is
    filed more than six months after the facts on which it is based occurred.  Mr.
    Wall and his counsel recognized there was a risk that, if the subsequent
    complaint were considered a new complaint, as opposed to a follow-up complaint,
    s. 60(2) could create a timing problem.  While his first complaint had been
    filed on December 28, 2010 within the six-month period after the G20 Summit 
    the January 25, 2012 complaint was not; the facts on which it was based (albeit
    unknown to Mr. Wall until shortly before) had all occurred well outside the
    six-month period.

[6]

Their concerns proved well-founded.  On February 2, 2012, the Director
    advised that he was not going to proceed with the complaint because it was out
    of time.

[7]

Mr. Wall sought judicial review of that decision.  The Divisional Court
    quashed the Directors decision not to proceed and remitted the matter back to
    the Director for his reconsideration whether to proceed.  The OIPRD appeals
    that decision, with leave.

[8]

For the reasons that follow, I would dismiss the appeal.

The Complaint(s) and the Directors Decisions

[9]

On December 28, 2010, Mr. Wall filed his complaint with the OIPRD
    outlining his version of what had happened.  In his affidavit, he stated that
    he requested 
a full investigation into [his] illegal arrest
, the
    illegal searches of [his] person, shoulder bag, and cellular telephone, as well
    as [his] subsequent mistreatment in the Prisoner Processing Centre (emphasis
    added).

[10]

Eight
    months later, the Director issued his investigative report concluding that Mr. Walls
    allegations were substantiated and serious in nature.  He found there was a
    sufficient body of evidence to establish reasonable grounds to believe that
    misconduct had occurred in connection with the complaint.

[11]

The
    arresting officers  Constables Vincent Wong and Blair Begbie  were
    subsequently prosecuted for disciplinary offences under the
Police Services
    Act
.  On December 13, 2013, the Honourable Walter S. Gonet, Hearing
    Officer, found that Cst. Wong  who had conducted the actual arrest  had
    committed police misconduct by making an unlawful and unnecessary arrest
    without good and sufficient cause.  He dismissed the allegations against Cst.
    Begbie who was with Cst. Wong at the time.

[12]

The
    Directors investigative report was very thorough insofar as it dealt with the
    allegations concerning the two arresting officers.  For the first time,
    however, it revealed that Constables Wong and Begbie were (or were under the
    impression they were) acting on instructions from higher command.  The Director
    took no steps to inquire into any such instructions.

[13]

Cst.
    Begbie is said in the report to have stated that:

·

[H]e was briefed by Sergeant Gibb, who had never briefed them
    before.  Sergeant Gibb advised Constable Begbie that he had just come from a
    meeting with the Chief of Police and he had specific instructions for that day.

·

the instructions [from command] were 

that anybody
    wearing a bandana or mask or gas mask concealing their identity were to be
    arrested for disguise with intent and I specifically wrote that in my book that
    morning
.
[Emphasis in  original.]

[14]

The
    report also noted that:

Constable Begbie was asked by O.I.P.R.D. Investigators 
If
    you werent given the orders or werent given the information that you received
    from Sergeant Gibb, during your parade, would you have laid that same charge
    against the complainant?
 to which Constable Begbie stated 
No. There
    were other charges that we considered during that time, for example Breach of
    the Peace or Participate in a Riot, but having come directly from that briefing
    and told that this is sort of the order of the day and this is what we want to
    happen today, thats why we went with that charge.
 [Emphasis in original.]

[15]

Cst.
    Wong is said in the report to have stated that:

[W]e were given instruction in regards to what had happened on
    the Saturday which was the day before and presumabl[y] over night as well and
    we were given specific direction in regards to people that were wearing
    banners, gasmask[s], [and] goggles and that they were going to be arrestable or
    that they were to be arrested for Disguise with Intent, which is a Criminal
    Code Offence and as well anyone with a backpack was to be searched and if they
    refused to be search[ed] then they would be arrestable for obstruct police which
    is a Criminal Offence and as well as people, weapons including bottles and
    canisters of liquid were to be investigated and arrested for Possession of
    Weapons. [Emphasis omitted.]

[16]

Both
    Cst. Wong and Cst. Begbie are reported to have stated that these instructions
    were from Upper Command.

[17]

Mr.
    Wall first learned of the instructions from higher command when he received the
    report on September 7, 2011. He filed his follow-up or second complaint on
    January 25, 2012.

[18]

Eight
    days after receipt of the follow-up or second complaint, the Director advised
    Mr. Wall that he would not proceed with it.  His decision in its entirety reads
    as follows:

The Office of the Independent Police Review Director (OIPRD)
    has carefully reviewed your complaint about the conduct of Chief William Blair
    of the Toronto Police Service.

The OIPRD is aware of your concerns.  S. 60(2) of the
Police
    Services Act
permits the Director not to deal with a complaint if the
    complaint is made more than six months after the facts on which it is based
    occurred.  Taking all the information into consideration, I have decided not to
    proceed with the complaint as it was made more than six months after the facts
    on which it is based occurred.

To find out more about OIPRD screening process and the
Police
    Services Act
, please visit our website at
www.oiprd.on.ca
.

The Divisional Court Decision

[19]

In
    a careful and thorough decision on behalf of the Divisional Court, Molloy J.
    reviewed the factual circumstances underlying Mr. Walls arrest, the nature of
    his complaint, and the relatively new statutory framework that was enacted to
    deal with complaints against the police and to establish the OIPRD, in response
    to the recommendations in the 2005 report of the Honourable Patrick LeSage.
[1]
She concluded that the Directors decision must be quashed on, broadly, two
    bases.

[20]

The
    first turned on the Directors treatment of the six-month period for the filing
    of a complaint, as set out in s. 60(2) of the
Police Services Act
.  She
    concluded that the Director erred in treating that provision as a limitation
    period, and compounded the error by failing to apply the discoverability
    principle in making his decision not to proceed.
[2]


[21]

The
    second error revolved around the reasons provided by the Director.  In the Divisional
    Courts view, the Director breached the statutory requirement that he give
    reasons and breached the principles of procedural fairness and natural justice
    in failing to do so.  In addition, the Directors decision was unreasonable
    both because of the lack or inadequacy of the reasons and because as a result,
    it was not possible to determine whether the Director considered the relevant
    factors in exercising his statutory discretion not to screen in the
    complaint.

[22]

These
    two grounds overlap.  In effect, Molloy J. concluded that fairness and the
    provisions of the
Police Services Act
required that the Director take
    into account both (a) the fact that Mr. Wall was unaware of the potential
    involvement of higher ranks in the orders leading to his arrest until after the
    six-month period had elapsed, and (b) his obligation to provide adequate
    reasons explaining why he was not extending the s. 60(2) time period in all the
    circumstances.

[23]

Molloy
    J. declined to grant an order of
mandamus
requiring the Director to
    refer the complaint against Chief Blair for investigation, as sought by Mr.
    Wall.  She reasoned that the Director had not demonstrated a closed mind nor
    had he used up his discretion, and that
mandamus
was not necessary.  There
    is no cross-appeal from that decision.

[24]

She
    also awarded costs in favour of
pro bono
counsel for Mr. Wall in the
    amount of $20,000.  The Director seeks to set aside that order as well.

Analysis

[25]

The
    Director argues that the Divisional Court erred in three ways:

(a) by
    applying the concept of discoverability to s. 60(2) of the
Police
    Services Act
when there was clear legislative intention to the contrary;

(b) by
    finding that the Director failed to provide reasons for his decision and that
    he was required to provide detailed reasons for his screening decision; and

(c) by ordering
    the Director to pay costs or, in the alternative, excessive costs, to Mr. Wall.

[26]

Although
    there is some overlap between (a) and (b), I will deal with each of these
    grounds in turn.

[27]

I
    note at the outset that the standard of review for the Divisional Courts
    determination that s. 60(2) incorporates discoverability principles is
    correctness, as it raises a question of law. The standard of review for the
    Directors decision not to deal with the appellants complaint is
    reasonableness, as it was a discretionary decision.


Discoverability


[28]

As
    explained below, I am persuaded that the Director is required by the scheme and
    language of the
Police Services Act
and principles of fairness to take
    into account discoverability principles when exercising his s. 60 function.

[29]

Discoverability
    is the term used  usually in the limitation period context  to describe the
    principle that a time limit ought not to begin to run against a complainant
    until the moment when the complainant knew, or ought reasonably to have known,
    that he or she had the basis for a complaint.  In essence, it is a fairness
    principle, designed to balance the need for finality against exposure to
    liability by potential defendants, and the need to avoid an injustice to the
    individual seeking to assert legitimate claims that were unknown to him or her before
    the time expired.

[30]

The
    Director argues that the Divisional Court erred by incorporating this concept
    into the operation of s. 60(2) of the
Police Services Act
.

[31]

I
    disagree. There are three principal reasons why the timing of when a
    complainant knew (or ought reasonably to have known) that there was a basis for
    a complaint is a factor the Director is required to consider when exercising
    his functions under s. 60(2) of the Act.  First, there is nothing in the Act
    that indicates discoverability is excluded from the Directors consideration. 
    Secondly, the overall scheme of Part V of the Act favours the notion that
    complaints are generally to be dealt with.  Thirdly, s. 60(3) of the Act
    requires the Director to consider the public interest.

[32]

The
    view that discoverability must be taken into account is consistent with the
    scheme set out in Part V of the
Act.
Part V provides for the supervision and treatment of complaints made to the
    Director by members of the public concerning police policies, services or
    conduct, and the disciplinary proceedings that may or may not flow from those
    complaints.  Section 26.2(a) of the Act mandates the Director to manage
    complaints made to him or her by members of the public.  Part V lays down the
    procedure for doing so.

[33]

Any
    member of the public may make a complaint to the Director under Part V about
    the policies of or services provided by a police force, or about the conduct of
    a police officer: s. 58(1).  Sections 59 and 60 of the Act set out the
    parameters of the Directors review of such complaints.  Their full text is
    attached as an appendix to these reasons.

[34]

In
    brief, however, the Director is required by s. 59 to review every complaint
    made, to classify it (as a complaint about policies or services or the conduct
    of a police officer), and to ensure that it is dealt with in accordance with
    the mechanisms set out in ss. 61 and following.
[3]


[35]

However,
    to shield the police against an avalanche of frivolous or improper complaints,
    s. 60(1) provides that the Director 
may
, in accordance with this
    section, decide not to deal with a complaint made to him or her by a member of
    the public under this Part (emphasis added). Under s. 60(4), the Director may
    decide not to deal with a complaint if it is frivolous, vexatious or made in
    bad faith, could more appropriately be dealt with under another statute, or if
    in the circumstances, dealing with the complaint would not be in the public
    interest. The Director also has the discretion to decide not to deal with a
    complaint in cases where, generally speaking, the complainant is not directly
    affected by the police policy, services or conduct: s. 60(5)-(6).

[36]

Section
    60(2), discussed above, enables the Director to decide not to deal with a
    complaint made more than six months after the facts on which it is based occurred.
    The Director is required by the terms of s. 60(3) to consider a number of
    factors when deciding not to deal with a complaint filed after the six-month
    period. The Director must consider whether the complainant is a minor or a
    person with a disability, whether the complainant is or was subject to criminal
    proceedings relating to the events forming the basis for the complaint, and
    whether in the circumstances it would not be in the public interest to deal
    with the complaint.

[37]

As these provisions indicate, the default scenario under the Act is that
    the Director is obligated to screen in a complaint for review and to have it
    dealt with in accordance with Part V
unless
one of the saving factors
    in s. 60 applies.  The Director 
shall
ensure that every complaint
    reviewed  is referred or retained and dealt with: s. 59(2) (emphasis added). 
    But the Director 
may
, in accordance with [s. 60], decide not to deal
    with a complaint: s. 60(1) (emphasis added).  This default paradigm is
    significant, in my view, in determining whether and, if so, to what extent,
    discoverability factors into the exercise of the Directors discretion not to
    proceed with a complaint.  It also bears on the scope of the requirement to
    give reasons, which I deal with below.

[38]

Although
    the six-month period provided for in s. 60(2) is often loosely referred to as a
    limitation period, the parties all agree that it is not a limitation period
    in the formal legal sense.  The Divisional Court adopted that interpretation as
    well, stating, at para. 35:

The six month period referred to in s. 60(2) is not a
    limitation period, but rather a guideline  a point in time at which the
    Director may wish to consider not dealing with the complaint, depending on
    various factors including the reasonableness of the delay and the specific
    factors the Director is directed to take into account under s. 60(3).  All
    counsel at the hearing essentially agreed with that interpretation.

[39]

Although
    the parties agree that s. 60(2) does not contain a limitation period, they have
    differing views on where that interpretation leads them.  Mr. Wall argues that
    the six-month period is a presumptive period that must yield to the interests
    of justice and the public interest. The Director says it is not a limitation
    period, but simply provides the Director with the discretion to screen in a
    complaint that has been received by his office six months after the facts on
    which the complaint was based occurred. The Director submits that he is not
    mandated to take into account notions of discoverability in exercising his
    discretion not to screen in the complaint.  In doing so, he adopts an analysis
    that leans towards treating s. 60(2) as a limitation period.

[40]

The
    Director submits that nothing in the language of s. 60(2) or in the provisions
    of s. 60(3) outlining the factors the Director is to consider in exercising his
    discretion to screen in the complaint or not to do so, mandates that he take
    into account whether or not six months have elapsed since the complainant knew
    or ought to have known that he or she had grounds for a complaint.  He
    concedes, however, that he has discretion to consider whether discoverability
    in that sense is a factor in the appropriate case.

[41]

The
    Director seeks to rely on the principle of implied exclusion to argue that if
    the legislature had intended discoverability to apply, it would have said so
    expressly.  That principle is explained by Ruth Sullivan in
Sullivan on the
    Construction of Statutes
, 6th ed. (Markham: LexisNexis Canada, 2014), at §
    8.90, as follows:

An implied exclusion argument lies whenever there is reason to
    believe that if the legislature had meant to include a particular thing within
    its legislation, it would have referred to that thing expressly.  Because of
    this expectation, the legislatures failure to mention the thing becomes
    grounds for inferring that it was deliberately excluded.  Although there is no
    express exclusion, exclusion is implied.  The force of the implication depends
    on the strength and legitimacy of the expectation of express reference.  The
    better the reason for anticipating express reference to a thing, the more
    telling the silence of the legislature.

[42]

In
    this vein, the Director points out that s. 4(1) of the
Limitations Act,
    2002
, S.O. 2002, c. 24, Sched. B, expressly states that a proceeding
    shall not be commenced in respect of a claim after the second anniversary of
    the day on which the claim was discovered.  Counsel points to s. 96 of the
Employment
    Standards Act, 2000
, S.O. 2000, c. 41, in support of the argument that where
    discoverability was not meant to apply, the legislature did not include it.

[43]

The
    Director also relies on the decision of the Alberta Court of Appeal in
Engel
    v. da Costa et al.
, 2008 ABCA 152, 429 A.R. 184, leave to appeal to S.C.C.
    refused, 460 A.R. 400 (note). There the Court considered a provision in the
    Alberta
Police Act
, R.S.A. 2000, c. P-17, s. 43(11), dealing with
    complaints made more than one year after the events on which they were based. 
    The Court concluded, at para. 31, that [d]iscoverability is not a principle
    which must necessarily apply to complaints under s. 43 of the Police Act.

[44]

I
    do not find these submissions persuasive in the context of the Ontario
    legislation.  First, it is agreed that s. 60(1) of the
Police Services Act
,
    does not provide for a limitation period.  It is therefore unnecessary to be as
    concerned with shoring up the goals of finality underpinning limitation period
    legislation.  Second, s. 60(2) expressly provides the Director with
discretion
 the Director 
may
decide not to deal with a complaint  which
    implies in itself a more flexible approach to screening post-six month
    complaints in or out (emphasis added).  The legislation considered in
Engel
is quite different: it
requires
the decision maker to dismiss a late
    complaint  
shall
dismiss any complaint that is made [outside of the
    time period] (emphasis added).  Third, even if the principle of implied
    exclusion is applicable, I am satisfied, for the reasons outlined below, that
    the language of the Act gives rise to little expectation that discoverability
    principles were to be excluded by implication.

[45]

It
    is true that s. 60(3), prescribing the factors the Director is to consider when
    exercising his or her discretion to screen in a complaint post-six months, does
    not specifically refer to discoverability principles.  However, it would be odd
     given that s. 60(2) does not provide for a limitation period, and given the
    default paradigm in the scheme favouring complaints being dealt with  if the
    Legislature intended to exclude discoverability principles from the Directors
    consideration.  In my view, there is nothing expressed or implied in the
    language of the Act to support such an intention.  Indeed, s. 60(3)(c) requires
    the Director to consider whether, having regard to all the circumstances, it
    is in the public interest for the complaint to be dealt with.  The Director
    has a discretion, but it is not an unfettered discretion.  To the contrary, it
    is a discretion to be exercised within the confines of the factors set out in
    s. 60(3) and the bounds of procedural fairness.

[46]

Complaints
    regarding police misconduct raise issues that are important to society, both
    from the perspective of the complainant and that of the police services.  It is
    generally in the public interest that complaints which are not frivolous or
    vexatious or made in bad faith  grounds upon which any complaint, timely or
    not, may be screened out  be reviewed.  I am satisfied that the public
    interest factor the Director is required to consider under s. 60(3)(c) of the
    Act encompasses an obligation to consider discoverability issues in deciding
    whether or not to deal with a post-six month complaint under s. 60(2).

[47]

For
    these reasons, I would not give effect to the Directors argument that the
    Divisional Court erred by importing notions of discoverability as a factor to
    be considered in the discretionary s. 60(2) exercise.

Reasons

[48]

The
    Divisional Court concluded (a) that the Director had failed to give reasons as
    required by s. 60(7), and (b) in any event, that he had failed to provide Mr.
    Wall with reasons that complied with the principles of procedural fairness 
    both leading to the added consequence that the decision was thus rendered
    unreasonable.

[49]

There
    is no dispute that the Director is required to give reasons when deciding not
    to deal with a complaint.  Section 60(7) dictates as much; it requires that the
    complainant is to be notified in writing of the decision,
with reasons

    (emphasis added).  The duty of procedural fairness at common law calls for as
    much as well.

[50]

Nor
    is there any dispute that what will constitute adequate reasons will vary with
    the context and nature of the decision being made. The debate revolves around
    the scope and extent of the reasons requirement in the context of the
    Directors decision not to deal with a complaint under s. 60.

[51]

The
    Director submits that he was making a screening decision rather than a full
    administrative hearing decision, and that his notification letter to Mr. Wall
    complied with his duty to give reasons in those circumstances.  He disputes
    what he says is the Divisional Courts conclusion that he was required to give
    detailed reasons in the screening context.

[52]

I
    disagree.  The statutory and common law prerequisite for reasons  i.e.,
    adequate reasons  in this context acts as a balancing safeguard: the
    legislature has mandated that the Director ensure that every complaint
    reviewed is dealt with (s. 59(2)), but made this requirement subject to the
    discretion to screen out complaints in accordance with s. 60.  The requirement
    in s. 60(7) to give reasons in writing may be viewed as a
quid pro quo
for the exception created by the screening out provision.

[53]

Here,
    the Directors notification to Mr. Wall was  for want of a better description
     underdeveloped and succinct.  I have recited the contents of the February 2,
    2012 decision in their entirety earlier in these reasons.  For ease of
    reference, the operative portion consists of the following three sentences:

The OIPRD is aware of your concerns.  S. 60(2) of the
Police
    Services Act
permits the Director not to deal with a complaint if the
    complaint is made more than six months after the facts on which it is based
    occurred.  Taking all the information into consideration, I have decided not to
    proceed with the complaint as it was made more than six months after the facts
    on which it is based occurred.

[54]

The
    Director argues that the Divisional Court erred in finding that he had given no
    reasons at all for his decision, that is, that the letter of February 2, 2012
    was simply a notification in writing of the decision without any reasons for
    that decision.  Although the Courts decision can be read in that fashion, I
    would not go so far as to say the letter falls into the no reasons at all
    category.  But it comes close.  I do not think it matters to the reasons
    analysis, however, because the same factors emphasized by the Court in stating
    that the letter constituted no reasons also undermine the adequacy of the
    reasons.  I agree with the Divisional Court that in its brevity and lack of explanation,
    the letter is devoid of any reasons adequate to allow for judicial review of the
    Directors decision to screen out Mr. Walls complaint relating to the higher
    ranks of the Police Service.

[55]

Stating
    that [t]he OIPRD is aware of your concerns, as the operative portion of the letter
    begins, is empathetic, but does not provide a reason for the decision. The
    reference in the second sentence to the six-month time frame provided for in s.
    60(2), is merely a reference to the section of the legislation relied upon. 
    While it may signal the direction which the reasoning path might follow, it is
    of little further assistance in that regard.

[56]

Only
    the final sentence of the operative portion of the letter could conceivably
    qualify as reasoning and, with respect to it, I agree with the analysis of the
    Divisional Court at paras. 47 to 48:

The [final] sentence states that:

·

Taking all the information into consideration (without any
    reference or explanation as to what information is referred to)

·

the Director has decided not to proceed with the complaint
    (which is the decision, not the reasons for the decision)

·

as it was made more than six months after the facts on which it
    is based.

The only portion of the sentence that could even potentially be
    considered reasons is the clause as it was made more than six months after the
    facts on which it is based.  However, this last clause merely recites the fact
    that the complaint is more than six months after Mr. Walls arrest.
Essentially,
    the l[e]tter says, I have the power to not deal with a complaint which is more
    than six months after the fact, and therefore that is what I am doing. 
    Answering the question Why? with the statement Because I can is not
    providing reasons.  It is the opposite of providing reasons
.
[Emphasis added.]

[57]

The
    Directors discretion to deal with, or not to deal with, a complaint that
    brings s. 60(2) into play is not an unfettered discretion as previously noted. 
    Section 60(3) mandates that [i]n making a determination under subsection (2),
    the Independent Police Review Director  for purposes of this appeal  
shall
    consider
(c) whether, having regard to all the circumstances, it is in
    the public interest for the complaint to be dealt with (emphasis added).

[58]

Did
    the Director apply his mind to this mandatory consideration?  We have no way of
    telling.  Did it matter that a report from his own office contained evidence
    that higher ranking police officers, including possibly the chief of police,
    had given orders to lower ranks (which include the arresting officers in Mr.
    Walls case) to effect illegal arrests?  Surely this must have been of some
    concern to the Director, but we dont know.  Did he consider whether clearing
    the air surrounding such potentially serious allegations was called for in the
    public interest?  Or whether the discoverability factors at play raised
    questions of fairness and openness in that context?  Again, the letter is
    silent.

[59]

We
    are left only with the cursory and generic statement: Taking all of the
    information into consideration, I have decided not to proceed with the
    complaint as it was made more than six months after the facts on which it is
    based occurred.  That is not adequate to meet the Directors obligation to
    provide reasons in such circumstances.

[60]

The
    Director argues that the Divisional Courts decision required him to provide
    detailed reasons when exercising his screening function under s. 60(2) and
    that this will unduly tax the resources of the OIPRD, given the number of
    complaints it receives.  I reject this argument on two grounds.  First, the
    Court did not say at any point in its decision that the Director is required to
    give detailed reasons.  Indeed, the Court recognized that, as the explanation
    for a screening decision, the Directors reasons are subject to less stringent
    requirements than might be the case at other levels of administrative
    decision-making.  Secondly, potentially inadequate resourcing does not provide
    an escape from the Directors duty to give reasons and to comply with the
    requirements of procedural fairness.  Concerns about resourcing are better
    directed elsewhere.

[61]

After
    observing that the decision here, as a screening decision, did not attract the
    highest level of procedural fairness, the Divisional Court went on to state,
    however, at para. 42, that:

[I]t does terminate the ability of the complainant to pursue
    his complaint of mistreatment against the police, and does therefore affect his
    rights.  The public interest mandate of the OIPRD and the importance of
    ensuring public confidence in the scheme for reviewing the conduct of police
    officers are factors supporting greater accountability and transparency than
    might be required of other screening type decisions.  Further, since the
    Director is required by the legislation to take into account certain factors,
    providing reasons would serve to focus the Directors mind on those factors as
    well as reassure both the individual and the public that they have been taken
    into account.  Since these decisions are reviewable on judicial review, it is
    essential for the court to see the reasoning process of the Director and the
    factors he took into account in making his decision. Finally, there is a
    specific legislative requirement to give reasons and therefore a legitimate
    expectation that reasons will be provided.

[62]

I
    agree with this analysis.  Detail is a function of the need to explain the
    exercise of a statutory power of decision; it is not a descriptor
    distinguishing between the types of reasons required.  The Directors reasons
    for screening out a complaint under s. 60(2) of the
Police Services Act
need not be lengthy.  They need not be complex.  But, as the Divisional Court
    observed, they must at least answer the question Why?.  The complainant, and
    the court (for purposes of review), are entitled to know the rudiments of the
    explanation for why the complaint has been screened out.   The Directors
    notification to Mr. Wall fails that test.

[63]

Given
    the Directors failure to comply with his statutory and common law duties to
    provide adequate reasons, the Divisional Court also found that the decision was
    unreasonable.  It did not meet the criteria set out in
Dunsmuir v. New
    Brunswick
, 2008 SCC 9, [2008] 1 S.C.R. 190, for justification,
    transparency and intelligibility within the decision-making process (at para.
    47).  The Directors reasons do not provide any justification for the
    decision, the reasoning is not transparent, and the basis of the decision is
    unknown.  The decision says nothing about why the Director chose to exercise
    his discretion not to proceed in the context of this particular case.  Again,
    the Divisional Court put it well, at para. 64:

I do not know why the Director made the decision that he did. 
    I cannot say whether the decision falls within a range of acceptable outcomes,
    because I have no idea what prompted the decision.  I do not know if the public
    interest was considered.  I do not know if the principle of discoverability was
    taken into account. I do not know if the responsibility of senior officers
    other than Chief Blair was even averted to.  I therefore find that the
Dunsmuir
criteria are not met.  This decision cannot be said to be reasonable.

[64]

The
    Director relies heavily on an earlier decision of the Divisional Court,
Gismondi
    v. Human Rights Commission (Ont.) et al.
(2003), 169 O.A.C. 62 (Div.
    Ct.).  However,
Gismondi
is not dispositive.

[65]

First,
    it is distinguishable.  Although the reasons provided by the Human Rights
    Commission in
Gismondi
were similarly succinct to those of the
    Director here, they were found to be adequate in the circumstances because they
    could be considered along with other material that was before the Commission at
    the time of its decision  including the submissions of the other party and the
    Commissions case analysis report  and the complainant had been advised that
    these materials would be considered by the Commission in rendering its
    decision.  That was not the case here.  While the original OIPRD report
    existed, it did not address Mr. Walls complaints about the higher ranks; to the
    contrary, as he submits, it was precisely because that report was incomplete
    that he filed his complaint.

[66]

Second,
    the Court made it clear in
Gismondi
that it would have been preferable
    had the Tribunal given fuller reasons (thereby suggesting that in future cases,
    fuller reasons should be given).  This admonition was not heeded in the present
    case.

[67]

For
    these reasons, the Directors decision cannot stand.

Fresh Evidence

[68]

Finally,
    I do not accept the submission that requiring the Director to give fuller
    reasons will place an unacceptable burden on the resources of the OIPRD.  As
    indicated above, potentially inadequate resourcing does not provide an escape
    from the Directors duty to give reasons and to comply with the requirements of
    procedural fairness, in my opinion.

[69]

In
    an effort to buttress his point, the Director sought to introduce fresh
    evidence consisting of OIPRD reports, designed to demonstrate the economic
    impact of the requirement to give detailed reasons, including various
    statistics about the workload of the OIPRD.  I would not admit this evidence. 
    It does not comply with the test for the admission of fresh evidence, as set
    out in
Palmer v. The Queen
, [1980] 1 S.C.R. 759.  Some, at least, could
    readily have been put before the Divisional Court, but was not, because the
    Director chose not to provide a record of proceedings as required by the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J.1, s. 10: see
Endicott v.
    Ontario (Director, Office of the Independent Police Review)
, 2014 ONCA 363,
    273 D.L.R. (4th) 149.  In any event, the fresh evidence is not particularly
    relevant or likely to affect the result of the appeal because, as noted above,
    the Divisional Court did not require the Director to provide detailed
    reasons.

Costs


[70]

The
    Divisional Court ordered that the Director pay costs to Mr. Wall.  The Director
    submits that it erred in making that determination and, in any event that the
    costs awarded  $20,000  were excessive.

[71]

I
    would not give effect to either of these submissions.

[72]

As
    he did below, the Director argues that this is public interest litigation and
    that he was required to participate because [the litigation] raised issues of
    first instance for the Divisional Court regarding [the Directors] constituent
    statute and involved significant and novel legal issues.  The participation of
    a public party in such situations benefits the public generally.  Further, Mr.
    Walls counsel were acting on a
pro bono
basis and there is therefore
    no hardship to him in bearing his own legal costs.  The proper order in such
    circumstances is for each party to bear their own costs, the Director
    concludes.

[73]

The
    Divisional Court recognized these considerations, yet exercised its discretion
    to order costs in favour of Mr. Wall.  I see no error in principle or in law in
    this disposition.

[74]

The
    Director was an adversarial litigant in the process even though he had a public
    interest mandate to pursue.  At the same time, the public generally had an
    interest in learning more about what may have gone wrong with policing at the
    higher levels in relation to the G20 summit, and it was Mr. Wall who successfully
    pursued that issue.  And did so with the assistance of
pro bono
counsel.

[75]

As
    the Divisional Court said, at para. 88:

Mr. Wall is a private citizen.  The law firm of Ruby Shiller
    Chan Hasan has acted for Mr. Wall in this matter on a
pro bono
basis,
    with their only chance of any recovery being a cost award in the discretion of
    the court.  The issues involved in this proceeding are complex.  Mr. Wall would
    not have been able to present his case effectively without the able assistance
    of his counsel.  It is of considerable benefit to the public and to this court
    that public interest issues of this nature be brought forward.  Unless firms
    such as this one are prepared to assist, many issues of importance to the
    public generally and also to specific individuals simply could not proceed.
    This is an access to justice issue.  In my view, the law firm should be
    entitled to recover costs in the normal course, on the same basis as is granted
    to counsel for clients with significant corporate interests every day in our
    courts.

[76]

There
    is no basis for interfering with that conclusion.

[77]

The
    Director also contests the amount awarded  $20,000.  However, the Divisional
    Court reviewed the law firms bill of costs including the division of labour
    between senior and junior counsel.  It made a downward adjustment from the nearly
    $28,000 claimed on the basis of some duplication of time.  I agree that $20,000
    represented a fair and reasonable award for costs given the public nature of
    the respondent, the time spent by counsel, the nature of the case, the
    complexity of the issues and the public interest in encouraging experienced and
    competent counsel to take on these kinds of cases (at para. 89).

Disposition

[78]

I
    would therefore dismiss the appeal, affirm the decision below, and remit the
    matter to the Director for reconsideration in accordance with para. 2 of the
    order of the Divisional Court.  I note that the Directors counsel assured us
    that the Director will reconsider as directed, should that be the case, as it
    is.

[79]

While
    I would grant leave to appeal the costs award, I would dismiss the appeal as to
    costs as well.

[80]

Mr.
    Wall is entitled to his costs of the proceedings in this Court, fixed in the
    amount of $13,500 all inclusive.

Released: K.F.  December 11, 2014

R.A. Blair J.A.

I agree K.F. Feldman
    J.A.

I agree S.E. Pepall
    J.A.

APPENDIX

POLICE SERVICES
    ACT
, R.S.O. 1990, c. P.15

59.
(1)  The
    Independent Police Review Director shall review every complaint made to him or
    her by a member of the public under this Part, and shall determine whether the
    complaint is about the policies of or services provided by a police force or
    about the conduct of a police officer. 2007, c. 5, s. 10.

(2)  Subject
    to section 60, the Independent Police Review Director shall ensure that every
    complaint reviewed under subsection (1) is referred or retained and dealt with
    in accordance with section 61. 2007, c. 5, s. 10.

60.
(1)  The
    Independent Police Review Director may, in accordance with this section, decide
    not to deal with a complaint made to him or her by a member of the public under
    this Part. 2007, c. 5, s. 10.

(2)  The
    Independent Police Review Director may decide not to deal with a complaint made
    by a member of the public if the complaint is made more than six months after
    the facts on which it is based occurred. 2007, c. 5, s. 10.

(3)  In
    making a determination under subsection (2), the Independent Police Review
    Director shall consider,

(a) whether the complainant is a
    minor or is under a disability within the meaning of the
Accessibility for
    Ontarians with Disabilities Act, 2005
;

(b) whether the complainant is or was
    subject to criminal proceedings in respect of the events underlying the
    complaint; and

(c) whether, having regard to all the
    circumstances, it is in the public interest for the complaint to be dealt with.
    2007, c. 5, s. 10.

(4)  The
    Independent Police Review Director may decide not to deal with a complaint made
    by a member of the public if, in his or her opinion, one of the following
    applies:

1. The complaint is frivolous or
    vexatious or made in bad faith.

2. The complaint could be more
    appropriately dealt with, in whole or in part, under another Act or other law.

3. Having regard to all the
    circumstances, dealing with the complaint is not in the public interest. 2007,
    c. 5, s. 10.

(5)  The
    Independent Police Review Director may decide not to deal with a complaint made
    by a member of the public about a policy of or service provided by a police
    force if the policy or service did not have a direct effect on the complainant.
    2007, c. 5, s. 10.

(6)  The
    Independent Police Review Director may decide not to deal with a complaint made
    by a member of the public about the conduct of a police officer if the
    complainant is not one of the following:

1. A person at whom the conduct was
    directed.

2. A person who saw or heard the
    conduct or its effects as a result of being physically present at the time and
    place that the conduct or its effects occurred.

3. A person who,

i. was in a personal relationship
    with a person described in paragraph 1 at the time that the conduct occurred,
    and

ii. suffered loss, damage, distress,
    danger or inconvenience as a result of the conduct.

4. A person who has knowledge of the
    conduct, or has in his or her possession or under his or her control anything
    relating to the conduct, if, in the Independent Police Review Directors
    opinion, the knowledge or thing constitutes compelling evidence that the
    conduct complained of is misconduct as defined in section 80 or unsatisfactory
    work performance and the evidence would likely be admissible in a court
    proceeding. 2007, c. 5, s. 10.

(7)
    If the Independent Police Review Director decides not to deal with a complaint
     in accordance with this section, he or she shall notify the complainant and
    the chief of police to which the matter relates in writing of the decision with
    reasons






[1]
The Hon. Patrick J. LeSage, Q.C.,
Report on the Police Complaints System in
    Ontario
(April 2005).



[2]
Discoverability is the principle that a time limit ought not to run against a
    complainant until that period has passed following the moment when the
    complainant knew, or ought reasonably to have known, that he or she had the
    basis for a complaint.



[3]
The particulars of these mechanisms are not important for the purposes of the
    appeal.


