



C
OURT
    OF APPE
AL FOR ONTARIO

CITATION: Stanley v. Office of the
    Independent Police Review Director, 2020 ONCA 252

DATE: 20200415

DOCKET: C66899

Watt, Hourigan
    and Trotter JJ.A.

BETWEEN

Faye Stanley, Yasin Stanley,
    Yusuf Stanley and Taufiq Stanley

Applicants

(Respondents in appeal)

and

Office of the Independent Police
    Review Director

Respondent

(Appellant)

and

Chief
    of Police of the Toronto Police Service, and Constable Christopher Howes

Respondents

(Respondents in appeal)

W. Scott Childs, for the appellant

Selwyn A. Pieters and Brian M. Clarke,
    for Faye Stanley, Yasin Stanley, Yusuf Stanley, and Taufiq Stanley

Alexandra D. Ciobotaru, for the Chief
    of Police of the Toronto Police Service

Lawrence Gridin, for Constable Christopher
    Howes

Heard: November 27, 2019

On appeal from the order of the Divisional
    Court (Regional Senior Justice Geoffrey B. Morawetz and Justices Anne M.
    Mullins and Wendy M. Matheson) dated January 8, 2019, with reasons reported at
    2019 ONSC 180.

Trotter
    J.A.:

A.

introduction

[1]

This appeal concerns an investigation into
    alleged police misconduct. The respondents  Faye Stanley, Yasin Stanley, Yusuf
    Stanley and Taufiq Stanley (collectively the Stanleys)  filed complaints
    with the Office of the Independent Police Review Director (the OIPRD or the
    Director) about a number of police officers.

[2]

The Stanleys complaints arose from the
    execution of a search warrant at their home by members of the Toronto Police
    Service (TPS), including Constable Christopher Howes. They alleged excessive
    use of force, the failure to show them the entire contents of the search
    warrant, unnecessary property damage, and other discreditable conduct,
    including a racist threat.

[3]

The OIPRD is an independent civilian oversight
    agency that receives, manages, and oversees all public complaints about the
    police in Ontario. It receives its legislative authority from the
Police Services Act
, R.S.O. 1990, c. P.15
    (
PSA
).

[4]

After an investigation, the OIPRD found that an
    allegation that Constable Howes had used excessive force was substantiated
    and referred the matter to the Chief of Police of the TPS for a disciplinary
    hearing. The infraction was deemed serious. Shortly after the referral, an
    officer from the Professional Standards Unit of the TPS contacted the Director about
    a transcription error in Constable Howes statement to the investigators. He
    also asked the Director if the matter could be re-classified as less serious,
    allowing for the option of informal resolution by way of discipline without a
    hearing.

[5]

The Director advised the Stanleys that new
    information had come to light that required further investigation, but he did
    not disclose who brought this information to his attention. Following a further
    investigation, the Director determined that the allegation against Constable
    Howes was now unsubstantiated and advised the Stanleys of his decision. The
    file was closed. There was no disciplinary hearing.

[6]

The Stanleys sought judicial review of the
    Directors second decision in the Divisional Court. That court framed the
    issues as follows: (1) whether the OIPRD had authority to re-open the
    investigation and reconsider its initial decision; (2) whether there was a
    breach of procedural fairness arising from the OIPRDs dealings with the TPS in
    the course of re-opening the investigation and reconsidering the initial decision;
    and (3) whether the new decision was reasonable, both in terms of the
    allegation against Constable Howes, and in relation to the search warrant issue.
    The Divisional Court allowed the application on the procedural fairness ground.
    It set aside the Directors decisions and ordered the OIPRD to conduct a third
    investigation using investigators not previously involved in the case.
    Moreover, it ordered that a delegate of the Director decide whether the case
    should be referred to the TPS for a disciplinary hearing.

[7]

The OIPRD appeals this decision, supported by
    the TPS and Constable Howes.

[8]

I would allow the appeal in part. I would uphold
    that part of the Divisional Courts decision setting aside the Directors
    second decision (i.e., finding that the allegation against Constable Howes was
    unsubstantiated). However, I would do so for different reasons than the
    Divisional Court. The Director lacked any authority to reconsider his decision
    to refer the case to the TPS for a disciplinary hearing. The Director was
functus officio
. Although the OIPRD has
    since amended its Rules of Procedure to permit the type of reconsideration at
    issue on this appeal, that power did not exist when the Director dealt with the
    Stanleys complaints. However, I would set aside that part of the Divisional
    Courts decision ordering that a third investigation be conducted. In the
    circumstances, it is unnecessary to directly address the procedural fairness
    issue.

B.

Factual background

(1)

Execution of the search warrant

[9]

The police received information that Taufiq
    Stanley was unlawfully in possession of a firearm. A warrant was obtained. On
    April 25, 2014, just after midnight, the police broke down the front door of
    the Stanleys house and 19 police officers, many from the Emergency Task Force,
    rushed inside.

[10]

Faye Stanley had been sleeping and was awakened
    by her son, Yasin, who told her that the police were at the door with their
    firearms drawn. When the police ascended the stairs, Faye and Yasin were
    ordered to the ground. Faye was eventually allowed to sit on her bed.

[11]

Yasin, who was close by, asked if he could get
    up as well. He said that an officer stomped on his neck while he was handcuffed.
    Faye described it differently. She said the officer put his foot on Yasins
    neck and then pushed down, but she could not tell how hard. Both Yasin and Faye
    complained about this treatment to the officers.

[12]

Faye was asked to move the family dog from one
    room to another. When Yasin commented on what was happening, a white police
    officer (allegedly Constable Howes) yelled shut up and stomped on his neck.
    Faye said she witnessed this incident. Yasin further alleged that, when the dog
    was being moved, the same officer leaned down and whispered, Shut the fuck up,
    or I will put you in a hole with the rest of them, n.. Faye saw the officer
    lean down to speak to her son, but she did not hear what was said.

[13]

The officers did not locate any firearms in the
    Stanleys home. No charges were laid.

[14]

Yasin was eventually taken to the hospital in an
    ambulance, wearing a neck brace. He was released later that morning, having
    been diagnosed with a contusion/minor head injury.

[15]

In addition to the alleged assault on Yasin, the
    Stanleys complained about the damage caused to their possessions while the
    police executed the warrant. They alleged other discreditable conduct,
    including inappropriate remarks about the tidiness of their home. Lastly, Faye
    complained that, although she was shown the search warrant, she was not shown
    the appendices.

(2)

Proceedings before the OIPRD

[16]

The Stanleys filed complaints with the OIPRD on
    July 3, 2014. The allegations were investigated and resulted in an investigative
    report, dated March 4, 2015 (the first report). The 118-page report contains
    a thorough review of the evidence of the Stanleys, civilian witnesses (i.e., paramedics),
    and 19 police officers. Of the numerous allegations made by the Stanleys, the Director
    determined that only one of the allegations was substantiated. The first report
    concludes:

The available information indicates that
    Constable Howes stepped on Yasins neck two times. His actions and the force
    are deemed unnecessary and unreasonable.

Therefore, with the respect to the allegation
    of Unnecessary Exercise of Authority against Constable Howes, upon review of
    all available information, the Director has determined that there is
sufficient
    evidence
to conclude that misconduct occurred. Therefore this
    allegation is found to be
substantiated.
[Emphasis in original.]

All other allegations were determined
    to be unsubstantiated.

[17]

On March 4, 2015, the Director wrote to the
    Stanleys to inform them that he had completed his investigation. He said:

After careful investigation I have found that
    there is evidence of misconduct of a serious nature as it relates to Constable
    Chris Howes, Badge 7716, as defined by the
Police Services Act
A final
    report has been completed and will be forwarded to the Chief of the Toronto
    Police Service for adjudication. A copy of the report is attached to this
    letter.

The letter also explained that there
    was insufficient evidence for me to determine that there are reasonable
    grounds to believe that any other misconduct occurred. The Stanleys were told
    that a prosecutor would contact them in the near future.

[18]

On the same day, the Director sent a letter to
    the Chief of the TPS, to the attention of Acting Inspector Russell Jarosz of
    the Professional Standards Unit, advising of his findings. The Director indicated
    that the allegation of excessive force against Constable Howes was
    substantiated and had been classified as serious and, pursuant to s. 68(3) of
    the
PSA
, a hearing must
    be scheduled.

[19]

The facts giving rise to this appeal occurred in
    the days that followed. On March 10, 2015, Acting Inspector Jarosz sent the
    following email to the Director:

Superintendent Ed Boyd and I have had the
    opportunity to review your March 4, 2015, report of investigation with regard
    to the above noted matter. We have some concerns with regard to the
    investigative findings and would like to discuss the matter with you at your
    earliest convenience. I am suggesting a conference call if that is most
    convenient for you.

[20]

What occurred next is not entirely clear because
    no record was kept. It would appear that a conference call did occur, during which
    Acting Inspector Jarosz identified an error in the transcription in Constable
    Howes statement to OIPRD investigators. The purported error went to whether
    Constable Howes perceived Yasin to be assaultive and a threat. Acting Inspector
    Jarosz also requested that the matter be treated as less-serious, permitting the
    possibility of a disposition without hearing. However, this would require Constable
    Howes consent. Acting Inspector Jarosz said he would communicate this option
    to Constable Howes. This conference call was followed up in a March 25, 2015
    letter from Acting Inspector Jarosz to the Director in which he thanked him for
    revisiting your decision of March 4, 2015.

[21]

On April 15, 2015, Acting Inspector Jarosz sent
    another email to the Director to advise that Constable Howes was not willing to
    accept a disposition without a hearing (i.e., a reprimand) and that a hearing
    would need to be conducted.

[22]

The next part of the documentary trail consists
    of a series of redacted internal OIPRD emails on April 17, 2015. They reveal
    the Directors request for a wholesale review of the first report. A five-page,
    undated internal document entitled, Investigative Review  Stanley
    Investigation was produced. The Review found some areas of concern relating
    to Constable Howes statement.

[23]

On May 6, 2015, the Director wrote again to the
    Chief of Police of the TPS, to the attention of Acting Inspector Jarosz, and
    reported that he had re-opened his investigation. The Director explained:

It has since been brought to my attention that
    there may be inaccuracies in the Investigative Report. I have undertaken a
    review of my investigation and have in fact identified some inaccuracies, as
    well as some areas that warrant further investigation. I have also identified
    that one of the allegations set out in Faye Stanleys complaint, namely that she
    was not shown the search warrant in its entirety, was not fully investigated.

As a result,
I have decided to re-open
    my investigation
. I am accordingly
suspending all of my previous
    investigative findings
against all twenty officers, all of whom remain
    designated as respondent officers. [Emphasis in original.]

On the same day, the Director wrote
    to the Stanleys to apprise them of his decision.

[24]

On June 10, 2015, the African Canadian Legal
    Clinic, on behalf of the Stanleys, wrote to the Director to protest the
    decision to re-open the investigation. The author, Mr. Roger Love, said that
    neither the
PSA
nor
    the Rules under the
PSA
authorized the Director to re-open an investigation once it has
    been referred to the Chief of Police for a hearing. Mr. Love also expressed concerns
    about the lack of openness in the process, writing, The circumstances which
    caused these inaccuracies to come to your attention and your decision to
    review the completed report are unknown to the complainants and raise fairness concerns.

[25]

The Director responded to Mr. Love on June 24,
    2015. He explained the focus of his re-investigation  whether Constable Howes had
    used excessive force, as well as the lack of a proper investigation of Faye
    Stanleys complaint about the search warrant. The Director specifically
    referred to issues concerning Constable Howes statement, but did not mention
    that the issue arose through communications with the TPS. The Director
    explained his authority to re-visit his decision in the following passage:

I have carefully considered your position that
    I not have the authority to reopen my investigation.
With respect, I
    disagree. While you are correct that neither the
Police Services Act
(the PSA) nor the OIPRD Rules of Procedure explicitly set out the authority
    for doing so, neither do they explicitly preclude it. Importantly, section 72
    of the PSA permits me to direct the chief of police to deal with a complaint in
    the manner in which I specify, before a hearing under subsection 66(3) or 68(5)
    is commenced.
The Divisional Court in
Figueiras v. (York) Police
    Service Board
[2013 ONSC 7419, at paras. 56-57(Div. Ct.)] affirmed that
    this power of direction applies to both investigations which have been referred
    to the chief of police and those which have been retained by the OIPRD.

In addition to my statutory authority
    derived from subsection 72 of the PSA, I take the position that I have common
    law authority to suspend my investigative finding and reopen my investigation.
My decision to do so is an investigative decision, made at an
    investigative stage, not an adjudicative one. This decision is very different
    from the caselaw respecting the inability of administrative tribunals to change
    their decisions after a hearing on the merits. Rather, my investigative decision
    is akin to a decision made during a criminal investigation, which is always
    ongoing and does not end once a charge is laid [citing
Hill v.
    Hamilton-Wentworth Regional Police Services Board
, 2007 SCC 41, [2007] 3
    S.C.R. 129, at para. 84]. [Emphasis added. Footnotes omitted.]

[26]

On December 10, 2015, the Director sent near-identical
    letters to the TPS and Mr. Love, explaining the results of his reinvestigation,
    attaching an Addendum to the first report. The Director explained that, due to conflicting
    evidence regarding whether Yasin was handcuffed when Constable Howes applied
    pressure to his head/neck area, and the dynamic situation faced by the
    officers, the allegation of excessive force was unsubstantiated.

[27]

The Director also found that providing Faye Stanley
    with a copy of the warrant, regardless of the appendices, was sufficient to
    discharge the duties set out in s. 29(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, which provides:

It is the duty of every one who executes a
    process or warrant to have it with him, where it is feasible to do so, and to
    produce it when requested to do so.

In light of
R. v. Cornell
,
    2010 SCC 31, [2010] 2 S.C.R. 142, the Director concluded that providing Faye
    Stanley with a copy of the warrant alone was sufficient.

C.

proceedings in the divisional court

[28]

The Stanleys made an application for judicial
    review to quash the Directors second decision of December 10, 2015 and sought
    to have the March 4, 2015 decision reinstated. The Stanleys argued that: (a)
    the Director lacked the authority to re-open the investigation after his March
    4, 2015 decision to refer the matter to the TPS for a hearing; (b) there was a
    breach of the rules of procedural fairness arising from the communications between
    the Director and the TPS; and (c) the Directors second decision was unreasonable.

[29]

The Divisional Court allowed the application
    solely on the basis of the procedural fairness issue. As Mullins J. wrote, at
    para. 28:

As is emphasized by the name of the
    decision-maker, the Director of the Office of Independent Police Review was
    obliged to conduct an independent investigation and reach an independent
    decision. This independence is central to the OIPRD's role in providing a
    public complaints system against police officers in Ontario:
Nobody v.
    Ontario Civilian Police Commission
, 2016 ONSC 5824 (Div. Ct.), at
    para. 49.
Here, in circumstances which belie the independence of the
    OIPRD, the Director had undisclosed discussions with the TPS about changing his
    decision and, ultimately, he did change his decision. These undisclosed
    communications give rise, at least, to an appearance of unfairness and
    compromise the independence of the Director.
[Emphasis added.]

[30]

The court found that there had been a breach of
    procedural fairness and that there was no need to address the Stanleys other
    arguments. The Directors decision was quashed and the complaints were referred
    back to the OIPRD for a fresh investigation.

[31]

The OIPRD obtained leave to appeal to this court
    on April 26, 2019. On August 26, 2019, Pepall J.A. stayed the order of the
    Divisional Court: see
Stanley v. Office of the
    Independent Review Director
, 2019 CarswellOnt
    13600.

D.

The positions of the parties

[32]

The OIPRD submits that the Divisional Court
    erred in finding that the decision to re-open the investigation was not in
    accordance with rules of procedural fairness. He submits that the Divisional
    Court erred in its approach by applying procedural standards applicable to
    adjudicative decision-making rather than investigative decision-making. The TPS
    and Constable Howes support the Directors position. All three contend that the
    Director had the power to re-open his investigation and reverse his decision to
    refer the case to the TPS for a hearing.

[33]

The Stanleys contend that the Divisional Court
    was correct to find a breach of the rules of procedural fairness. They support
    the order that a fresh investigation be conducted.

E.

anaylsis

(1)

Introduction

[34]

In my view, the December 10, 2015 decision of
    the Director must be set aside. However, I would do so for different reasons
    than the Divisional Court. The Director had no authority to reconsider his
    decision to refer the case to the TPS for a disciplinary hearing. Despite his
    claim, he lacked common law powers to do so. He also lacked such statutory
    powers: s. 72 of the
PSA
does not supply this power, nor did the OIRPDs Rules of Procedure
    that were in place at the time. Consequently, the December 10, 2015 decision of
    the Director must be set aside. However, as explained below, I would not direct
    that a third investigation be conducted at this stage and would set aside that
    part of the Divisional Courts decision.

(2)

Legislative Context

[35]

In order to explain my conclusions, it is
    necessary to outline the legislative framework within which the OIRPD operates.
    The procedure for addressing police complaints is complex. This summary, which
    is not comprehensive, highlights the difference between the powers of the OIPRD
    to refer cases to a chief of police for investigation and the power to refer a
    case for a hearing.

[36]

The OIPRD is an arms-length agency of the
    Ministery of the Attorney General. It derives its authority from Parts II.1 and
    V of the
PSA
. As
    stated in its
Annual Report (April 1, 2018 to March
    31, 2019
)
, at p. 7:
    The OIPRD ensures that public complaints about police are effectively dealt
    with in a manner that is transparent and fair to both the public and the
    police. All decisions are independent of the government, the police and the
    public.

[37]

In general, any member of the public may make a
    complaint to the OIPRD under the
PSA
about the policies of, or the services provided by, a police force,
    or the conduct of one of its officers (ss. 58(1), (2)). The Director shall
    review every complaint it receives (s. 59). A complaint is presumptively
    screened in (meaning that it will be investigated), unless the Director
    exercises his legislative discretion to screen out the complaint (meaning
    that it will not be investigated) (s. 60). This may occur, for example, when
    the Director determines that the complaint is vexatious (s. 60(4)). Therefore,
    the presumption is that complaints are screened in.

[38]

This initial screening power has been
    interpreted to be a statutory power of decision within the meaning of the
Judicial Review Procedure Act
, R.S.O. 1990,
    c. J.1: see
Endicott v. Ontario (Independent Police
    Review Office)
, 2014 ONCA 363, 373 D.L.R. (4th)
    149, at para. 28.

[39]

In
Wall v. Office of
    the Independent Police Review Director
, 2014 ONCA
    884, 123 O.R. (3d) 574, at paras. 33-36, the Director decided not to consider a
    complaint that had been made six months after the alleged incident. He relied
    upon s. 60(2), which provides that the Director may decide not to deal with a
    complaint by a member of the public if the complaint is made more than six
    months after the facts on which it is based. The Divisional Court held that
    the Director erred in treating s. 60(2) as a limitation period, failing to
    apply the discoverability principle, and failing to give adequate reasons:
Wall v. Independent Police Review Director
,

2013 ONSC 3312, 362 D.L.R. (4
th
) 687 (Div. Ct.).

[40]

In dismissing the Directors appeal, this court described
    the Directors discretion under s. 60 as a screening function:
Wall (ONCA
), at para. 62. Writing for
    the court in
Wall (ONCA
)
, Blair J.A. observed, at para. 45,
    that this function involves the exercise of a discretion to be exercised
    within the confines of the factors set out in s. 60(3) and the bounds of
    procedural fairness: see also paras. 28, 49, 60.

[41]

If a complaint remains screened in, s. 59(2)
    requires the Director to ensure that every complaint reviewed under s. 59(1) is
    referred or retained and dealt with in accordance with section 61. Section 61
    gives the Director three options:

(a) refer
    the complaint to be
investigated
by the chief of police of the officers force (s. 61(5)(a));

(b) refer
    the complaint to be
investigated
by the chief of police of another force (s. 61(5)(b)); or

(c) retain
    the complaint to be
investigated
by the OIPRD (s. 61(5)(c)).

Where the OIPRD retains the complaint
    for investigation and finds it to be substantiated, it must refer the matter
    under s. 68(3) to the chief of police for a
hearing
. That is what happened in this case  the Director originally found
    the Stanleys complaint to be substantiated and made a hearing referral.

[42]

Thus, it can be seen that there are two types of
    referral: investigation referral under ss. 61(5)(a), (b), and hearing referral
    under s. 68(3).

[43]

At the conclusion of an investigation, the
    decision-maker (be it the Director or a chief of police) must report on the
    investigation in writing and provide reasons explaining whether there are
    reasonable grounds to believe misconduct occurred (ss. 66(1)-(3) (chief of
    police); ss. 68(1)-(4) (OIPRD)).

[44]

The decision-maker must then determine whether
    the misconduct is serious. Misconduct that is determined to be not of a
    serious nature may be dealt with by informal resolution, or discipline without
    a hearing, with the consent of the complainant and the officer (ss. 66(4)-(7)
    (chief of police); ss. 68(4)-(7) (OIPRD)). Importantly, with all serious
    misconduct findings, a hearing must be held to determine whether the officer
    committed the misconduct alleged.

[45]

In his letter to Mr. Love, and in submissions
    made in the Divisional Court and this court, the Director stresses that his
    investigative role is predominant. But the OIPRD is more than just an
    investigative body. It is also an administrative decision-maker. This is clear
    from this courts decisions in
Endicott
and
Wall
,
    both of which dealt with the initial screening function of the OIPRD. In my
    view, the determination of whether reasonable grounds exist to believe
    misconduct has been committed, and the concomitant decision of whether to refer
    the case to the chief of police for a disciplinary hearing, cast the Director
    in a more enhanced decision-making role, even if it falls short of
    adjudication.

(3)

The Power to Reconsider and the Doctrine of
Functus

Officio

[46]

The doctrine of
functus
    officio
applies to administrative decision-makers.
    The general common law rule is that a decision-maker (historically, a court) is
functus officio

when they make a final decision in respect of the matter before
    it:
Chandler v. Alberta Association of Architects
, [1989] 2 S.C.R. 848, at p. 861. In
Chandler
, the Supreme Court considered this doctrine in the administrative
    law context. Writing for the majority, Sopinka J. wrote that there is a sound
    policy reason for recognizing the finality of proceedings before administrative
    tribunals:
Chandler
,
    at p. 861. He defined the rules as follows:

As a general rule, once such a tribunal has
    reached a final decision in respect to the matter that is before it in
    accordance with its enabling statute, that decision cannot be revisited because
    the tribunal has changed its mind, made an error within jurisdiction or because
    there has been a change of circumstances. It can only do so if authorized by
    statute or if there has been a slip or error within the exceptions enunciated
    in
Paper Machinery Ltd. v. J.O. Ross Engineering Corp.
[[1934] S.C.R.
    186].

Sopinka J. further clarified that the
    doctrine should not operate so strictly in the administrative law context,
    where there are indications in the enabling statute that a decision can be
    reopened in order to enable the tribunal to discharge the function committed to
    it by enabling legislation:
Chandler
, at p. 862;

see also the
    helpful discussion in David J. Mullan,
Administrative Law
(Toronto:
    Irwin Law, 2001), at pp. 384-389.

[47]

In
Jacobs Catalytic
    Ltd. v. I.B.E.W., Local 353
, 2009 ONCA 749, 98
    O.R. (3d) 677, this court considered whether the Ontario Labour Relations Board
    had jurisdiction under the
Labour Relations Act,
    1995
, S.O. 1995, c. 1, Sched. A. (the
LRA
) to issue a second, supplementary
    set of reasons elaborating on a short set of original reasons. Following
Chandler
, Epstein J.A. (Blair J.A.,
    concurring) wrote, at para. 33: Beyond clerical or mathematical errors, or an
    error in expressing the tribunals intention,
functus
    officio
generally applies except where varied by
    statute. There is no suggestion in this case of a slip or error. Therefore the
    Board's jurisdiction to revisit its reasons must be through the authorization
    of the
LRA
.


[48]

Epstein J.A. found that,
although s. 114 of the
LRA
furnished the Board with jurisdiction to reconsider any decision,
    order, direction, declaration or ruling made by it and vary or revoke any such
    decision, order, direction, declaration or ruling, it did not permit the
    issuance of supplementary reasons in the absence of reconsideration (which was
    accompanied by a set of procedural safeguards). Having no jurisdiction to issue
    the second set of reasons, the majority found a denial of procedural fairness
    and the appeal was allowed:
Jacobs Catalytic
, at para. 71.
[1]

[49]

Therefore, the question becomes whether the
    OIPRD, as a creature of statute, is empowered by its legislative framework to
    reconsider a hearing referral decision. At the time of the Stanleys
    complaints, it was not.

(a)

No Power at Common Law

[50]

Before I address the legislative framework, I
    briefly consider the Directors claim  in his letter to Mr. Love of June 24,
    2015 (set out at para. 25, above), in his factum, and in his submissions before
    this court  that he had a common law power to reconsider his decision. I am unable
    to discern such a power.

[51]

The Director relies upon the oral reasons of the
    Divisional Court in
Greer v. Ontario Provincial
    Police Commissioner
, [2006] O.J. No. 4771 (Sup.
    Ct. (Div. Ct.)).
Greer
involved an application for judicial review of the Superintendent of the police
    force to reconsider a police complaint that he had previously determined to be unsubstantiated.
    After the Superintendent reversed his original decision, the subject officer
    sought judicial review of this decision.

[52]

The Divisional Court held that the
    Superintendent was not prohibited from revisiting a decision that the complaint
    was unsubstantiated. As the court said in its reasons, at para. 7: Such a
    decision in our opinion is not a final adjudicative decision and the doctrine
    of
functus officio
is
    not applicable. [The Superintendent] was performing a screening function that
    was investigative, not adjudicative and therefore administrative in nature.
[2]

[53]

Respectfully, this decision is unhelpful. It was
    decided before the creation of the OIPRD and the framework for decision-making
    under the current model. Further, the characterization of decisions as
    investigative, adjudicative, final adjudicative, and administrative is
    inconsistent with the approach in
Endicott
and
Wall
.
    Moreover, these types of distinctions are not evident in
Chandler
or
Jacobs
. If the OIPRD is correct that
    all of the decisions it makes are investigative in nature, then it would never
    be
functus officio

in respect of any decision taken by the Director. This cannot be the
    case. It would undermine the principle of finality that was at the heart of
Chandler
.

[54]

The Director has no power at common law to
    re-open an investigation and reconsider his hearing referral decision.

(b)

No Statutory Power under the
PSA

[55]

In his letter to Mr. Love, the Director
    acknowledged that he had no explicit statutory power of reconsideration but
    insisted that the
PSA
and the OIPRDs Rules of Procedure in force at the time did not explicitly
    preclude it. The Director purported to find the power in s. 72 of the
PSA
.

[56]

I am unable to find a power to reconsider a hearing
    referral decision in s. 72. Section 72 reads as follows:

Public complaints may be directed

72

(1) The Independent Police
    Review Director may, with respect to a complaint made by a member of the public
    under this Part about the conduct of a police officer other than a chief of
    police or deputy chief of police,
at any time after the complaint is referred
    to a chief of police under clause 61 (5) (a) or (b)

and before a hearing
    under subsection 66 (3) or 68 (5)
in respect of the complaint is commenced,

(a)  direct the chief of police to deal
    with the complaint as the Independent Police Review Director specifies;

(b)  assign the investigation of the
    complaint or the conduct of a hearing in respect of the complaint to the chief
    of police of a police force other than the police force to which the complaint
    relates;

(c)  take over the investigation of the
    complaint; or

(d)  take or require to be taken by the
    chief of police any other action with respect to the complaint that the
    Independent Police Review Director considers necessary in the circumstances.
    [Emphasis added.]

[57]

The distinction between investigative referrals
    and hearing referrals discussed above is crucial to a proper reading of s.
    72(1). According to the underscored words above, the applicability of s. 72 is
    conditional upon an
investigative
referral having been made under ss. 61(5)(a) or (b). Moreover, the
    window closes after a disciplinary hearing commences. The powers enumerated in
    s. 72(1)(a) to (d) all contemplate the director taking action after having
    referred the matter for investigation under ss. 61(5)(a) or (b). For example, ss.
    72(1)(b) and (c) specifically refer to the the investigation.

[58]

In its factum, the Chief of Police relies upon
    the power to take over an investigation in s. 72(1)(c) as authorizing what the
    Director did in this case. I disagree. The Director had retained the
    investigation, completed it, and then referred the matter to the Chief of Police
    to conduct a hearing. There was no longer any investigation to take over. Again,
    the power in s. 72(1) is triggered by an investigative referral. It has no
    application where there has been a retention under s. 61(5)(c) followed by a
    hearing referral under s. 68(3)  the situation in this case.

[59]

The Director relies on the underscored reference
    to hearings under s. 66(3) (hearing after investigation by a chief of police)
and
68(5) (hearing referral by the
    Director) as supporting his position that s. 72(1) applies in the circumstances
    of this case. On its face, the inclusion of s. 68(5) supports the position of
    the Director. However, these references to hearings being commenced cannot be
    disjoined from the requirement that the complaint must first be referred to a
    chief of police under s. 61(5)(a) or (b) (for investigation). Admittedly, the
    reference in s. 72(1) to a hearing under s. 68(5) is confusing. However, it may
    be explained by a scenario whereby an investigation was initially referred to a
    chief of police (ss. 61(5)(a) or (b)), only to be subsequently taken over by
    the Director (s. 72(1)(c)), ultimately resulting in a hearing referral under s.
    68(5).

[60]

The Chief of Police also relies on
Figuerias v. York Police Services Board
,
    2013 ONSC 7419, 317 O.A.C. 179 (Div. Ct.), in which the court rejected the
    argument that the powers in s. 72(1) may not be exercised when the complaint is
    retained by the OIRPD and then referred to a chief of police for hearing. As
    the court said, at para. 57: Neither the language of the legislation nor the policies
    behind the legislation support the limited interpretation of these sections
    urged upon us by the Respondents. However, the court explicitly noted that the
    determination of this issue was not essential to its to determination of the
    issues before it. This
obiter

from
Figuerias

has not been adopted in any subsequent
    decision. For the reasons already given, I respectfully reject this
    interpretation.

[61]

I return to the underscored words of s. 72(1),
    above. Although the section presents certain interpretative difficulties by the
    inclusion of a reference to a hearing under s. 68(5), a fundamental
    precondition to its operation is an investigative referral. Without an
    investigative referral in the first place, the Director is powerless to
    exercise the powers set out in ss. 72(1)(a)-(d).

[62]

Even if could be said that s. 72(1) applied to
    situations where the Director has made a hearing referral, the powers listed in
    paras. (a) to (d) cannot be read so broadly so as to include the power to
    reconsider the hearing referral in the first place. In this regard, it is
    noteworthy that the
PSA

does
provide
    for reconsideration where a complaint is found to be
unsubstantiated
: s. 71. The implied
    exclusion rule of statutory interpretation further supports the conclusion that
    the
PSA
does not
    provide for reconsideration of
substantiated
complaints. Where legislation provides for one exception to a
    general rule  in this case, being an exception to
functus

officio

where there is an unsubstantiated complaint  this
    suggests that other exceptions are excluded:
Zeitel
    v. Ellscheid
, [1994] 2 S.C.R. 142, at p. 152. This
    lends further support to the idea that there is no exception to
functus officio
in the event of a
    substantiated complaint.

[63]

For these reasons, I conclude that the Director
    was powerless to suspend his decision made under s. 68(3) of the
PSA
, conduct a new investigation, and
    then decide that the complaint was unsubstantiated.

(c)

The Rules of Procedure and the Path Forward

[64]

Since the Director considered the Stanleys
    complaints, circumstances have changed. The OIPRDs Rules of Procedure now
    clothe the Director with the reconsideration authority he purported to exercise
    in relation to the Stanleys complaints.

[65]

The
Statutory Powers
    and Procedures Act
, R.S.O. 1990, c. S.22 (the

SPPA
) addresses when it is
    appropriate for tribunals
[3]
to reconsider its decisions. Sections 21.1 and 21.2 provide as follows:

21.1

A tribunal may at any time correct
    a typographical error, error of calculation or similar error made in its
    decision or order.

21.2 (1)

A tribunal may, if it considers it advisable and
if its rules
    made under section 25.1 deal with the matter,

review all or part of its
    own decision or order, and may confirm, vary, suspend or cancel the decision or
    order
.

(2)
The review
    shall take place within a reasonable time after the decision or order is made.

(3)
In the
    event of a conflict between this section and any other Act, the other Act
    prevails. [Emphasis added.]

[66]

The OIPRDs Rules of Procedure that were in
    force at the time of the Stanleys complaints did not address the powers in s.
    21.2(1). On July 7, 2016 (in the summer following the Directors reversal of
    his original decision in this case), the OIPRD amended its Rules of Procedure. The
    new Rule 17 deals specifically with the jurisdictional issue on appeal:

Rule 17 Reconsiderations

17.1  The Director may, at any time,
    correct a typographical error, error of calculation, misstatement, ambiguity,
    technical error or other similar error made in his or her decision or
    determination.

17.2  The Director may reconsider his or
    her decision when it is in the public interest to do so, and having regard to
    any relevant considerations including, but not limited to, the following:

(i)
the need to correct an error of
    fact
or law, defect in procedure or improper application of its mandate or
    jurisdiction.

(ii)
there is new information which
    was not available at the time of the original decision that may have reasonably
    affected the outcome.


(iii)  the extent to which any party has
    relied on the original decision.

(iv)  the extent to which any party or person
    has been affected by the original decision.

(v)  the balancing of interests between
    the need for finality of decisions and the prejudice to all parties. [Emphasis
    added.]

[67]

This rule applies to the situation of the
    present case  the ability to reconsider a decision. The creation of this new
    power confirms the Directors view, expressed in his letter to Mr. Love, that
    there was no explicit power to reconsider his decision to refer the complaint to
    the TPS for hearing. Had this rule been in place at the time, it would have
    been a complete answer to the jurisdictional objection raised by Mr. Love.

[68]

Consequently, while this power was not available
    to the OIPRD at the time it dealt with the Stanleys complaints, it is now
    empowered to reconsider certain decisions mandated under the
PSA
, in accordance with the factors
    enumerated in r. 17.2.

(4)

The Rules of Procedural Fairness

[69]

Given my conclusion that the Director lacked
    authority to take the steps that he did, it is not strictly necessary to
    address the Divisional Courts finding that the rules of procedural fairness
    were infringed and the independence of the OIPRD was compromised. However, I
    would not wish these reasons to be considered as an endorsement of the
    conclusions that were reached. Nevertheless, I would make the following
    observations.

[70]

This litigation was triggered by a mistake. The
    statement given by Constable Howes seems to have been transcribed inaccurately,
    and in a very important way. Although the Stanleys disagree with the ultimate
    decision taken by the Director, they do not dispute that there was a mistake in
    the original transcription.

[71]

For the Director, this mistake was potentially
    very serious, and portrayed the complaints in an entirely different light.
    Concerned about the integrity of his investigation, he was anxious to correct
    any error that investigators in his office might have made, and which may have
    led him into error in assessing the complaints.

[72]

The manner in which this information was brought
    to the attention of the Director raised some eyebrows. It emanated from a
    police force from which the OIPRD was required to maintain its independence. The
    entire situation might have been avoided had the Director advised the Stanleys
    of exactly what had happened. When Mr. Love responded to the Directors letter
    informing the Stanleys of his decision to re-open his investigation, he said:
    The circumstances which caused these inaccuracies to come to your attention
    and your decision to review the completed report are unknown to the
    complainants and raise fairness concerns. The Director did not respond.

[73]

The Director, along with the TPS and Constable
    Howes, brush aside these concerns because Mr. Love did not come right out and
    ask
who
brought the
    inaccuracies to the Directors attention, nor did he follow up with a further
    inquiry. They essentially assert that the factual lacuna was Mr. Loves fault.
    I reject this approach. Mr. Love raised legitimate concerns. He did so in a
    temperate and professional manner. As it turned out, he was on solid legal
    ground. Irrespective of the dictates of procedural fairness, he deserved an
    answer.

[74]

Had the Director advised Mr. Love of exactly
    what happened, it is likely that their dialogue would have continued, perhaps
    to resolution. Litigation may have been avoided. The failure to provide this
    information turned an unusual situation, in which the Director was undoubtedly
    attempting to act in the public interest, into one that quite reasonably
    aroused the suspicions of the Stanleys. This approach must be avoided in the
    future.

F.

Conclusion and disposition

[75]

I would uphold the Divisional Courts decision
    to set aside the Directors decision made on December 10, 2015. However, I
    would set aside the Divisional Courts order requiring the Director to conduct
    a fresh investigation. There would be little point in ordering a third
    investigation now that almost six years have passed since the underlying events
    took place. Memories will have faded or have been tainted by the interview
    process that has already transpired.

[76]

The effect of these reasons is to restore the
    Directors original decision of March 4, 2015, referring the complaint against
    Constable Howes to the Chief of Police for a hearing, pursuant to s. 68(3) of
    the
PSA
.

[77]

While I would return this case to the TPS for
    hearing, the case is not transported back to 2015. The Director now has the
    authority of reconsideration under r. 17. Procedural laws are intended to have
    immediate effect and avoid the strictures of retrospectivity: see
Peel (Police) v. Ontario (Special Investigations Unit
)
, 2012 ONCA 292, 110 O.R. (3d) 536, at
    paras. 71-77;
R. v. R.S
.
, 2019 ONCA 906, at para. 27; and
R. v. Chouhan
, 2020 ONCA 40, 60 C.R.
    (7th) 1, at paras. 186-191. Consequently, there is no barrier to the Director applying
    the new Rules of Procedure to this case.

[78]

The Director was aware of the transcription
    error with respect to Constable Howes statement before formally re-opening his
    investigation. As early as the internal Investigative Review written in April
    or May of 2015 (referred to in para. 22, above), the Director learned of the
    problem. If the Director determines that it is in the public interest to do so,
    he may exercise his discretion under r. 17.2 to reconsider his original
    decision to refer the matter to the TPS for a hearing.

G.

disposition

[79]

The appeal is allowed in part. As no party
    sought costs of the appeal, no order will be made.

Released:
    DW April 15, 2020

Gary
    Trotter J.A.

I
    agree. David Watt J.A.

I
    agree. C.W. Hourigan J.A.





[1]
In concurring reasons, Simmons J.A. would have allowed the appeal
    for different reasons, finding the power to issue supplementary reasons
    implicit in the power to reconsider.



[2]

The Director also relies upon
Barnes v. Ontario (Social
    Benefits Tribunal)
(2009), 96 Admin L.R. (4th) 243 (Ont. Sup. Ct. (Div. Ct.)),
    where the Social Benefits Tribunal held a reconsideration hearing. However, the
    Tribunal had issued rules with respect to reconsideration hearings. The
    decision of the Divisional Court does not address the doctrine of
functus
    officio
. It is unhelpful to the determination of the issue in this case.



[3]

Section (1)(1) provides that 
tribunal
    means one or more persons, whether or not incorporated and however described,
    upon which a statutory power of decision is conferred by or under a statute.


