Ontario Civil

Administrative Law

Judicial review
Standard of review for Civilian Police Commission’s decision was reasonableness

Hearing officer found police constable guilty of disciplinary offence of unsatisfactory work performance. Constable’s appeal to Civilian Police Commission was allowed. Application by city police service for judicial review was allowed. Constable appealed. Appeal allowed. On appeal, court had to determine whether appropriate standard of review was identified and applied on application for judicial review without any deference owed by appellate court to decision of Divisional Court on judicial review. Case law established that standard of review for Commission’s decision was reasonableness while standard of review that Commission had to apply to hearing officer’s decision was correctness for questions of law and reasonableness for other questions. Suggestion that both hearing officer and Commission be subject to standard of reasonableness on appeal or review was not accepted. Apparent paradox that Commission need only be reasonable in being sure that hearing officer was correct on questions of law was restricted to situations where there were more than one reasonable answer to question of statutory interpretation. There was nothing peculiar about reviewing court deferring to tribunal’s assessment of whether decision-maker answered question correctly, as its function was concerned mostly with justification, transparency and intelligibility within decision-making process. Objection that reasonableness standard resulted in no impetus for Commission to determine if hearing officer was correct rested on questionable proposition that it would only be accountable through intense level of judicial scrutiny. In any event, standard of review by which Commission was made answerable was not settled by efficacy but by discerning legislative intent. There was no justification for Commission’s argument that it owed no deference to decision of hearing officer on questions of fact, as existence of statutory power to hold de novo hearing did not mean that correctness was standard of review when that power was not exercised.

Ottawa Police Services v. Diafwila (Aug. 16, 2016, Ont. C.A., K. Feldman J.A., J.C. MacPherson J.A., and B.W. Miller J.A., CA C60683) Decision at 250 A.C.W.S. (3d) 507 was reversed. 270 A.C.W.S. (3d) 205.

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