1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN WHITE and CITY OF DARTMOUTH, BARRY J. ALEXANDER VANCE MACDONALD and GARY, R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Jamie W.S. Saunders, Trial Division, on June 11, 1991 (in Chambers) DECISION: July 22, 1991 COUNSEL: David W. Fisher, Esq., Solicitor for the Applicant Alison W. Scott, Esq. Solicitor for the Respondents, Police Review Board and Members Philip Chapman, Esq., Solicitor for the Respondent, City of Dartmouth 1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN. and CITY OF, DARTMOUTH, BARRY J. ALEXANDER, VANCE MACDONALD and GARY R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents SAUNDERS, J.: The issue in this case is whether police officer may overturn the decision made against her by the Police Review Board for the reason that the Regulation number by which she was charged did not precisely correspond to the Regulation number for which she was found guilty. Constable Maureen White ("White" or "the applicant") argues that the Nova Scotia Police Review Board erred in finding her guilty of disciplinary default for which she had not been charged. The Board contends that it was fully entitled to do so. BACKGROUND: In February and March, 1990 members of the public wrote to the Chief of Police of the City of Dartmouth to complain about the conduct of Constable White in the course of an investigation into an alleged assault. All three complaints arose from the same incident. Two of the complainants were victims of the alleged assault while the third was parent of one of the victims. The complaints were formalized as required by N.S. Reg. 101/88, s. 6(3)(a), made pursuant to the Police Act, R.S.N.S. 1989, c. 348, s. 7. The substance of the formalized complaints was that Constable White lied to the complainants concerning the investigation and that she treated them in rude and abrupt manner. Constable White was given notice of the allegation against her by Form 11, pursuant to Reg. 16(8), on March 20, 1990. The substance of the allegation was that she "abused authority by, being discourteous or uncivil to any member of the public having regard to all the circumstances; by being rude, abrupt and lying contrary to Section 5(1)(g)(iii), Part 2, Code of Conduct and Discipline of the Regulations made pursuant to the Police act. Following an initial investigation into the allegations, formal disciplinary process was initiated by serving Constable White with Form 12, pursuant to Reg. 16(14). The substance of that notice contained the same words as in Form 11, quoted above. In addition, it was specified that minor penalty would be sought and that the maximum penalty would be reprimand. The next step in the process was final investigation report, prepared as Form 9, pursuant to Reg. 12(3). copy of the report was forwarded to the complainants. While the report does not contain any reference to the specific behaviour of Constable White, the alleged misconduct is described in the wording of Reg. 5(1)(g)(iii): "Abuse of authority by being discourteous or uncivil to any member of the public having regard to all the circumstances." The investigating officer concluded: "After reviewing the evidence find that it indicates that Cst. White has committed an offence under Section 5(1)(g)(iii) of the Police Act and Regulations and have informed the Disciplinary Officer that he should proceed with charges against Cst. Maureen White." The next step in the proceeding was hearing before Inspector Crossley of the Dartmouth City Police Department on June 7, 1990. At this point the allegations of rude and abrupt behaviour seem to have been dropped. The allegations as specified in the report of the Disciplinary Hearing are as follows: "Constable Maureen White, member of the Dartmouth City Police Department was alleged to have committed Disciplinary Default under the Regulations made pursuant to the Police Act by abusing authority, that on February 21st, 1990 at 6:00 P.M., Constable Maureen White, lied or misled Cathy and Alana Faulkner into believeing she had permission of the Chief of Police to be at Meeting, arranged by Constable Richard Gilroy, to discuss the results of an investigation, when indeed she did not, contrary to Section 5(1)(g)(iii), Part Code of Conduct Discipline of the Regulations made pursuant to the Police Act." Constable White was found "guilty of this offence" and the penalty imposed was reprimand. She was represented by counsel at this hearing. Constable White initiated a review of Inspector Crossley's decision before the Police Review Board, pursuant to Reg. 17(1). formal hearing before the Review Board took place October 31, 1990. The issues presented at the opening of the hearing by counsel for the City of Dartmouth, Mr. Moreash, were not framed in terms of specific default provision, but rather: 1. Whether Cst. White lied when she said that she had permission of the Chief of Police to attend the meeting of February 21, 1990? 2. If so, does that constitute disciplinary infraction? Constble White's counsel, Mr. Fisher, made no comment on the specific issues in his opening statement, which immediately followed Mr. Moreash's statement. In his closing statement, however, Mr. Fisher proposed third issue, that the appropriate charge had not been made out. He argued that lying is not component of disciplinary default 5(1)(g)(iii), which is "being discourteous or uncivil to any member of the public, having regard to all the circumstances." Rather, it is component of disciplinary default 5(1)(d)(I): "engages in deceit by (I) wilfully or negligently making or signing false, misleading or inaccurate oral or written statement or entry in any official document or record or otherwise pertaining to official duties." Since the allegation against Constable White was framed in terms of disciplinary default 5(1)(g)(iii), Mr. Fisher submitted that it was not open to the Review Board to find her guilty of any other disciplinary default. Essentially his position was that the Review Board could only consider these questions: 1. Whether Constable White lied? and 2. If so, does that constitute an infraction of disciplinary default 5(1)(g)(iii)? In its written decision dated January 16, 1991, the Police Review Board stated the issues for their decision as follows: 1. Did Constable White lie or deceive the complainants? 2. If Constable White did lie or deceive the complainants, is the nature of the offence disciplinary infraction and is the reprimand imposed appropriate considering all the circumstances? The Review Board answered these questions in the affirmative. Then it considered "the third and final issue [of] whether Constable Maureen White was charged under the appropriate Regulation." The Review Board concluded that the section reference in the charge did not necessarily have to be accurate: "Firstly, this Board is of the opinion that there is no doubt that Constable White knew the nature of the allegations being made against her. At the commencement of the hearing, both Michael Moreash on behalf of the City of Dartmouth, and David Fisher on behalf of Constable White stated the issues for this Board to decide which included the subject matter of the third allegation against Constable White, that being the allegation that she made false and inaccurate statement which was misleading. In the opinion of this Board, the real issue is whether or not Constable Maureen White has had fair and adequate hearing. Specifically, has there been sufficient notice of the hearing as well as the nature of the allegation. The real issue is whether or not notice is clear and definitive so as to particularize the grounds of the complaint so as to enable the person to whom it is directed to know what case he must meet. The key is that the charges against person are made known sufficiently so that the person can present an effective defence." In the result, Constable White was found "guilty of having committed disciplinary default by making false and inaccurate statement and thereby misleading the complainants." This is the wording of disciplinary default 5(1)(d)(I), while the charge was framed in terms of default 5(1)(g)(iii). ISSUE: The applicant submits that she was charged with disciplinary default 5(1)(g)(iii) but found guilty of default 5(1)(d). She challenges the jurisdiction of the Police Review Board to find her guilty of an offense which was not specifically referenced by that particular Regulation section in the charge against her. The Board replies that White was charged with lying and misleading, that she had notice of this specific charge, that this was the issue before the Board, and a reference or citation of a particular default regulation does not necessarily limit the Board's jurisdiction. NATURE AND SCOPE OF REVIEW: This is not an appeal. An application for an order in the nature of certiorari initiates judicial review as opposed to an appeal. Worker's Compensation Board of Nova Scotia v. (unreported), S.C.A. No. 01964, October 5, 1988) referred to by Glube, C.J.T.D. in Hubley v. Worker's Compensation Board of Nova Scotia (unreported, S.H. 74919, April 19, 1991): "Many questions that might properly be considered by court on an appeal are irrelevant to motions for certiorari. Thus despite the court's view that tribunal's decision may be wrong it is beyond the court's power to correct is so long as it is made without jurisdictional error or recorded legal error." The reins of restraint against judicial intervention are cinched even tighter if privative clause is found in the tribunal's empowering legislation. Section 33(3) of the Police Act provides: "The decision of the Review Board shall be final." Such clause was found to be privative clause in Welk v. Saskatchewan Social Services Appeal Board (1985), 1985 CanLII 2564 (SK QB), 23 D.L.R. (4th) 698 (Q.B.), affirmed on this issue though reversed in the result, (1986), 1986 CanLII 3403 (SK CA), 28 D.L.R. (4th) 475 (C.A.), leave to appeal to the Supreme Court of Canada refused May 20, 1986. There is good reason for affirming hands‑off policy. Curial deference is extended to administrative tribunals on account of their specialized purpose, expertise and the speed and efficiency with which they do their work. It is now well established that judicial review will only occur if tribunal has erred by reaching patently unreasonable conclusion to question within its jurisdiction; or it commits simple error in interpreting or applying legislative provision which confers (or limits) its jurisdiction. In the recent decision of the Supreme Court Court in CAIMLAW v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983, La Forest J. stated: "Where, as here, an administrative tribunal is protected by privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.,1979 CanLII 23 (SCC), [1979] S.C.R. 227. [At p. 10031" See as well the comments of Beetz, J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048; and Sopinka, J. in Public Service Alliance of Canada v. Her Majesty the Queen Represented by the Attorney General of Canada (unreported, S.C.C., March 21, 1991) The question of law for me to decide is whether notice of an alleged disciplinary default is defined by referring to the particular regulation cited in the notice; or rather the behaviour described in the content of the notice. must decide whether the issue relates to legislative provision which limits the Police Review Board's powers (in which case simple error would cause the Board to lose its jurisdiction) or whether it is an issue within the Board's jurisdiction. To maintain such distinction requires functional analysis as proposed by Beetz, J. in Bibeault, supra and applied by Sopinka, J. in Public Service Alliance of Canada, supra. Five factors are to be considered. 1. Wording of the enactment conferring jurisdiction on the administrative tribunal The wording of the Police Act and the Regulations pursuant to it does not expressly require that disciplinary default be set out in the notice by citing specific regulation defining the default. Form 12, which is essentially the notice that initiates disciplinary procedure, requires the person completing the form to insert the appropriate section from the Discipline Code in the space indicated. This direction is in footnote on Form 12. It is noteworthy that Form 12 also has footnote giving direction regarding whether major or minor penalty will be sought, but there is also an express requirement in Regulation 5(2) that designation of the class of penalty must be contained in the notice. The fact that one footnoted direction is expressly covered in the legislation while another is not suggests that Form 12 directions by themselves are not legislative. The history of the Regulations pursuant to the Police Act also offer an aid to interpretation. Predecessor regulations made pursuant to the Police Act, S.N.S. 1976, c. specifically required that the precise disciplinary default be set out in the charge: "(13)(l) If the Chief of Police or his delegate considers that disciplinary charge should be laid, he shall prepare charge in Form setting out therein the precise disciplinary default alleged to have been committed, the maximum penalty applicable having regard to all the circumstances, and the date, time, and place of the first hearing. (emphasis mine. Quoted in Ans v. Paul (1980), 61 N.S.R. (2d) 256, at p. 258) The present Police Act and Regulations omit this requirement. 2. Purpose of the statute creating the tribunal. The Police Act does not expressly set out its purpose. However, it is obvious from its broad scope that the Act clearly covers both public protection from abuse of police power, and protection of police officers from unwarranted disciplinary action. While this dual purpose offers no clear guidance to the interpretive issue facing me, it does suggest that fair and proper balance be maintained between these two laudable objectives. 3. The reason for the existence of the Police Review Board This can be gleaned from the powers given to the Review Board in the Police Act: 29 The Review Board may conduct hearings into (a) complaints referred to it in accordance with the regulations; (b) matters of internal discipline referred to it in accordance with the regulations; and (c) the suspension of member of municipal police force who has been suspended with pay on the application of the chief officer or the Commission. 1985, c. 33, s. 17. Parties to proceedings 31 At hearing of the Review Board, (a) where the review is the result of or involves complainant, the complainant; (b) member of municipal police force who is the subject of oomplaint or disciplinary proceedings; (c) the chief officer; (d) the board; (e) any person who can demonstrate personal interest in the proceedings; and (f) the Solicitor General, may be parties to the proceedings. 1985, c. 33, s. 17. Hearing de novo 32 hearing by the Review Board shall be hearing de novo and the parties to the proceeding may (a) appear and be heard and be represented by counsel; and (b) call witnesses and examine or cross‑examine all witnesses. 1985, c. 33, s. 17. Powers of Review Board at hearing 33 (1) At hearing under this Act, the Review Board may (a) make findings of fact; (b) dismiss the matter; (c) find that the matter under review has validity and recommend to the body responsible for the member of the municipal police force what should be done in the circumstances; (d) vary any penalty imposed including, notwithstanding any contract or collective agreement to the contrary, the dismissal of the member of the municipal police force or the suspension of the member with or without pay; (e) affirm the penalty imposed; (f) substitute finding that in its opinion should have been reached; (g) award or fix costs where appropriate; and (h) supersede disciplinary procedure or provision in contract or collective agreement. Requirements for decision (2) The decision of the Review Board shall be in writing and provide reasons therefor, and shall be forwarded to persons entitled to be parties to the proceeding. Decision is final (3) The decision of the Review Board shall be final." From these provisions it is clear that the Review Board exists as final, specialized forum in which matter of complaint against police officer or internal discipline is fully heard de novo before an independent decision making body. The broad powers of the Review Board at the hearing in s. 33, and in particular s. 33(h) which allows the Review Board to "supercede disciplinary procedure or provision in contract or collective agreement", favours an interpretation that enhances rather than restricts the powers of the Police Review Board. It appears to me to be inconsistent with these expressly conferred powers if the direction in the footnote to Form 12 were interpreted as legislative provision limiting the tribunal's powers. Rather, regard it as merely procedure in the disciplinary process which the Board has express legislative authority to supercede, by virtue of Section 33(1)(h). 3. The area of expertise of the members at the Police Review Board. The Police Act and Regulations pursuant to it do not specify the qualifications for membership on the Police Review Board. This Board is called on to make decisions regarding matters of discipline and complaints against the police force. On this factor, statutory interpretation which might recognize the Board's particular expertise, does not arise. 5. The nature of the problem before the Tribunal. The applicant argues that the very nature of disciplinary proceedings renders the process quasi‑criminal thereby requiring strict adherence to procedural safeguards. They rely on Storm v. Board of Police Commissioners (Halifax) (1987), 78 N.S.R. (2d) 365; and Perrott v. Storm (1985), 1985 CanLII 3068 (NS SC), 18 D.L.R. (4th) 473. Those cases are distinguishable. They dealt with clear violations of express regulations. These and other cases upon which the applicant relies involve procedural defect which is both material and important to the whole notion of whether natural justice was provided. Whether procedural provision is mandatory or simply directory depends on its importance to the proceedings. The more important the provision the more likely the individual will be prejudiced by its breach. In this case the particular section number is immaterial as the record clearly discloses that White was fully apprised of the circumstances giving rise to the complaint and fully prepared, with counsel, to defend herself. Interference by certiorari will not be countenanced for mere trivial or technical oversights. Martineau v. Matsque Institute Disciplinary Board (No. 2) (1979), 1979 CanLII 184 (SCC), 106 D.L.R. (3d) 385 (S.C.C.) (2d). To grant certiorari here would be tantamount to telling these complainants that Constable White's conduct was excused on the basis of technicality. In the case before me am dealing with direction in footnote contained in the Form 12 notice. Regulation 5(2) specifies that Form 12 is the notice by which police officer is informed of an allegation of disciplinary default. The form itself provides for the particular default citation as well as the substance of that default. However, it is not clear whether both the citation and the conduct must be set out in the notice. The applicant argues that the particular regulation number must be cited as an absolute requirement. do not agree as to do so would require an interpretation that the footnoted directions at the bottom of Form 12 are in effect regulations relating to disciplinary proceedings. The applicant says she was charged under the wrong regulation. That instead of Form 12 specifying disciplinary default of being discourteous or uncivil to members of the public "by being rude, abrupt and lying while investigating ." contrary to Section 5(1)(g)(iii) the form should instead have properly charged her under Regulation 5(1)(d), the so‑called deceit section. After considering all five of these factors and applying them to the circumstances of this case, cannot agree. Notice of disciplinary default need not only be particularized by reference to the specific regulation. It may 'be sufficiently' drawn to the attention of the member by describing the alleged misconduct which forms the subject of the complaint. Constable White had been assigned to investigate two alleged assaults, the first against Ms. Faulkner and the second against Michael Fisher. Alana Faulkner, Cathy Faulkner and Michael Fisher weren't satisfied with the investigation and complained that Constable White had conducted herself in an unprofessional manner. They alleged that she lied to them and failed to interview all witnesses and was rude and abrupt. The allegations which were the subject of the first two complaints were dismissed by the disciplinary officer. That left only the allegation against White that she lied regarding meeting held February 21, 1990 in which she told these people that she had the permission of the Chief of Police to be present when in fact she did not. The nature of White's deception is best captured in this portion of the Board's decision: "At the commencement of the meeting, Mrs. Faulkner immediately took objection to Constable White's presence. Constable Gilroy immediately responded by saying that all parties present were adults and the purpose of the meeting was simply to set out the facts. In addition, during the conversation concerning Constable White's attendance at the meeting, she stated, 'The Chief gave me permission to be here'. Once it was indicated to the complainants that Chief Trider had given permission for Constable Maureen White to be present, that ended the discussion and the meeting proceeded. The rest of the meeting was relatively uneventful. Constable Giroy simply explained to the complainants the nature of the alleged assaults, the evidence that had been gathered, and why an assault charge would not be laid. However, following the meeting complaint was made to Chief Trider that he should not have given his permission to Constable White to be at the meeting. It was at this time that the complainants learned that Chief Trider had not given his permission for Constable White to be at the meeting. Thus the third complaint arose against Constable White for having deceived the complainants into believing that she had permission from Chief Trider to be present at the meeting when in fact she did not have permission. The first issue the Board has to decide is whether or not Constable Maureen White made false, misleading or inaccurate statement thereby deceiving the complainants. In the opinion of the Board, the facts are clear that Constable Maureen White did make false and misleading statement by stating to the complainants that she had the permission of Chief Trider to be present at the meeting, when in fact she did not have that permission. .What was said by Constable White was said to member of the public. It was said to member of the public in an official situation in order to justify her presence at the meeting. It may have been said to avoid confrontation but this does not justify what was said. By stating she had the permission of Chief Trider to be present, it attributes words to Chief Trider which were not spoken by him. As result it caused Chief Trider to be placed in position where he had to explain to the complainants that he did not give the permission which was alleged to have been given. This placed Chief Trider in an awkward position. In conclusion, this Board is of the opinion that the statement made by Constable Maureen White was false, misleading and inaccurate." After referring to the varying impugned conduct (being rude, and abrupt, and lying) the Police Review Board noted that it is sometimes difficult to properly categorize the facts of situation in one all‑encompassing disciplinary default. The Board interpreted its own jurisdiction as permitting the substitution of the appropriate default section. agree. White had ample and continuous notice of the nature of the allegations against her. She was represented by counsel. The Police Review Board conducted hearing de novo and reached the same conclusion as the investigating officer regarding Constable White's "guilt" of the alleged misconduct, specifically that she "lied to or misled" the complainants. The penalty imposed by the senior disciplinary officer was mere reprimand. That penalty was upheld by the Board. No unfairness or breach of natural justice was occasioned when the Review Board found that the elements of lying or misleading fell within the default particularized by Regulation 5(1)(d) rather than 5(1)(g)(iii) as typed on the notice form. find the Board was free to substitute what it felt to be the "proper" section number and conclude, in the circumstances, that Constable White was guilty of the disciplinary default referred to in 5(1)(d). The footnote direction to refer to specific offense is technical requirement that is directory only. footnote is hardly place where one would expect to see mandatory procedural requirement. It is obvious from review of all of the forms which were completed, including Form 12, that the allegations made against White included the allegation that she had lied to the complainants during the course of the investigation. It is clear from review of the cross‑examination of witnesses by counsel for the applicant, as well as the direct examination of the applicant that the focus of the evidence was whether she had lied at that meeting and whether there was "any intent to deceive" (Transcript, p. 109, lines 21 25). The failure to refer to what the Police Review Board considered the "proper" offense in the original complaint was a technical defect only, and in no way materially affected the procedural fairness of these proceedings. There is no denial of natural justice if the party has had reasonable notice of the substance of the allegations against her or him and been given the opportunity to respond (Rockandel v. City of Vancouver (1967), 1966 CanLII 445 (BC CA), 59 D.L.R. (2d) 304). For all of these reasons there is nothing which persuades me that the Board's decision is patently unreasonable. I dismiss White's application with costs to the respondents. J. Halifax, Nova Scotia July 22, 1991 1991 S.H. No. 76225 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CONSTABLE MAUREEN WHITE and CITY OF DARTMOUTH, BARRY J. ALEXANDER, VANCE MACDONALD and GARY R. MILLER, Chairman and Members respectfully of the Police Review Board and the POLICE REVIEW BOARD (NOVA SCOTIA) Respondents DECISION OF SAUNDERS, J.
A complaint was lodged against the applicant police officer that she had been discourteous to the victim of a sexual assault and that she had lied about being granted permission to attend a meeting held to investigate the assault. The applicant was given written notice of the substance of both allegations according to the disciplinary procedure set out in the regulations made pursuant to the Police Act, but in the space provided for the citation the notice cited only the regulation which dealt with the offense of being discourteous. A hearing before an inspector of the Police Department resulted in the applicant being found guilty of the offense of lying. She initiated a review by the Police Review Board which concluded that the section reference in the charge did not have to be accurate. The applicant brought this proceeding for judicial review and submitted that the Board's jurisdiction was limited by the citation of a particular regulation and to finding her guilty of the behaviour described in the regulation cited. Dismissing the application, that the failure to cite what the Board considered the proper offense in no way materially affected the procedural fairness of the hearings or limited the Board's jurisdiction. The applicant had complete notice of the nature of the allegations against her and was represented by counsel at the Board hearing. Certiorari will not issue for mere technical or trivial oversights and there was nothing patently unreasonable about the decision such as would warrant judicial intervention. On appeal