|
Fairness - Variable Degree of Fairness Owed. Carrique v. Leach
In Carrique v. Leach (Ont Div Ct, 2025) the Ontario Divisional Court allowed a JR, this brought by the Commissioner of the Ontario Provincial Police against an IPRD decision against "the direction of the Complaints Director of the Law Enforcement Complaints Agency (“LECA”) ... to impose a penalty or agree to a penalty in respect of a finding, made pursuant to section 71 of the Police Services Act, R.S.O 1990, c.P.15 (“the PSA”), ... [officers] ... had committed discreditable conduct in violation of section 2(1)(a)(xi) of the Code of Conduct, .... in its investigation of a police officer’s complaint that she had been sexually assaulted by another police officer".
Here the court considers the degree of procedural fairness to be accorded to a complainant, here in a police complaint context:[61] The IPRD’s conclusion that the Responding Officers had committed discreditable conduct in their investigation does not reflect the deference to be afforded to choices made in good faith during a police investigation. In Boua v. Office of the Independent Police Review Director, 2024 ONSC 2172, 173 O.R. (3d) 165, at para. 16, the Divisional Court stated:Complainants are entitled to a comparatively low level of procedural fairness with respect to investigations because they are not facing a concrete impact to their rights and interests. It is the police officers who are at risk of findings of misconduct and the resulting consequences. Additionally, significant deference is owed to the procedure chosen by the TPS in its investigation. The law does not require a perfect investigation and courts are reluctant to interfere in an administrative decision-maker's investigative process unless there is bad faith or patent unfairness. [Citations omitted] . Bortolon v. College of Occupational Therapists of Ontario
In Bortolon v. College of Occupational Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court cited a case on the variable degree of fairness owed, here in RHPA matters:[22] In RS v. EF, 2023 CanLII 7337 (ON HPARB), at paras. 77-78, the Health Professions Appeal and Review Board said the following about the level of procedural fairness owed to members of a health profession:77. This Board has previously stated that:Procedural fairness is owed to a professional member in circumstances where the Committee identifies substantive new issues or interprets the issues differently than the member during the course of its investigation, and where the Committee intends to be critical of a member’s practice and to take some action concerning this member. [Citation omitted.] 78. The Board observes that these standards, at a minimum, include providing notice to a member of any new concerns that have been identified by the Committee and providing the member with an opportunity to respond to same when they form a substantial basis for the findings of the Committee, as in the case here. ....
[25] However, while the potential impact of a decision on the member affected is relevant to the required level of procedural fairness, in paragraph 26 of Maini, the court goes on to confirm that the member must none-the-less be given sufficient information to answer the case against him or her:This Court has recognized that “The standard of disclosure at the screening or investigative stage has been held to require adequate notice to ensure that a member has sufficient information to answer the case against him or her. It has also been held that it is adequate at the investigative stage for the member to know the allegations or substance of the complaint against him or her, not all of the information obtained during the course of the investigation.” [Citation omitted.]
|
