SUPREME COURT OF Nova Scotia
Citation: Fraser v. Sampson, 2023 NSSC 355
Date: 20231103
Docket: Syd. No. 522468
Registry: Halifax
Between:
Gary Fraser
Applicant
v.
Christopher Sampson, Nova Scotia Police Complaints Commissioner,
Patrick Curran and Attorney General of Nova Scotia
Respondents
__________________________________________________________________
Decision on Motions
(motions for stay and for dismissal)
__________________________________________________________
Judge: |
The Honourable Justice Robin Gogan |
Heard: |
July 4, 2023, in Sydney, Nova Scotia |
Oral Decision: |
November 3, 2023 |
Counsel: |
Andrea Rizzato, for the Applicant Don Fraser, for Respondent Sampson Myles Thompson, for the Respondent Complaints Commissioner Jeremy Smith, for the Respondent AG of Nova Scotia |
By the Court (Orally):
Introduction
[1] This is a decision on competing motions brought in a judicial review proceeding. It involves consideration of the legislative scheme that governs complaints against police under the Police Act, SNS 2004, c. 31, as amended (the “Act”).
[2] Constable Gary Fraser seeks judicial review of a decision of Patrick Curran, in his capacity as the Nova Scotia Police Complaints Commissioner (the “Commissioner”). The decision under review is dated February 17, 2023. In it, only one complaint against Fraser continued to the Police Review Board (the “Board”). Pending judicial review, Fraser seeks a stay of the Commissioner’s decision. In the absence of any contest, an interim stay of proceedings was granted on May 3, 2023.
[3] The Commissioner seeks dismissal of the judicial review proceeding on the basis that it is premature.
[4] The motions were heard on July 4, 2023. I reserved decision at that time. Today, I am prepared to provide the parties with an oral decision on the motions.
Background
[5] I begin with brief background to the motions.
[6] The parties have filed voluminous materials supporting the judicial review and the consequent motions. I have considered all the material. I also consider the evidence of Fraser (affidavit dated March 24, 2023 (Exhibit 1), and supplemental affidavit dated June 13, 2023 (Exhibit 2), and the evidence of the Commissioner (affidavit dated May 30, 2023 (Exhibit 3) supplemental affidavit dated June 9, 2023 (Exhibit 4) and his cross-examination). Here, I provide only a summary of the parties and the main points in contention as context for what follows.
[7] The origin of the main proceeding lies with a police investigation of Christopher Sampson by the Cape Breton Regional Police Service. Fraser was the investigating officer. On September 8, 2021, Sampson filed a complaint against Fraser containing a multitude of misconduct allegations. After internal investigation of the complaints, it was found that Fraser had committed a number of disciplinary defaults and penalties were imposed. The decision on the internal investigation was made on February 8, 2022.
[8] On March 8, 2022, Sampson filed a Notice of Review, seeking referral of his complaints to the Board. A review was conducted by the Commissioner. On February 17, 2023, the Commissioner decided that all but one of Sampson’s complaints would be dismissed (the “Decision”). One complaint, referred to as “Allegation 8”, would continue to the Board for a hearing. The Commissioner cited s. 74(4) of the Act. Notice was sent to the Chief of the Cape Breton Regional Police Service. Detailed reasons were sent to Sampson.
[9] Fraser now seeks judicial review of the Commissioner’s decision and a stay of the referral pending that review. He asserts that the Commissioner’s review was unfair and procedurally inadequate. He also believes that any hearing before the Board will be unfair because of bias or a reasonable apprehension of bias.
[10] The Commissioner disputed Fraser’s allegations, explaining: (1) the administrative processes in place 2006, (2) the reason for any delay in rendering his decision, and (3) some details about his benefit package. The Commissioner was extensively cross-examined at the motion hearing, addressing a variety of topics related to the process he employs to carry out his mandate under the Act.
Issues
[11] The two motions before the Court are closely related. Fraser seeks a stay of proceedings pending judicial review of the Commissioner’s decision. The Commissioner says that the application for judicial review must be dismissed. The real issue is whether this judicial review application is premature.
Positions of the Parties
[12] Before moving to an analysis of the issues here, I will briefly review the positions of the parties.
The Applicant Fraser
[13] Fraser submits that (1) his application for judicial review should not be dismissed, and (2) a stay of the decision under review is appropriate and should be granted.
[14] With respect to the stay, Fraser relies on Civil Procedure Rule 7.29 which permits a stay pending judicial review. Fraser also cites the Judicature Act, RSNS 1989, c. 240, as well as a number of authorities that have applied the well known test in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1SCR 311 (see Clyde Bergemann Canada Ltd. v. Lorneville Mechanical Contractors Ltd., 2018 NSCA 14, Delorey v. Strait Regional School Board, 2012 NSSC 227, Cape Breton Regional Municipality v. Nova Scotia (Human Rights Commission), 2013 NSSC 41, and Nowlan v. Chisholm, 2021 CarswellNS 267).
[15] Fraser also filed a written submission in reply to the Commissioner’s position. In response, Fraser says that the decision under review is a final decision that is subject to judicial review and cites the decision in Dias-Roderiguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221.
[16] Further, Fraser says that exceptional circumstances exist requiring judicial review of the Commissioner’s decision. On this point, he cites Theilmann v. The Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2020 MBCA 8, which considered what may constitute exceptional circumstances, such as hardship, waste, delay, fragmentation, case strength, and statutory context.
The Nova Scotia Police Complaints Commissioner
[17] The Commissioner moves for dismissal of: (1) the judicial review application on the basis that the review sought is premature, and (2) the stay motion on the basis that there are no serious issues to be tried. The administrative process of the Board must be permitted to proceed and conclude before judicial review is pursued. The Commissioner argues that the decision to refer a complaint to the Board pursuant to s. 74(4) of the Act is an interlocutory decision. Under s. 78 of the Act, the applicant is entitled to a de novo hearing before the Board. Permitting judicial review of the Commissioner’s decision violates the principle of non-interference with on-going administrative proceedings.
[18] The Commissioner cited a number of authorities including the recent decision of the British Columbia Court of Appeal in Chu v. British Columbia (Police Complaint Commissioner), 2021 BCCA 174.
Christopher Sampson
[19] Sampson agrees with the Commissioner that the application for judicial review is premature and must be dismissed.
The Attorney General of Nova Scotia
[20] The Attorney General takes no position on these motions.
Analysis
[21] There is no dispute on the basic facts supporting these competing motions. Neither is there controversy over the test that governs the exercise of discretion involved in granting a stay of proceedings. The real issue is whether judicial review lies in the circumstances here.
[22] The Commissioner argues that a general rule exists against judicial review of interim or non-final administrative decisions. Absent exceptional circumstances, an applicant must exhaust all levels of administrative procedure before seeking a remedy from the Court. The burden is on the party invoking exceptional circumstances.
[23] The Commissioner relies on an extensive list of authorities and on the legislative scheme that governs complaints under the Act. The process is well covered in the parties’ written submissions. I would only note here that the key parts of the process are found at sections 71, 72, 74, 78 and 79. Section 71 describes the beginning of the complaint process. Section 72 allows for the outcome of the initial stage to be reviewed. Under s. 72(2), the second stage in the process involves a review by the Board. This review can be requested by either party to the complaint. If review is requested, the complaint must first go to the Commissioner (s. 72(2)).
[24] I pause here to note that the language of s. 72(2) refers to the complaint being reviewed by the Board. It is significant that the legislative framework contemplates that a complaint goes from the initial stage of review by the Chief Officer of the police department to review by the Board.
[25] If a party requests Board review, under s. 72(2), the complaint must stop first with the Commissioner who exercises the powers given under s. 74. Section 74 requires the Commissioner to attempt to resolve the complaint. The Commissioner has the power to investigate to resolve the complaint. If efforts to resolve are unsuccessful, the complaint continues its way to the Board, unless the Commissioner is satisfied that it is: (1) frivolous, (2) vexatious, (3) without merit, or (3) an abuse of process.
[26] Therefore, I take from the language of the Act, that any complaint is first reviewed by the Chief Officer of the police department and then, on request, by the Board. The review by the Chief Officer and the hearing before the Board represent opposite ends of the process spectrum. The Act refers to the initial review being conducted in an “informal manner”. In contrast, under s. 79, the Act contemplates any complaint under review by the Board being the subject of a formal hearing. At that stage, the Board has broad powers to dispose of the complaint, including the power to determine all questions of fact and law.
[27] The place of the Commissioner is found between these two points. The Commissioner has no authority to stop a complaint from proceeding to Board hearing, as requested, absent one of two things; (1) resolution of the complaint, or (2) a finding that the complaint is frivolous, vexatious, without merit or an abuse of process. Unless: (1) resolved, or (2) screened out under s. 74, the complaint continues to a hearing before the Board. Section 79(3) provides that the decision of the Board is final. It would seem that the Commissioner’s resolution and screening decisions are also final decisions as they serve to end the process.
[28] In my view, the complaint process established in the legislation provides the Commissioner with the power to screen out complaints from the process. But it does not contemplate the Commissioner having any authority or decision-making power beyond that. The Commissioner does not decide to send a complaint to the Board. That authority is not his in the overall complaints process.
[29] The legislative scheme is the context for the issues now in dispute.
[30] I have considered the cases cited by the parties. I find the decisions of the British Columbia Court of Appeal offered by Fraser and the Commissioner to be helpful but largely distinguishable from present circumstances. There appear to be enough differences between the British Columbia process and the Nova Scotia process to limit the application of these authorities. I observe that the Nova Scotia process is much more streamlined in comparison.
[31] I have reviewed the decisions cited by the Commissioner in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, and Nova Scotia (Securities Commission) v. Potter, 2006 NSCA 45, as well as those in Taylor v. Nova Scotia (Attorney General), 2019 NSSC 292 and Mercier v. Nova Scotia (Police Complaints Commissioner), 2014 NSSC 79. In keeping with these authorities, I conclude that the gatekeeping function of the Commissioner does not constitute a final decision subject to judicial review unless a decision is made to screen out the complaint at this stage, ending the process. If no such decision is made, the complaint process is not final until the conclusion of the Board review.
[32] I consider that there is some discretion to intervene in exceptional circumstances. In the end, having reviewed the parties’ extensive submissions and considering the evidence on the motions, I am not persuaded that exceptional circumstances exist requiring judicial review at this stage. While Fraser has articulated a number of concerns, I conclude that the these do not outweigh the overarching consideration that the Board should have the opportunity to determine the issues, provide a decision with reasons, subject then to judicial review.
Conclusion
[33] For the reasons given, I dismiss the application for judicial review of the Commissioner’s decision dated February 17, 2023. The interim stay of proceedings granted on May 3, 2023, ends immediately. The process shall now unfold as contemplated by the Act.
[34] I would ask counsel for the applicant to draft the Dismissal Order.
[35] Any party wishing to be heard on costs may submit a brief position in writing within ten days.
Gogan, J.