Oct 23, 2020

Many regulators are subject to the appointment of an Administrator or Supervisor to take over some or all of their operations. This extraordinary step is reserved for circumstances in which there has been a significant loss of confidence in the regulator or other organization.

In Martin v Ontario Civilian Police Commission, 2020 ONSC 1116, http://canlii.ca/t/j6cdp the Ontario Civilian Police Commission, while conducting an investigation into allegations of misconduct by senior members of the Durham Regional Police Service, made an interim order appointing an Administrator. The appointment was limited to overseeing three discrete areas: disciplinary proceedings, promotions, and secondary employment. The Chief of Police and the Police Services Board sought judicial review.

Some of the points raised were specific to the enabling statute. However, some were of general application. For example, most provisions authorizing the appointment of an administrator have very broad criteria, such as where the relevant Minister believes such an appointment is “appropriate or necessary”. In this case the test for the interim appointment related to whether an emergency existed and whether an interim order is necessary in the public interest. In reviewing these criteria the Court afforded significant deference to the Commission. The Court indicated that there need not be a formal finding related to the presence of an emergency. An apparent existence of concerns, in this case based on seven complaints and polling data from the members of the force indicating a lack of confidence in its leadership, was sufficient to base such a conclusion. The existence of an emergency depended on the context of the legislation. Here, a crisis of confidence in the leadership of the police force was an apparent emergency.

In terms of public interest, the Court said:

I agree with the Board’s submission that there must be a proper factual foundation for any determination that a prescribed action is in the public interest. The grounds for acting in the public interest obviously requires more that reliance on the decision-maker’s whim. The public interest is, nonetheless, a broad term that allows the Commission to take a variety of considerations into account in its decision-making process. The determination of the public interest is a matter of public policy in the true sense of the word and demands a high degree of deference….

The Court was also of the view that fear of interference or reprisal by members of the force in the Commission’s investigation was relevant to whether there was a public interest in the interim appointment.

The Court also held that under this legislation there was no need for procedural fairness in advance of the interim order appointing the administrator. Procedural safeguards after the appointment (e.g., written decision and reasons, access to the materials upon which the decision was based and a right of judicial review) was sufficient.

In upholding the appointment, the Court relied on case law dealing with interim suspension of practitioners in discipline matters.