Under the Ontario Police Services Act, documents
prepared as a result of a public complaint against a police officer
are inadmissible in a civil action. In two recent decisions, the
Divisional Court and the Court of Appeal have reached seemingly
irreconcilable conclusions on the use that can be made of such
information in the context of a lawsuit. The law is currently in an
uncertain state, with potential implications for other areas in
which administrative and court proceedings may overlap.
In Penner v. Niagara (Police Services Board), 
O.J. No. 4046, the Ontario Court of Appeal considered whether
findings made in a police disciplinary proceeding preclude
re-litigating those same issues in a civil action. The plaintiff in
that case had previously filed a complaint under the Police
Services Act alleging that two officers unlawfully arrested
him and that they used unnecessary force. Following a hearing which
lasted several days and included testimony from a number of
witnesses, the complaint was dismissed — based on
specific findings that the officers had reasonable and probable
grounds to arrest, and that they had not used unnecessary force.
Those findings were ultimately upheld by the Divisional Court.
The defendants then brought a successful Rule 21 motion to
strike the civil claim, which raised essentially the same
allegations, on the ground of estoppel. The decision of the Court
of Appeal, which upheld the striking of the claim, makes no
reference to the Police Services Act provisions regarding
Subsequently, in Andrushko v. Ontario, 2011 ONSC 1107,
the Divisional Court heard an appeal, with leave, based on
conflicting decisions at the Superior Court level interpreting the
relevant provisions of the Police Services Act.
Andrushko arose out of the refusal, at an examination for
discovery, to produce a police officer's personnel file,
including any complaints or disciplinary information. After
reviewing the applicable Police Services Act provisions,
the Divisional Court concluded that "confidentiality extends
to both information and documents." In particular, the court
held that both are subject to a "statutory privilege"
which precludes their admissibility in a lawsuit.
In so holding, the court observed that both it and the Court of
Appeal had previously reached the same conclusion regarding a
similar provision contained in the Ontario Regulated Health
Professions Act — holding that complaints against
health professionals, and any related disciplinary information, are
inadmissible in a civil action: M.F. v. Sutherland, 
O.J. No. 2522 (C.A.); Middleton v. Sun Media Corp., 
O.J. No. 1640 (Div. Ct.).
In Andrushko, the refusal to produce the police
officer's personnel file was therefore confirmed to have been
proper. The decision does not refer to Penner. The Supreme
Court of Canada has now granted leave to appeal in
In the meantime, an element of seeming uncertainty has been
introduced into this area of law. Can the doctrine of issue
estoppel override "statutory privilege"? Does
Penner have implications for other statutory complaint
processes which contain similar provisions?
Subject to clarification by the Supreme Court of Canada, there
are other rules which apply to civil claimants seeking police
complaint and disciplinary information. In Mohamed v. Durham
Police,  O.J. No. 1146, as in Andrushko, the
plaintiff sought production of "any public complaint or
discipline files" at the defendant police officers'
examinations for discovery. Nothing was pleaded in this regard,
however, and the plaintiff had no evidence suggesting that any
complaint or discipline history existed.
The court held that, apart from the effect of the Police
Services Act provisions, the questions were properly refused
given the lack of a proper foundation in the statement of claim. As
well, the court held, allegations of a history of misconduct cannot
be pleaded in a "vague and general" manner. Rather, such
allegations require "full particularity,"
"commensurate with their level of seriousness." The
decision in Mohamed is currently under appeal.
Disclosure of complaint and disciplinary information is thus by
no means automatic, even assuming it is admissible. Until that is
clarified, the boundary between complaints and lawsuits against
police will no doubt remain a fertile one for issues to arise.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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