A recent decision of the Ontario Superior Court of Justice considers discretion to screen out complaints that cannot succeed prior to investigation.
In Anwar v. Ontario (Independent Police Review Director), 2024 ONSC 3150, the Ontario Superior Court of Justice examined a decision of the Independent Police Review Director (the “Director”) to screen out a complaint prior to investigation. The complaint concerned accusations by Mr. Anwar that the Toronto Police Service had failed to adequately investigate his claims of unlawful surveillance and attacks upon him by the Canadian Security Intelligence Service. In a written decision issued by the Director, Mr. Anwar's complaint was found to lack “an air of reality” and deemed frivolous. The Director found that no further investigations were required as it concerned the police's investigations into his claims.
The Court reviewed the reasonableness of the Director's decision in light of the principles set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, including whether the reasons establish an intelligible justification for the decision in a transparent manner and the decisionmaker's reasoning process is internally rational. The Court also noted that its role was limited to ensuring the reasonableness of the Director's decision, not re-investigating the substance of complaint itself.
Affirming the clear and rational reasoning provided by the Director in its decision to screen out the complaint, the Court noted the lack of any evidence or “even a preliminary indication that evidence exists” to justify further investigations into the complaint.
Statutory scheme authorized broad investigative discretion
In this case, the Court acknowledged the Director's broad discretion to decide what complaints to investigate. While the Police Services Act, RSO 1990, c P.15 (since repealed) (the “Act”) required that the Director “review every complaint” (s. 59), it expressly provided the Director with the power to dismiss complaints it viewed as frivolous or vexatious.
Section 60(4) of the Act read:
(4) The Independent Police Review Director may decide not to deal with a complaint made by a member of the public if, in his or her opinion, one of the following applies:
- The complaint is frivolous or vexatious or made in bad faith.
- The complaint could be more appropriately dealt with, in whole or in part, under another Act or other law.
- Having regard to all the circumstances, dealing with the complaint is not in the public interest.
In light of this statutory scheme, and the reasons provided by the Director in screening out the complaint, the Court upheld the Director's decision to deem the complaint frivolous. The Court noted the Director's finding that this did not mean the complaint had been made in bad faith. Instead, because it lacked an “air of reality” to important elements of the complaint, it was viewed as a complaint that simply could not succeed.
Mr. Anwar's application was ultimately dismissed.
Procedural fairness at screening stage
The ability to screen for frivolous or vexatious complaints at a preliminary stage can be a significant tool for administrative bodies in maintaining control over their processes and curbing wasted resources over unmeritorious complaints. However, this case also highlights the importance of procedural fairness in the handling of complaints at all stages of the administrative process.
The duty of procedural fairness owed to complainants is generally limited. In the professional regulatory context, for example, Courts have remarked that the procedural rights afforded to a registrant could exceed those afforded to the complainant since the complainant faces no professional consequences as a result of the complaint (see, for example, discussion in Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629). The inherent right of an individual to make a complaint and to have that complaint reviewed nonetheless requires a level of procedural fairness towards a complainant. At minimum, the reviewing body may consider at the initial in-take stage of a complaint:
- Whether it has jurisdiction to investigate the complaint.
- Whether the complaint contains sufficient detail to initiate an investigation (such as names, dates, places or other information integral to the complaint made).
- Whether the complaint lacks an “air of reality” and is frivolous or vexatious in that it is one that cannot succeed.
It is important to note that not every screening or investigative body may be afforded the broad discretion to screen out complaints noted above. The enabling statute of an administrative body may outline the power to dismiss complaints prior to investigation, and/or may limit any fact-finding discretion at the initial stage of review of a complaint. Criteria for assessing a “frivolous” or “vexatious” complaint may be further defined by regulation, bylaws or policy.
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