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Community Safety and Policing Act, 2019

ONTARIO REGULATION 404/23

ADJUDICATION HEARINGS

Consolidation Period: From March 25, 2024 to the e-Laws currency date.

Note: THIS REGULATION IS NOT YET IN FORCE. It comes into force on April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force.

Last amendment: 123/24.

Legislative History: 123/24.

This is the English version of a bilingual regulation.

CONTENTS

PART I
INTERPRETATION AND APPLICATION

1.

Interpretation

2.

Application of Regulation

3.

Application of Statutory Powers Procedure Act

PART II
GENERAL

Powers and Duties of Commission Chair

4.

Appointment of adjudicator

5.

Filling vacancy

6.

Joint proceedings, etc.

Powers and Duties of Adjudicator

7.

Powers, general

8.

Duties, general

9.

Dismissal of proceeding without adjudication hearing

10.

Where joint proceedings, etc.

11.

Notice of proceeding

12.

Effect of non-attendance at proceeding after due notice

13.

Orders re documents etc.

14.

Non-compliance

15.

Alternative dispute resolution

16.

Extension of deadlines for document submission

17.

Communication with adjudicator

18.

Absence of public, orders

Pre-hearing Conferences

19.

Appointment of pre-hearing conference adjudicator

20.

Purposes of pre-hearing conference

21.

Powers of pre-hearing conference adjudicator

22.

Absence of public

23.

Confidentiality

24.

Documents to be provided

Motions and Motion Hearings

25.

Adjudicator to hear motion

26.

When motion may be brought

27.

Bringing a motion

28.

Response to motion

29.

Cross-examination, motion

Documents

30.

Production of documents

31.

Request for documents

32.

Reliance on documents

33.

Limitations on use, disclosure

34.

Production of documents from third parties

Service of Documents

35.

Service required

36.

Methods, when effective

37.

Affidavit of service

Witnesses

38.

Witnesses

39.

Summons to witness

40.

Rules of examination

41.

Expert witness, duty

42.

Reliance on expert

43.

Expert witness, report

44.

Expert witness, testimony

Records

45.

Recording of oral evidence

46.

Transcript

Costs

47.

Costs

PART III
DISCIPLINARY MEASURES

48.

Application of Part

49.

Manner of proceedings

50.

Applicant’s materials

51.

Responding materials

52.

Pre-hearing conference

53.

Merits hearing

PART IV
DEMOTION OR TERMINATION OF EMPLOYMENT

54.

Application of Part

55.

Manner of proceedings

56.

Applicant’s materials

57.

Responding materials

58.

Pre-hearing conference

59.

Merits hearing

PART IV.1
EXPUNGEMENT OF EMPLOYMENT RECORDS

59.1

Application of Part

59.2

Manner of proceedings

59.3

Applicant’s materials

59.4

Responding materials

59.5

Pre-hearing conference

59.6

Merits hearing

PART V
SUSPENSION WITHOUT PAY

60.

Application of Part

61.

Manner of proceedings

62.

Applicant’s materials

63.

Responding materials

64.

Pre-hearing conference

65.

Merits hearing

 

Part I
Interpretation and Application

Interpretation

1. (1) In this Regulation,

“adjudication hearing” means, in respect of an application under section 201, 202 or 210 of the Act, all proceedings in respect of the application, which may include a pre-hearing conference, motions hearing or merits hearing, and any other steps taken in respect of the proceedings; (“audience décisionnelle”)

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, the definition of “adjudication hearing” in subsection 1 (1) of the Regulation is amended by striking out “201, 202 or 210” and substituting “201, 202, 207 or 210”. (See: O. Reg. 123/24, s. 1 (1))

“adjudicator” means, subject to subsection (2), an adjudicator who is a member of the roster of adjudicators maintained by the Arbitration and Adjudication Commission; (“décisionnaire”)

“appointed” means appointed by the Commission Chair; (“nommé”)

“document” includes information stored or recorded by means of any device, including written or pictorial communications, audio or visual recordings and electronically stored data; (“document”)

“merits hearing” means a hearing in respect of the merits of an application under section 201, 202 or 210 of the Act; (“audience au mérite”)

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, the definition of “merits hearing” in subsection 1 (1) of the Regulation is amended by striking out “201, 202 or 210” and substituting “201, 202, 207 or 210”. (See: O. Reg. 123/24, s. 1 (2))

“motion hearing” means a hearing in respect of a motion related to a merits hearing; (“audience d’une motion”)

“pre-hearing conference” means a meeting in respect of a merits hearing that is held before the commencement of that hearing; (“conférence préparatoire à l’audience”)

“pre-hearing conference adjudicator” means an adjudicator appointed to hold a pre-hearing conference. (“décisionnaire chargé d’une conférence préparatoire à l’audience”) O. Reg. 404/23, s. 1 (1).

(2) If an adjudicator’s name is removed from the roster of adjudicators after being appointed to hold a pre-hearing conference or a merits hearing but before the conference or hearing has concluded, the adjudicator shall be deemed to continue to be a member of the roster of adjudicators, but only for the purposes of concluding the proceeding and, if applicable, making a decision, and for no other purpose. O. Reg. 404/23, s. 1 (2).

(3) For the purposes of this Regulation, a proceeding in an adjudication hearing is held electronically if it is held by telephone or video conference or some other form of electronic technology allowing persons to hear one another. O. Reg. 404/23, s. 1 (3).

Application of Regulation

2. This Regulation applies to adjudication hearings.

Application of Statutory Powers Procedure Act

3. (1) For the purposes of this Regulation, a reference in the Statutory Powers Procedure Act to a tribunal or the members of a tribunal shall be read as a reference to an adjudicator appointed under the Community Safety and Policing Act, 2019.

(2) Sections 4.1, 4.2, 4.2.1, 4.3, 4.4 and 4.5, subsection 4.6 (6), sections 4.7, 4.8, 5.1, 5.2, 5.3, 5.4, 6, 7 and 9.1, subsection 12 (2) and sections 16.2, 17.1, 21.2, 25.0.1 and 25.1 of the Statutory Powers Procedure Act do not apply in respect of adjudication hearings.

Part II
General

Powers and Duties of Commission Chair

Appointment of adjudicator

4. (1) Where the Act permits a chief of police, another police officer, a police service board or the Minister to apply to the Commission Chair to appoint an adjudicator to hold a hearing, the chief, officer, board or Minister, as applicable, may apply to the Commission Chair in writing, setting out the information required under this Regulation.

(2) Upon receiving an application under subsection (1), the Commission Chair may,

(a) appoint a single adjudicator to hold a merits hearing; or

(b) if the information required to be submitted is incomplete or there is some other technical defect in the application, decide not to appoint an adjudicator.

(3) A Commission Chair who decides to appoint an adjudicator under clause (2) (a) shall, as soon as possible, give notice in writing to all parties to the hearing of the appointment and the day on which the adjudicator was appointed.

(4) A Commission Chair who decides not to appoint an adjudicator under clause (2) (b) shall give notice of the decision to the party who applied to have an adjudicator appointed and shall set out in the notice the reasons for the decision.

(5) Any notice that the Commission Chair is required to give under this section may be given on behalf of the Commission Chair by the staff of the Arbitration and Adjudication Commission.

Filling vacancy

5. If an appointed adjudicator becomes unable, for any reason, to fulfil their obligations as adjudicator, the Commission Chair shall appoint another adjudicator as soon as possible to fulfil the obligations and shall advise the parties of the appointment.

Joint proceedings, etc.

6. If two or more applications under subsection 4 (1) involve the same or similar questions of fact or law, the Commission Chair may, if the parties consent,

(a) combine the adjudication hearings or any parts of them;

(b) assign an adjudicator to hold the merits hearings at the same time;

(c) direct that the merits hearings be held one immediately after the other; or

(d) stay one or more of the adjudication hearings until after the determination of another one of them.

Powers and Duties of Adjudicator

Powers, general

7. (1) An appointed adjudicator may exercise any of the adjudicator’s powers under the Act on their own initiative or at the request of a party, unless otherwise specified in the Act, this Regulation or applicable provisions of the Statutory Powers Procedure Act.

(2) If an issue that is not addressed by the Act, this Regulation or applicable provisions of the Statutory Powers Procedure Act arises in respect of a proceeding, the adjudicator appointed to hold the proceeding shall determine the process for addressing the issue in such manner as the adjudicator considers to be just.

Duties, general

8. (1) An appointed adjudicator shall, as part of holding any proceeding, accommodate any party, representative, witness or support person in accordance with the Human Rights Code.

(2) An appointed adjudicator shall be guided by the following principles:

1. The adjudicator should seek to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

2. The adjudicator should allow the parties to participate effectively in the process.

3. The adjudicator should ensure that the process for resolving disputes between parties is proportionate to the importance and complexity of the issues in the proceeding.

(3) Despite subsection 4 (1) of the Statutory Powers Procedure Act, an appointed adjudicator shall not consent to the waiving of a procedural requirement under that provision unless the adjudicator has first considered the impact that the waiver would have on expediency and efficiency.

(4) An adjudicator appointed to hold a proceeding shall take steps to ensure that the proceeding is concluded as soon as reasonably possible after it begins.

Dismissal of proceeding without adjudication hearing

9. For greater certainty, subsections 4.6 (1) to (5) and (7) of the Statutory Powers Procedure Act apply in respect of an adjudicator appointed to hold a merits hearing, and the reference in subsection 4.6 (1) of that Act to “subsections (5) and (6)” shall be read as “subsection (5)”.

Where joint proceedings, etc.

10. (1) Subject to subsection (2), if the Commission Chair has taken an action described in clause 6 (a), (b), (c) or (d) in respect of two or more applications, an adjudicator appointed to hold a merits hearing in respect of any of the applications may order that the merits hearing be continued as if no action had been taken by the Commission Chair under section 6.

(2) Subsection (1) applies if the adjudicator is of the view that the action taken by the Commission Chair is unduly complicating or delaying the merits hearing or causing prejudice to a party.

Notice of proceeding

11. (1) The adjudicator appointed to hold a proceeding shall give reasonable notice of the proceeding to the parties.

(2) A notice of a proceeding shall include a reference to the statutory authority under which the proceeding will be held.

(3) A notice of a proceeding to be held in person shall include the following:

1. A statement of the time, place and purpose of the proceeding, and details about the manner in which the proceeding will be held.

2. A statement that if the party notified does not attend at the proceeding, the adjudicator may proceed in the party’s absence and the party will not be entitled to any further notice in the proceeding.

3. A statement that the manner in which the proceeding will be held may be modified in accordance with this Regulation.

(4) A notice of a proceeding to be held in writing shall include the following:

1. A statement of the date and purpose of the proceeding, and details about the manner in which the proceeding will be held.

2. A statement that if the party notified does not participate in the proceeding in accordance with the notice, the adjudicator may proceed without the party’s participation and the party will not be entitled to any further notice in the proceeding.

3. A statement that the manner in which the proceeding will be held may be modified in accordance with this Regulation.

(5) A notice of a proceeding to be held electronically shall include the following:

1. A statement of the time and purpose of the proceeding, and details about the manner in which the proceeding will be held.

2. A statement that if the party notified does not participate in the proceeding in accordance with the notice, the adjudicator may proceed without the party’s participation and the party will not be entitled to any further notice in the proceeding.

3. A statement that the manner in which the proceeding will be held may be modified in accordance with this Regulation.

Effect of non-attendance at proceeding after due notice

12. (1) Where notice of a proceeding to be held in person has been given to a party to the proceeding in accordance with this Regulation and the party does not attend at the proceeding in accordance with the notice, the adjudicator appointed to hold the proceeding may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.

(2) Where notice of a proceeding to be held either in writing or electronically has been given to a party to the proceeding in accordance with this Regulation and the party does not participate in the proceeding in accordance with the notice, the adjudicator appointed to hold the proceeding may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding.

Orders re documents etc.

13. (1) Subject to subsection (2), an adjudicator appointed to hold a proceeding may, at any time before the proceeding is concluded, make orders for any of the following, as the adjudicator considers necessary for the just and most expeditious resolution of the proceeding:

1. The exchange of documents.

2. The oral or written examination of a party.

3. The exchange of witness statements and reports of expert witnesses.

4. The provision of particulars.

5. Any other form of production of documents.

(2) Subsection (1) does not authorize the making of an order requiring production of privileged information.

Non-compliance

14. (1) An adjudicator appointed to hold a proceeding may make orders with respect to the procedures and practices that apply in any particular proceeding, as the adjudicator considers just, in order to remedy non-compliance under this Regulation in respect of the proceeding.

(2) For greater certainty, and without limiting the generality of subsection (1), the adjudicator may, by order, do the following:

1. If a party fails to provide documents to another party or person as required by this Regulation or by an order of the adjudicator, the adjudicator may refuse to consider the documents.

2. The adjudicator may refuse to deal with a motion that is not submitted to the adjudicator in compliance with this Regulation.

3. Where a party seeks to present evidence or make submissions at a motion hearing with respect to a fact or issue that was not raised in the motion, the adjudicator may refuse to allow the party to present evidence or make submissions about the fact or issue unless the adjudicator is satisfied that there would be no substantial prejudice to any party and no undue delay to the proceedings if the evidence or submissions were heard.

Alternative dispute resolution

15. (1) The adjudicator appointed to hold a merits hearing may, at any time before the hearing, direct the parties to participate in an alternative dispute resolution mechanism for the purposes of resolving the adjudication hearing, or an issue arising in the adjudication hearing, if all parties consent to participating in the alternative dispute resolution mechanism. O. Reg. 404/23, s. 15 (1).

(2) In this section,

“alternative dispute resolution mechanism” includes mediation, conciliation, negotiation or any other means of facilitating the resolution of issues in dispute. O. Reg. 404/23, s. 15 (2).

(3) For greater certainty, whether or not parties participate in an alternative dispute resolution mechanism as a result of a direction under subsection (1) does not affect the application of subsection 201 (9) or 202 (8) of the Act, as applicable. O. Reg. 404/23, s. 15 (3).

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, subsection 15 (3) of the Regulation is amended by striking out “201 (9) or 202 (8)” and substituting “201 (9), 202 (8) or 207 (7)”. (See: O. Reg. 123/24, s. 2)

Extension of deadlines for document submission

16. If this Regulation provides for a deadline by which a document must be submitted to an appointed adjudicator, that deadline applies unless the adjudicator orders that the deadline be extended due to exceptional circumstances.

Communication with adjudicator

17. No party to an adjudication hearing shall communicate directly or indirectly, in relation to the subject matter of any of the proceedings in respect of the adjudication hearing, with the pre-hearing conference adjudicator or the adjudicator appointed to hold the merits hearing unless all parties are present or all parties consent to the communication.

Absence of public, orders

18. If the appointed adjudicator has decided that a proceeding or part of a proceeding will be held in the absence of the public in accordance with section 9 of the Statutory Powers Procedure Act, the adjudicator may make orders the adjudicator considers necessary to prevent the public disclosure of matters revealed at the proceeding, including orders banning the publication or broadcasting of those matters.

Pre-hearing Conferences

Appointment of pre-hearing conference adjudicator

19. (1) If a pre-hearing conference is required to be held or ordered to be held under this Regulation, the Commission Chair shall, as soon as possible, appoint a single adjudicator to hold a pre-hearing conference.

(2) The pre-hearing conference adjudicator and the adjudicator appointed to hold the related merits hearing in an adjudication hearing shall not be the same individual.

Purposes of pre-hearing conference

20. A pre-hearing conference shall be held for the purpose of considering one or more of the following:

1. The settlement of any or all of the issues.

2. The simplification of the issues.

3. Facts or evidence that may be agreed upon.

4. The dates by which any steps in the adjudication hearing are to be taken or begun.

5. The estimated duration of the merits hearing.

6. Any other matter that may assist in the just and most expeditious disposition of the adjudication hearing.

Powers of pre-hearing conference adjudicator

21. (1) The pre-hearing conference adjudicator may make such orders as they consider necessary or advisable with respect to the conduct of the adjudication hearing, including adding parties.

(2) Despite subsection (1), the pre-hearing conference adjudicator shall not, without the consent of all parties, make orders regarding any issues that would otherwise be determined at the related merits hearing.

Absence of public

22. A pre-hearing conference, including any settlement discussions, shall be held in the absence of the public.

Confidentiality

23. Documents submitted or statements made for the purpose of settlement or otherwise submitted or made without prejudice for the purpose of a pre-hearing conference shall not be revealed or communicated to the adjudicator appointed to hold the merits hearing, except with the consent of the parties.

Documents to be provided

24. The pre-hearing conference adjudicator shall cause any orders, agreements or undertakings that are made at the pre-hearing conference to be recorded and provided, in writing, to all parties and the adjudicator appointed to hold the related merits hearing.

Motions and Motion Hearings

Adjudicator to hear motion

25. The adjudicator appointed to hold a merits hearing shall hold any related motion hearing.

When motion may be brought

26. (1) A party may bring a motion,

(a) at a motion hearing, in accordance with sections 27 to 29; or

(b) subject to subsection (2), at the beginning of the merits hearing or during the merits hearing, if permission is sought and obtained from the adjudicator.

(2) The adjudicator may give permission to bring a motion under clause (1) (b) if the adjudicator is satisfied that the facts or issues upon which the motion is based were not previously known or available to the moving party despite the exercise of due diligence.

Bringing a motion

27. (1) A party bringing a motion at a motion hearing in respect of a merits hearing shall submit the following documents to the adjudicator appointed to hold the merits hearing at least 14 days before the motion hearing:

1. A notice of motion setting out the grounds for the motion and the relief requested, accompanied by any evidence to be relied upon, which may include an affidavit setting out the facts.

2. A factum.

3. A brief of authorities.

(2) For greater certainty, a party bringing a motion raising constitutional issues must also comply with section 109 of the Courts of Justice Act.

Response to motion

28. A party who wishes to respond to a motion brought at a motion hearing shall submit the following to the adjudicator in accordance with the timelines established by the adjudicator:

1. Any evidence to be relied upon, which may include an affidavit setting out the facts.

2. A factum.

3. A brief of authorities.

Cross-examination, motion

29. (1) At a motions hearing, a party may cross-examine another party’s affiant, or where the evidence submitted is based on information and belief from another person, that person, on matters contained in or arising out of an affidavit, and the party that filed the affidavit is responsible for ensuring the affiant or other person, as applicable, can attend to be cross-examined.

(2) For greater certainty, the adjudicator appointed to hold the related merits hearing shall be present during any cross-examination described in subsection (1) and the cross-examination shall take place in accordance with any direction provided by the adjudicator.

Documents

Production of documents

30. All parties to a merits hearing, other than the police officer whose discipline or suspension without pay is the subject of the hearing, shall submit to the adjudicator appointed to hold the hearing the following documents in accordance with Part III, IV or V, as applicable:

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, section 30 of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following: (See: O. Reg. 123/24, s. 3)

30. All parties to a merits hearing, other than the police officer whose discipline, suspension without pay or employment record is the subject of the hearing, shall submit to the adjudicator appointed to hold the hearing the following documents in accordance with Part III, IV, IV.1 or V, as applicable:

1. Except in the case of a party who is a complainant, a document setting out a list of all arguably relevant documents in the party’s possession.

2. Where privilege is claimed over any document referred to in paragraph 1, a document setting out a description of the nature of the document and why privilege is claimed.

3. A document setting out a list of documents upon which the party intends to rely.

4. A copy of each document referred to in paragraph 3. O. Reg. 404/23, s. 30.

Request for documents

31. Any party to a merits hearing may serve a request for a document referred to in paragraph 1 of section 30 on the party having possession of the document, and the party having possession of the document shall provide a copy of it to every other party, subject to any claim of privilege, within 15 days of the request being served.

Reliance on documents

32. (1) Subject to subsections (2) and (3), no party to a merits hearing may rely on the following at the hearing:

1. A document in that party’s possession that was not included on the party’s list described in paragraph 3 of section 30 or in their updated list submitted in accordance with clause 56 (2) (c).

2. A document that is in the party’s possession that was not provided to the other parties in accordance with section 31, if a request has been served in respect of the document under that section. O. Reg. 404/23, s. 32 (1).

(2) Subsection (1) does not apply to a police officer whose discipline or suspension without pay is the subject of the hearing.

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, subsection 32 (2) of the Regulation is revoked and the following substituted: (See: O. Reg. 123/24, s. 4)

(2) Subsection (1) does not apply to a police officer whose discipline, suspension without pay or employment record is the subject of the hearing. O. Reg. 123/24, s. 4.

(3) Subsection (1) does not apply to a party in respect of a document if the adjudicator appointed to hold the merits hearing has granted to the party leave to rely on the document. O. Reg. 404/23, s. 32 (3).

Limitations on use, disclosure

33. (1) Parties to an adjudication hearing and their representatives shall not use or disclose documents obtained relating to the hearing for any purpose other than the hearing.

(2) If a complainant is a party to an adjudication hearing, the complainant and their representative shall complete a written undertaking not to use or disclose documents obtained as a result of the hearing for any purpose other than the hearing, prior to receiving any such documents.

(3) For the purposes of this section,

“representative” means, in respect of a complainant, a person authorized under the Law Society Act to represent the complainant or an agent of the complainant.

Production of documents from third parties

34. (1) The adjudicator appointed to hold a merits hearing may order production of a document that is in the custody or control of a person who is not a party to the hearing and that is not privileged, after giving the person notice and an opportunity to be heard, if the adjudicator is satisfied that the document is important to resolving a material issue in the merits hearing or a motion hearing.

(2) Where privilege is claimed for a document referred to in subsection (1), or where the adjudicator is uncertain of the importance of the document to resolving a material issue in the merits hearing, the adjudicator may inspect the document in the absence of the parties in order to determine whether the document is privileged or whether the document is important to resolving the material issue, as the case may be.

(3) The party seeking the production of a document under subsection (1) is responsible for the reasonable cost incurred by the third party to produce the document, unless the adjudicator orders otherwise.

Service of Documents

Service required

35. (1) Every document required to be submitted to an adjudicator who has been appointed to hold a merits hearing or motion hearing under this Regulation shall be served on the other parties to the merits hearing and, in the case of a document required to be submitted in respect of a motion hearing, any third party that would be affected by an order in respect of the proceeding.

(2) In the case of documents submitted in respect of a motion relating to the powers or duties of the Complaints Director, the Complaints Director is deemed to be a third party that would be affected by the order for the purpose of subsection (1).

Methods, when effective

36. (1) Subject to subsection (2), where this Regulation requires service of a document, service shall be effected by sending the document by email.

(2) The adjudicator to whom the document is required to be submitted may authorize or direct service of a document to be effected by any method other than email, including any means set out in Column 1 of the Table to this section, at the request of a party or on the adjudicator’s own initiative.

(3) If it is impractical to effect service by any means, the adjudicator may dispense with service.

(4) Subject to subsection (5), if a document is served by a method set out in Column 1 of the Table to this section, the service is effective as described opposite the method in Column 2 of the Table.

(5) Subsection (4) does not apply where a person who acts in good faith does not receive the document until later or at all.

TABLE

Item

Column 1
Method of service

Column 2
When effective

1.

Email before 4:00 pm

On the day the email is sent.

2.

Email at 4:00 pm or later

On the day following the day the email is sent.

3.

Personal delivery before 4:00 pm

On the day of the delivery.

4.

Personal delivery at 4:00 pm or later

On the day following the day of the delivery.

5.

Regular, registered or certified mail

On the fifth day after the day it was mailed.

6.

Courier

On the second day after the day the courier picks it up.

7.

Any other method authorized or directed by an adjudicator.

On the day specified by the adjudicator.

 

Affidavit of service

37. If other parties to an adjudication hearing are required under this Regulation to be served with any documents, the serving party shall,

(a) file an affidavit of service with the adjudicator appointed to hold the merits hearing;

(b) provide the adjudicator with an email or letter indicating,

(i) who has been served,

(ii) which documents have been served, and

(iii) when the documents were served and by what method; or

(c) provide such other information regarding service as the adjudicator may require.

Witnesses

Witnesses

38. (1) If a party to the merits hearing intends to introduce evidence and is permitted to do so under this Regulation, the party shall provide the other parties with a list of their potential witnesses and a brief summary of the witnesses’ anticipated evidence.

(2) The parties may rely upon documents produced by other parties to comply with subsection (1).

Summons to witness

39. (1) A summons to a witness shall be signed by the adjudicator appointed to hold the merits hearing.

(2) A party requesting a summons shall provide, in writing, to the adjudicator the name and address of the witness, along with a draft proposed summons.

Rules of examination

40. (1) In this section,

“police officer” means, in respect of a merits hearing, the police officer whose conduct or suspension without pay is the subject of the hearing, as applicable.

(2) Subject to the discretion of the adjudicator appointed to hold the merits hearing, the order of examination of witnesses, where applicable, shall be as follows:

1. In the case of witnesses called by the chief of police, police service board, Minister or Complaints Director, as the case may be, the order is the following:

i. Chief, board, Minister or Complaints Director examination-in-chief.

ii. Complainant cross examination, if there is a complainant.

iii. Police officer cross-examination.

iv. Chief, board, Minister or Complaints Director reply examination.

2. In the case of witnesses called by a complainant, the order is the following:

i. Complainant examination-in-chief, if there is a complainant.

ii. Chief, board, Minister or Complaints Director cross-examination.

iii. Police officer cross-examination.

iv. Complainant reply examination.

3. In the case of witnesses called by the police officer, the order is the following:

i. Police officer examination-in-chief.

ii. Chief, board, Minister or Complaints Director cross-examination.

iii. Complainant cross-examination.

iv. Police officer reply examination.

Expert witness, duty

41. An expert engaged by or on behalf of a party to give evidence in relation to an adjudication hearing shall,

(a) give opinion evidence that is fair, objective and non-partisan;

(b) give opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) give such additional assistance as the appointed adjudicator may reasonably require to determine a matter in issue.

Reliance on expert

42. If a party intends to submit and rely upon expert evidence in relation to an adjudication hearing, the party shall establish to the satisfaction of the adjudicator its relevance and necessity and shall properly qualify the expert witness to the satisfaction of the adjudicator.

Expert witness, report

43. (1) A party who intends to call an expert witness to give opinion evidence at a merits hearing shall serve on every other party a report, signed by the expert witness, containing the following information:

1. The expert witness’s name, address and area of expertise.

2. The expert witness’s qualifications, employment and educational experiences in their area of expertise.

3. The instructions provided to the expert witness in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert witness’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert witness’s own opinion within that range.

6. The expert witness’s reasons for the opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert witness that led to the formation of the opinion, and

iii. a list of every document relied on by the expert witness in forming the opinion.

7. An acknowledgement, signed by the expert witness, of the expert witness’s duty set out in section 41.

(2) The report mentioned in subsection (1) shall be served,

(a) no later than four weeks before the merits hearing; or

(b) if the appointed adjudicator determines that it is appropriate in the circumstances for service to occur by a date that is either earlier or later than four weeks before the merits hearing, no later than the date determined by the adjudicator.

Expert witness, testimony

44. No expert witness shall testify at a proceeding with respect to an issue, except with leave of the adjudicator appointed to hold the proceeding, unless the substance of their testimony with respect to that issue is set out in a report described in subsection 43 (1) that has been served on every other party.

Records

Recording of oral evidence

45. The adjudicator shall ensure that oral evidence given at a motion hearing or merits hearing is recorded.

Transcript

46. Should a party require a copy of a transcript for any reason, the party shall be responsible for the cost of the transcript and shall provide a copy of the transcript to the adjudicator and each of the other parties.

Costs

Costs

47. (1) Subject to subsection (2), an adjudicator appointed to hold a merits hearing may order a party to pay all or part of another party’s costs in the proceedings.

(2) An adjudicator shall not make an order against a party under subsection (1) unless,

(a) the conduct or course of conduct of the party has been frivolous, vexatious or an abuse of process; or

(b) the party has acted in bad faith.

(3) An adjudicator may request submissions regarding a party’s costs.

(4) Submissions regarding a party’s costs shall be made electronically or in writing, unless the adjudicator is satisfied that this requirement is likely to cause significant prejudice to the party making the submission and an alternate format is likely to remedy the prejudice.

PART III
Disciplinary Measures

Application of Part

48. This Part applies in respect of an adjudication hearing held under section 201 of the Act.

Manner of proceedings

49. (1) Subject to subsection (2),

(a) the merits hearing shall be held in person;

(b) any motion hearing shall be held electronically;

(c) the pre-hearing conference shall be held electronically; and

(d) any other proceedings shall be held electronically or in writing, as the adjudicator determines is appropriate in the circumstances.

(2) The adjudicator may order that any of the proceedings be held in a manner other than the manner specified in subsection (1) if,

(a) all of the parties consent to the order;

(b) the order is necessary to accommodate an individual in accordance with the Human Rights Code; or

(c) the manner specified for the proceeding in subsection (1) is likely to cause significant prejudice to a party and the order is likely to remedy the prejudice.

Applicant’s materials

50. A police officer who applies to the Commission Chair to appoint an adjudicator to hold a merits hearing shall include the following in the application:

1. A description of the disciplinary measure or measures the chief imposed on the officer.

2. The day on which the disciplinary measure or measures were imposed.

Responding materials

51. The chief of police, police service board or Minister, as applicable, shall submit to the adjudicator,

(a) no later than 15 days following the day on which an adjudicator is appointed by the Commission Chair,

(i) a description of the conduct allegedly engaged in by the police officer that constitutes misconduct or unsatisfactory work performance, as applicable,

(ii) a description of the particulars of the alleged misconduct or unsatisfactory work performance, and

(iii) a description of the disciplinary measure or measures imposed; and

(b) no later than 30 days following the day on which an adjudicator is appointed by the Commission Chair,

(i) if any disciplinary measure or measures were imposed in relation to unsatisfactory work performance, a description of the steps taken under subsection 201 (2) of the Act, and

(ii) all documents required under section 30.

Pre-hearing conference

52. (1) No later than 60 days following the day on which an adjudicator is appointed by the Commission Chair to hold the merits hearing, the pre-hearing conference adjudicator shall ensure that a pre-hearing conference takes place.

(2) The timeline set out in subsection (1) applies unless the pre-hearing conference adjudicator extends it due to exceptional circumstances.

Merits hearing

53. (1) No later than six months following the conclusion of the pre-hearing conference, the adjudicator appointed to hold the merits hearing shall ensure that the hearing commences.

(2) The timeline set out in subsection (1) applies unless the adjudicator extends it due to exceptional circumstances.

(3) The adjudicator shall hold the merits hearing in accordance with the following rules:

1. The adjudicator shall first determine whether it has been proven on clear and convincing evidence that the conduct of the police officer constitutes misconduct or unsatisfactory work performance.

2. If it has been proven on clear and convincing evidence that the police officer’s conduct constitutes misconduct or unsatisfactory work performance, the adjudicator shall determine the disciplinary measure or measures to be imposed, if any.

Part IV
Demotion or Termination of Employment

Application of Part

54. This Part applies in respect of an adjudication hearing held under section 202 of the Act.

Manner of proceedings

55. (1) Subject to subsection (2),

(a) the merits hearing shall be held in person;

(b) any motion hearing shall be held electronically;

(c) the pre-hearing conference shall be held electronically; and

(d) any other proceedings shall be held electronically or in writing, as the adjudicator determines is appropriate in the circumstances.

(2) The adjudicator may order that any of the proceedings be held in a manner other than the manner specified in subsection (1) if,

(a) all of the parties consent to the order;

(b) the order is necessary to accommodate an individual in accordance with the Human Rights Code; or

(c) the manner specified in subsection (1) is likely to cause significant prejudice to a party and the order is likely to remedy the prejudice.

Applicant’s materials

56. (1) A chief of police, police service board or Minister who applies to the Commission Chair to appoint an adjudicator to hold a merits hearing shall include the following in the application:

1. A description of the alleged misconduct or unsatisfactory work performance in respect of which a disciplinary measure is being sought.

2. A statement as to whether the disciplinary measure being sought is demotion or termination of the police officer’s employment.

(2) The chief of police, police service board, Minister or Complaints Director, as applicable, shall submit to the adjudicator,

(a) no later than 15 days following the day on which an adjudicator is appointed by the Commission Chair, a description of the particulars of the alleged misconduct or unsatisfactory work performance;

(b) no later than 30 days following the day on which an adjudicator is appointed by the Commission Chair,

(i) if demotion or termination of employment is being sought as a result of unsatisfactory work performance, a description of the steps taken under subsection 202 (2) of the Act, and

(ii) all documents required under section 30; and

(c) no later than 30 days before the day on which the hearing is to be held, any updates to information submitted previously, including any new documents that the chief of police, police service board, Minister or Complaints Director intends to rely on at the hearing.

Responding materials

57. The complainant, if any, shall, no later than 30 days before the day the merits hearing commences, submit to the adjudicator all documents required under section 30.

Pre-hearing conference

58. (1) No later than 60 days following the day on which an adjudicator is appointed by the Commission Chair for the merits hearing, the pre-hearing conference adjudicator shall ensure a pre-hearing conference takes place.

(2) The timeline set out in subsection (1) applies unless the adjudicator extends it due to exceptional circumstances.

Merits hearing

59. (1) No later than nine months following the conclusion of the pre-hearing conference, the adjudicator appointed to hold the merits hearing shall ensure that the hearing commences.

(2) The timeline set out in subsection (1) applies unless the adjudicator extends it due to exceptional circumstances.

(3) The adjudicator shall hold the hearing in accordance with the following rules:

1. The adjudicator shall first determine whether it has been proven on clear and convincing evidence that the conduct of the police officer constitutes misconduct or unsatisfactory work performance.

2. If it has been proven on clear and convincing evidence that the police officer’s conduct constitutes misconduct or unsatisfactory work performance, the adjudicator shall determine the disciplinary measure or measures to be imposed, if any, which may include demotion or termination of the officer’s employment or any other disciplinary measure permitted under the Act.

Note: On April 1, 2024, the day section 214 of Schedule 1 (Community Safety and Policing Act, 2019) to the Comprehensive Ontario Police Services Act, 2019 comes into force, the Regulation is amended by adding the following Part: (See: O. Reg. 123/24, s. 5)

PART IV.1
EXPUNGEMENT OF EMPLOYMENT RECORDS

Application of Part

59.1 This Part applies in respect of an adjudication hearing held under section 207 of the Act. O. Reg. 123/24, s. 5.

Manner of proceedings

59.2 (1) Subject to subsections (3) and (4), the merits hearing shall be held in writing. O. Reg. 123/24, s. 5.

(2) If a pre-hearing conference is held, it shall be held electronically. O. Reg. 123/24, s. 5.

(3) Subject to subsection (4), if the adjudicator has granted leave to hear live witness testimony during the merits hearing, the hearing or the portion of the hearing during which the live testimony will be heard, as specified by the adjudicator, shall be held in person. O. Reg. 123/24, s. 5.

(4) The adjudicator may order that the merits hearing or any proceedings relating to the hearing be held either in person or electronically if the order is necessary to accommodate an individual in accordance with the Human Rights Code. O. Reg. 123/24, s. 5.

Applicant’s materials

59.3 (1)  A chief of police, police service board or Minister who applies to the Commission Chair to appoint an adjudicator to hold a merits hearing shall include the following in the application:

1. A description of the record they are seeking to retain for longer than two years or five years, as applicable.

2. The date on which the record would be required to be expunged if the adjudicator does not order an extension. O. Reg. 123/24, s. 5.

(2) The chief of police, police service board or Minister shall submit to the adjudicator,

(a) no later than 15 days following the day on which an adjudicator is appointed by the Commission Chair,

(i) a description of the disciplinary record at issue, and

(ii) a description of the grounds on which the record should be retained for longer than two years or five years, as applicable, as a result of extenuating circumstances; and

(b) no later than 60 days following the day on which an adjudicator is appointed by the Commission Chair,

(i) a copy of the record they are seeking to retain for longer than two years or five years, as applicable,

(ii) a description of the extenuating circumstances referred to in subsection 207 (4) of the Act,

(iii) any documents the chief of police, police service board or Minister, as applicable, believes the adjudicator requires to make a decision, and

(iv) all documents required under section 30. O. Reg. 123/24, s. 5.

Responding materials

59.4 The police officer to whom the record relates shall submit to the adjudicator,

(a) no later than 120 days following the day on which an adjudicator is appointed by the Commission Chair, all documents required under section 30; and

(b) no later than 180 days following the day on which an adjudicator is appointed by the Commission Chair, any updates to information submitted previously, including any new documents that the police officer intends to rely on at the hearing. O. Reg. 123/24, s. 5.

Pre-hearing conference

59.5 At any point before the merits hearing commences, the adjudicator may order that a pre-hearing conference be held. O. Reg. 123/24, s. 5.

Merits hearing

59.6 No party shall introduce evidence at a merits hearing unless the adjudicator appointed to hold the merits hearing determines it is necessary to do so. O. Reg. 123/24, s. 5.

Part V
Suspension without pay

Application of Part

60. This Part applies in respect of an adjudication hearing held under section 210 of the Act.

Manner of proceedings

61. (1) Subject to subsection (2),

(a) the merits hearing shall be held in person;

(b) any motion hearing shall be held electronically;

(c) any pre-hearing conference shall be held electronically; and

(d) any other proceedings shall be held electronically or in writing, as the adjudicator determines is appropriate in the circumstances.

(2) The adjudicator may order that the hearing or any proceedings relating to the hearing be held in a manner other than the manner specified in subsection (1) if,

(a) all of the parties consent to the order;

(b) the order is necessary to accommodate an individual in accordance with the Human Rights Code; or

(c) the manner specified in subsection (1) is likely to cause significant prejudice to a party and the order is likely to remedy the prejudice.

Applicant’s materials

62. (1) A police officer who applies to the Commission Chair to appoint an adjudicator to hold a hearing shall include in the application a statement as to whether the suspension without pay is imposed under paragraph 2 or 3 of subsection 210 (1) of the Act.

(2) On or before 30 days following the day on which an adjudicator is appointed by the Commission Chair, the police officer shall submit the following to the adjudicator:

1. If the suspension without pay is imposed under paragraph 2 of subsection 210 (1) of the Act, a copy of the conditions of judicial interim release or conditions imposed under section 499 of the Criminal Code (Canada) and an explanation of why the officer believes that the conditions do not substantially interfere with the officer’s ability to perform the duties of a police officer.

2. If the suspension without pay is imposed under paragraph 3 of subsection 210 (1) of the Act, a copy of the notice referred to in sub-subparagraph 3 ii B of subsection 210 (1) of the Act, if applicable, and an explanation of why the officer believes the criteria set out in paragraph 3 of subsection 210 (1) of the Act have not been met.

3. A copy of the notice provided to the officer under subsection 210 (4) of the Act.

Responding materials

63. The chief of police, police service board or Minister, as applicable, shall, on or before 60 days following the day an adjudicator is appointed by the Commission Chair, submit to the adjudicator any documents, other than what is described in section 62, that are required under section 30.

Pre-hearing conference

64. At any point before the merits hearing commences, the adjudicator may order that a pre-hearing conference be held.

Merits hearing

65. (1) No later than 90 days following the day the adjudicator is appointed by the Commission Chair to hold the merits hearing, the adjudicator shall ensure that the merits hearing commences.

(2) The timeline in subsection (1) applies unless the adjudicator extends it due to exceptional circumstances.

(3) No party shall introduce evidence at the merits hearing unless the adjudicator appointed to hold the merits hearing determines it is necessary to do so.

66. Omitted (provides for coming into force of provisions of this Regulation).

 

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