Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction of the Superior Court over tort claims by a police officer despite the existence of a detailed disciplinary regime under the Police Services Act (PSA) and overlapping collective agreement grievance procedures.
• Characterization of the dispute’s “essential character” as one linked to criminal proceedings and alleged abuse of power, rather than a purely labour or disciplinary matter governed exclusively by the collective agreement and Part V of the PSA.
• Relationship between the criminal charges and the PSA disciplinary proceedings where the PSA Notices of Hearing expressly rely on alleged Criminal Code misconduct as the basis for police discipline.
• Effect of PSA provisions on non-compellability, inadmissibility of documents, and confidentiality on the use of PSA complaint-related information and documents in a subsequent civil tort action.
• Impact of a plaintiff officer’s waiver of confidentiality/privilege under PSA s. 95(d), permitting reference to information in disciplinary investigative materials in support of tort claims such as misfeasance, malicious prosecution, and negligent investigation.
• Concern that, if jurisdiction were declined, there would be no available grievance or PSA review mechanism to address the alleged wrongs, leaving serious claims of abuse of power without any forum for redress.

Factual background

Fraser Douglas was a police constable with the Toronto Police Service working at 55 Division. In January 2014, Officer Benjamin Elliott began searching police databases for information on Nguyen Son Tran. Elliott also asked Officer Brian Davy for information about Tran; Elliott and Davy had previously arrested and charged Tran in 2013 for possession of heroin for the purpose of trafficking after a search of Tran’s car found heroin behind the glove box.
On January 15, 2014, Davy briefed Elliott and Officer Michael Taylor on information he had received from a confidential informant about Tran while they were at 55 Division. Officer Jeffrey Tout was present for that briefing. Douglas was also working at 55 Division but, according to the pleadings, was not involved in that briefing and did not receive that information.
Douglas later left 55 Division and heard over his police radio that Tout had stopped a car and identified the driver as Tran, who had pending heroin charges. Douglas did not know who Tran was but drove to the scene to offer assistance. When he arrived, he saw Tran next to a white Toyota Camry. Tout told Douglas there were drugs in the car and that he had arrested Tran. Elliott and Taylor then arrived on the scene after Douglas.
Douglas searched Tran’s car and observed white powder on the front console. He searched the driver’s and passenger’s sides and found nothing. Elliott then searched the driver’s side and found a package of heroin behind the steering column. Douglas later checked the back seat for items left by Tran and found a folded piece of paper that appeared to have whitish powder on it, which he gave to an officer at 55 Division.
At Tran’s preliminary inquiry, Douglas, Tout, Elliott and Taylor each gave evidence about their involvement. Tran was committed to stand trial. At a voir dire in June 2015 before Morgan J., Douglas testified that he arrived at the scene before Elliott and Taylor. Tran testified that in the 2013 incident involving the same Toyota Camry, heroin was found inserted behind the steering column in the same place that Elliott found it in 2014, and that Elliott arrived at the scene before Douglas.
Justice Morgan concluded that Taylor, Elliott and Tout had orchestrated the traffic stop and planted heroin across the console of Tran’s car, and, relying on radio dispatch times, found that Elliott and Taylor were on the scene before Douglas arrived. These findings were not consistent with Douglas’s evidence. Justice Morgan concluded that Douglas’s evidence about his arrival time was given to deflect attention from the roles played by Elliott and Taylor in planting heroin to justify the search. Morgan J. held that the search of Tran’s car was not authorized, excluded the drugs from evidence, and the charges against Tran were dismissed.

Criminal charges and PSA disciplinary proceedings

On January 28, 2016, Douglas and other officers involved in the Tran incident were charged with criminal offences under the Criminal Code and disciplinary offences under the PSA. The criminal charges against Douglas included three counts of attempting to obstruct, pervert or defeat the course of justice and two counts of perjury. These charges stemmed from allegations that he lied to the court about arriving at the scene before Elliott and Taylor and that he did so to provide cover for Elliott when heroin was allegedly planted in Tran’s vehicle. The plaintiffs plead that the criminal charges were initiated by officers for whom the Toronto Police Services Board is liable pursuant to section 50(1) of the PSA.
As a result of the criminal charges, Douglas was suspended from duty with pay by Chief of Police Mark Saunders under section 89 of the PSA. The plaintiffs plead that this resulted in Douglas being demoted with a 6.5% reduction in pay and that he could no longer earn overtime pay.
On January 28, 2016, the Crown, pursuant to section 83(15) of the PSA, asked that any pending disciplinary charges under the PSA be stayed while the criminal matters were before the court. The plaintiffs plead that PSA disciplinary charges had not yet been commenced when that request was made and that Douglas was later served, on March 1, 2016, with two Notices of Hearing under the PSA specifying two counts of misconduct arising from the Tran incident. The Notices stated that it had been determined, after an investigation, that Douglas had acted contrary to the Criminal Code, that he had been charged with obstruction of justice, and that in so doing he committed misconduct by acting in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit upon the reputation of the Toronto Police Service. Douglas was commanded to appear before a hearing officer on March 29, 2016. At his first appearance in the PSA proceeding he was arraigned and the hearing was adjourned sine die.
On November 9, 2017, the Crown withdrew the criminal charges against Douglas due to unreasonable delay arising from Crown disclosure issues. The plaintiffs plead that the continued prosecution under the PSA was tantamount to prosecution of the criminal charges.
On February 22, 2018, Douglas was served with a Notice to Police Officer ordering him to attend the Professional Standards Unit for an investigative interview on March 9, 2018. Douglas refused to be interviewed, relying on his right under section 83(6) of the PSA not to give evidence while charges were pending. Despite this, he was charged with insubordination under the PSA.
In September 2018, Chief Saunders applied to the Board to expand the scope of the PSA proceeding by serving Douglas with three replacement Notices of Hearing. These notices included express allegations of “perjury” and giving “false, misleading inaccurate” testimony before the courts, contrary to section 80(1)(a) of the PSA. To obtain an exception to the six-month limitation period in section 83(17) of the PSA, the Chief asserted that TPS could not act on the PSA offences because the Crown had requested that the PSA charges be stayed and that TPS gained further clarity through the criminal proceedings. The plaintiffs plead that this assertion was false because the PSA charges were laid after the Crown had made the request. The Board dismissed the Chief’s request to serve these notices outside the limitation period and held that only the original charges from 2016 could be pursued.
The defendants later disclosed to Douglas, in March 2019, that Davy had given evidence on April 13, 2017 that Douglas was not at the January 2014 briefing on Tran. The PSA charges proceeded to a 14-day hearing beginning on April 6, 2021. The prosecutor withdrew the PSA charges on May 17, 2021, and Douglas’s suspension was lifted on June 4, 2021. The plaintiffs plead that, by that point, Douglas had been suspended from the force for five and a half years and had been demoted, and that he suffers from depression and loss of past and future income.

The civil claim and alleged motives

Douglas and his wife, Tara Douglas, are plaintiffs in this civil action. They plead the torts of malicious prosecution, misfeasance in public office, negligent investigation, intentional infliction of harm, and breach of Charter rights arising from both the PSA proceeding and the criminal proceeding. They also plead the same torts against the same parties stemming from the criminal proceeding.
The plaintiffs say that the defendants knew Douglas was innocent and that they had ulterior motives in pursuing the criminal and PSA charges and in suspending him. They plead that the main target of the defendants’ investigation was Elliott because he had a past history with Tran, which included a finding that Elliott gave misleading evidence. According to the plaintiffs, the defendants’ motivation for pursuing the criminal and PSA charges against Douglas was to wrongfully obtain, coerce or pressure Douglas to provide incriminating evidence against Elliott, or, in the alternative, for public relations purposes to enhance the TPS’s image.

Collective agreements and statutory framework

At all material times, the employment relationship between Douglas and the Board was governed by two collective agreements, one in effect when the PSA charges were laid in 2016 and one in effect when the PSA charges were withdrawn and his suspension was lifted in 2021. Both agreements had substantially the same scope and grievance terms.
The agreements relate to “the remuneration, benefits, pensions and working conditions” of members. They recognize the Board’s exclusive function, subject to the PSA and regulations, to maintain order, discipline and efficiency and to discharge, direct, classify, transfer, promote, demote or suspend or otherwise discipline any member. They also provide that if a member claims the Board has exercised those disciplinary functions in a discriminatory manner or without reasonable cause, that claim may be the subject of a grievance under the collective agreement or dealt with under procedures within the exclusive jurisdiction of the Ontario Civilian Police Commission, as prescribed by the PSA. The grievance procedure is set out in Article 6.
Part V of the PSA sets out a code for the investigation of complaints and for discipline of police officers through a hearing and appeals process. Section 76 permits a chief of police to make and investigate a complaint about a police officer’s conduct and, where the chief believes that the officer’s conduct constitutes misconduct or unsatisfactory work performance, requires the holding of a hearing. Section 80(1) defines misconduct, including where an officer commits an offence described in a prescribed code of conduct, commits an offence described in section 79(1) or (2), or contravenes section 81. Sections 82 to 88 govern hearings and provide appeal routes to the Ontario Civilian Police Commission and then to the Divisional Court.
Part VII of the PSA concerns labour relations, but section 126 provides that collective agreements and arbitration awards made under Part VII do not affect the working conditions of members of the police force where those working conditions are determined by specified provisions, including Part V. The decision notes appellate authority indicating that matters of discipline dealt with under Part V are excluded from the collective agreement because they are governed by the PSA. Both parties took the position that Douglas could not initiate a grievance in respect of the PSA disciplinary proceeding because discipline carried out under Part V is outside the collective agreement grievance procedure.

The motion to strike and jurisdiction issue

The defendants moved under rule 21.01(3)(a) of the Rules of Civil Procedure to strike the tort actions stemming from the PSA proceeding on the basis that the Superior Court lacked jurisdiction and to strike any claims that could only be proven by reference to information or documents prepared or obtained during the PSA proceeding, including negligent investigation claims, based on admissibility and confidentiality provisions in the PSA. They did not seek to strike claims related to criminal charges or the claim against the Chief concerning Douglas’s suspension under section 89 of the PSA. A separate motion to strike on the basis that the pleadings did not disclose reasonable causes of action was withdrawn after a Fresh as Amended Statement of Claim was served.
The court set out the governing principles from Weber v. Ontario Hydro and subsequent cases, including Regina Police Assn. It emphasized that where a dispute arises from the interpretation, application, administration or violation of a collective agreement containing a broad arbitration clause, jurisdiction lies exclusively with the labour tribunal. It also noted that, in the policing context, courts must consider the combined operation of the PSA and any applicable collective agreement, and determine whether the legislature intended disputes of the kind at issue to be governed by those regimes, by the courts, or by both.
The decision reviews a series of Ontario cases applying Weber and the PSA to police disputes, including Muirhead, where a claim was struck as a discipline dispute, and Rukavina, where the Court of Appeal held that the combination of a collective agreement and the PSA does not automatically oust the court’s jurisdiction in all cases involving police officers. In Rukavina, the Court of Appeal held that once a workplace incident leads to SIU involvement and criminal charges, the essential character of the dispute is no longer a labour relations dispute, and that the PSA does not preclude a private tort claim. The decision also refers to Skof v. Bordeleau, where the Court of Appeal held that a plaintiff can bring a claim for Charter breaches and misfeasance in public office relating to a suspension under section 89 of the PSA because the essential character of that claim is not governed by a collective agreement or subject to review under Part V of the PSA.
Applying these principles, the court examined the essential character of the present dispute. It noted that the PSA Notices of Hearing explicitly tied the disciplinary charges to Douglas’s alleged contravention of the Criminal Code and that, in the words of the decision, “the entire genesis of even the PSA Proceeding was the criminal complaint initiated and/or supported by the defendants for the improper purposes alleged by Douglas.” The court concluded that, consistent with Rukavina, the essential character of this matter does not arise from the interpretation, application, administration or violation of the collective agreement. Once the defendants brought or supported the criminal proceedings, the matter was no longer a workplace dispute governed by the collective agreement.
The court held that no other body had jurisdiction over the matters raised by Douglas. Because the PSA proceeding was withdrawn, there was no decision that Douglas could appeal under section 87 of the PSA, and even if there had been, the Commission’s powers would have been limited to confirming, varying or revoking the decision, substituting its own decision, or ordering a new hearing. The decision notes that both parties took the position that Douglas could not grieve the disciplinary matter under the collective agreement. In these circumstances, the court concluded that if it declined jurisdiction, Douglas would have no remedy for the wrongs he alleges, and that courts of inherent jurisdiction have residual discretion to assume jurisdiction where no other forum can provide a remedy.

Admissibility, confidentiality and alleged prejudice

The defendants argued that the tort claims should be struck because PSA provisions dealing with non-compellability, inadmissibility of documents and confidentiality would prevent them from using information and documents generated in the PSA proceeding and thereby prejudice their defence. They relied on provisions in Part V of the PSA that state that no person shall be required to testify in a civil proceeding with regard to information obtained in the course of duties under Part V (except at a Part V hearing), that no document prepared as the result of a complaint under Part V is admissible in a civil proceeding (except at such a hearing), that statements made during attempts at informal resolution are inadmissible absent consent, and that persons engaged in the administration of Part V must preserve secrecy, subject to listed exceptions including consent of the person to whom the information relates.
The court referred to Andrushko and other decisions that treated these provisions as creating a form of statutory privilege over personnel and complaint-related material where the officer does not consent. However, it distinguished those cases. In Andrushko, Lochner and Murray, the complaints were made by members of the public and the officers had not consented to disclosure.
In this case, the court observed that the defendants had filed only a very brief affidavit and had not provided evidence that there were investigative reports or documents from the PSA proceeding that would assist their defence. It noted that the Notices of Hearing showed the PSA charges were based solely on the Criminal Code charges and that the plaintiffs had pleaded that the evidence for the PSA charges was the same as for the criminal charges, which must be assumed true on a rule 21 motion. Documents and testimony from the criminal proceedings are not made inadmissible by the PSA provisions.
The decision also notes that, under section 95(d) of the PSA, a police officer may consent to disclosure of information, and that courts have recognized that where an officer puts his or her disciplinary history in issue in a civil action, privilege over that information may be waived. The plaintiffs conceded in this case that, because Douglas has pleaded misfeasance in public office, malicious prosecution, Charter breaches and intentional infliction of harm arising from the PSA proceeding, he has waived privilege and is prepared to permit the defendant officers to reference any information in documents or investigative reports relating to his prosecution under the PSA. The court concluded that the defendants could testify to what they did to investigate and could rely on the information in any investigative documents, even if the documents themselves remained inadmissible, and that this would not prevent them from defending themselves.
The court then considered the transition to the Community Safety and Policing Act, which, as of April 1, 2024, replaced the PSA. The new Act’s transition provisions state that complaints made under the PSA and hearings under section 25 of that Act will continue to be dealt with under the PSA as it read immediately before repeal, subject to specified modifications. They also repeat restrictions on compelling testimony and admitting documents in civil proceedings. The defendants argued that because the exceptions to confidentiality, including consent, were not expressly restated in the transition provisions, those exceptions no longer applied. The court disagreed, holding that the transition clause meant all relevant PSA provisions, not only those cited, continued to apply and, in any event, that the defendants could still reference information they needed to defend the action.

Outcome and present status

The court held that the Superior Court has jurisdiction over this matter and, in any event, should assume jurisdiction. It concluded that the combination of the collective agreement and Part V of the PSA does not constitute a complete code that ousts the court’s jurisdiction over all tort claims related to PSA charges, particularly where criminal proceedings and alleged abuses of power are central and no alternative forum exists to address the alleged wrongs. It also found that the defendants had not established that the PSA’s admissibility and confidentiality provisions would cause them prejudice in defending the action.
For these reasons, the court dismissed the defendants’ motion to strike the pleadings in respect of all issues. The decision directs that the parties may make cost submissions, with the plaintiffs to do so within seven days and the defendants within seven days thereafter. The decision does not set any specific amount for costs and does not award any damages. On this motion, the plaintiffs, Fraser and Tara Douglas, were successful, and based on this decision alone, the total monetary amount ordered in their favour for damages or costs cannot be determined.