OTTAWA POLICE SERVICES BOARD

COMMISSION DE SERVICES POLICIERS D’OTTAWA

Working together for a safer community

La sécurité de notre communauté, un travail d’équipe

MEMORANDUM

NOTE DE SERVICE

DATE 18 February 2011

TO/DEST. Executive Director, Ottawa Police Services Board

FROM/EXP. Board Solicitor

SUBJECT/OBJET LEGAL SERVICES STATUS REPORT - 2010 FOURTH QUARTER

RECOMMENDATION

That the Ottawa Police Services Board receive this report for information.

BACKGROUND

The City Clerk and Solicitor Department is a full-service, in-house law practice that provides a broad range of services to the Police Services Board in the areas of civil litigation, labour and employment law, procedural and general legal advice, corporate/commercial/development and environmental law. The Department’s objective is to achieve this through the most cost-effective and efficient combination of both in-house and external lawyers. In this latter regard, the Department has a Strategic Standing Offer (SSO) with three law firms for the provision of external legal services. The SSO was negotiated for the period 2007-2010 and provides for very favourable, blended hourly rates set for the duration of the four-year term.

Pursuant to Section 6.1 of Board Policy #GA-8 – Legal Services, the Board Solicitor shall submit a report to the Board on a quarterly basis that includes statistical information and concise analysis of trends on:

positive and negative variances against the approved budget;
all claims or actions filed against the Board including how many have been filed, how many are outstanding, how many have been settled, the nature of them (categorized by type), and the cost of settlements;
the number, cost and outcome of all appeals and applications for judicial review;
any issues of significance the Board should be advised of.

In compliance with Section 6.1, this report provides the requested information with respect to the fourth quarter of 2010.

Ottawa Police Service 2010 Fourth Quarter Costs of Legal Services
Item	Q1 Q2 Q3 Q4
Internal Legal Costs	$45,980.00 $53,790.00 $ 75,910.00 $66,039.00
External Legal Costs	$ 6,558.93 $26,127.78 $ 51,465.47 $23,460.96
Legal Disbursements	$ 1,057.00 $ 2,170.24 $ 5,224.91 $ 4,086.33
2010 Fourth Quarter	$53,595.93 $82,088.02 $132,600.38 $93,586.29

DISCUSSION

2010 Budget

The Police Services Board has allocated $320,000 for the provision of legal services in 2010. At the completion of the fourth quarter, $361,870.62 or 113% of the budget was spent. The adjacent chart sets out expenditures for the fourth quarter.


Type of Claim	Number
False Arrest	23
Seizure of Personal Property	1
Breach of Charter of Rights	3
Personal Injury	6
Excessive Force/Assault	14
Malicious Prosecution	3
Negligence	3
Property Damage	1
Trespassing	1
Other	9

2010 Litigation Claims

Six Statements of Claim were received on behalf of the Police Services Board in the fourth quarter of 2010. Currently there are 64 outstanding claims/notices of claim against the Board. Four of those claims are with external legal counsel as directed by the Board’s insurer or due to the requirement for a specialized legal expertise. The remaining 60 claims are assigned to various in-house Legal Counsel. Fourteen claims are at the mediation stage and/or are awaiting Settlement Conference dates. The adjacent list sets out the number of current litigated claims by category or type.

It should be noted that as Counsel for the Police Services Board, the City Clerk and Solicitor Department accepts and encourages the sending of demand letters in advance of formal Statements of Claim being issued. This proactive approach has numerous benefits if liability is indicated after investigation of the claim. For example, liability for legal fees can be greatly reduced and it can be much easier to negotiate a confidentiality agreement concerning the settlement where no formal Statement of Claim has been issued.

2010 Appeals or Judicial Reviews

As indicated in the first three quarterly reports, in the case of one of the above claims, which was dismissed at trial and in the Ontario Court of Appeal, the Plaintiff has filed a Motion for leave to appeal to the Supreme Court of Canada.

Type of Matter	Number
Termination	2
Workplace Safety & Insurance Board	14
Ontario Human Rights Complaint	17
Other	2

2010 Labour and Employment Law Matters

In addition to the above civil litigation claims, the City Clerk and Solicitor Department is currently managing 35 labour and employment law matters on behalf of the Police Services Board, two of which were received in the fourth quarter of 2010. The adjacent list sets out the number of current labour and employment law matters by category or type. Three of the labour and employment law matters have been outsourced to an SSO firm, with the remaining 32 matters assigned to in-house Legal Counsel.

SIGNIFICANT ISSUES

As was reported recently, the Ontario Court of Appeal issued an important decision late last year with regard to a person’s ability to pursue a civil claim against police where the matter has already been addressed as a complaint filed under the Police Services Act (the “PSA”).

In the case of Penner v. Niagara (Police Services Board), the Ontario Court of Appeal was asked to determine whether Mr. Wayne Penner’s civil claim against the Niagara Police for unlawful arrest, unnecessary use of force, false imprisonment and malicious prosecution should be allowed to continue despite the fact that his PSA complaint had been dismissed. Mr. Penner’s complaint, which arose out of the same incident, had been the subject of a hearing under the PSA, which concluded when the hearing officer dismissed the allegations of misconduct against the two officers involved. Mr. Penner appealed that finding to the Ontario Civilian Commission on Police Services (now the Ontario Civilian Police Commission). OCCOPS overturned the initial decision and held that Mr. Penner’s arrest “was both unlawful and unnecessary and that accordingly any force used was unjustified.” The officers involved then asked the Divisional Court to review the OCCOPS decision. On that application for judicial review, the Divisional Court overturned the OCCOPS decision and restored the ruling of the original hearing officer. Mr. Penner did not seek to appeal the Divisional Court’s decision, but rather commenced a civil claim for damages.

In an 18-page ruling, the Ontario Court of Appeal found that the doctrine of issue estoppel, which prevents a party from re-litigating an issue that has already been decided in another forum, was properly applied in striking out Mr. Penner’s civil claim. The Court of Appeal considered the fact that the PSA hearing looked much like a civil trial in that witnesses gave evidence under oath and were cross-examined, along with the fact that Mr. Penner had taken advantage of the appeal mechanisms available under the Act, and ultimately concluded that Mr. Penner should not be allowed to re-litigate the issue in the civil courts.

While it has been suggested that this decision stands for the proposition that an aggrieved person should not file a police complaint if they also intend to commence a civil action, the Court of Appeal was clear to note that the considerations that apply in any one case may not apply in another. It is likely that the lengthy appeal process that Mr. Penner had pursued under the PSA was an influential factor in this decision. As a result, it remains to be seen whether this ruling will have a broader impact on police complaints and whether it will be applied in future cases.

CONSULTATION

As this report was administrative in nature, consultation was not required.

FINANCIAL STATEMENT

As presented in this report.

CONCLUSION

It is anticipated that the 2011 first quarter report will be presented to the Board at its April 2011 meeting.

(Original signed by)

M. Rick O’Connor

Board Solicitor