The ONCA Clarifies Procedure for Police Complaints: Wall v Independent Police Review Director

In Wall v Office of the Independent Police Review Director, 2014 ONCA 884, the Ontario Court of Appeal (“ONCA”) provided clarity to the complaint procedure of the Police Services Act, RSO 1990, c P.15 [PSA]. In so doing, they added another chapter to the legacy of the Toronto G20 protests and protected complainant rights.


Mr. Wall, the claimant, was arrested during the G20 protests. He was held for 28 hours and eventually released without charges. On December 28, 2010, he launched a complaint, based on his arrest, with the Office of the Independent Police Review Director (“OIPRD”) through the PSA. Eight months later, the investigation found misconduct in regards to his temporary incarceration. The arresting officers were subsequently prosecuted for their actions. On December 13, 2013, one was found guilty of misconduct; the other was not.

As part of his initial complaint, a report was created. Mr. Wall received it on September 7, 2011. Portions of that report indicated that the arrest may have stemmed from orders made by higher ranking officers. On January 25, 2012, he filed another complaint against any officers involved in or having knowledge of the meeting wherein the alleged orders were made.

The second complaint was barred by the OIPRD Director (“Director”). The decision rested on section 60(2) of the PSA, which empowers the Director to refuse any claim made more than six months after the occurrence of the facts on which it is based. Mr. Wall sought judicial review of the decision to not pursue the second claim.

Divisional Court

The lower court quashed the Director’s decision for two main reasons:

  1. Malloy J. felt “that the Director erred in treating [s. 60(2)] as a limitation period, and compounded the error by failing to apply the “discoverability” principle in making his decision not to proceed” (para 20).
  2. She also felt that the Director failed to abide by the statutory requirement to “give reasons and breached the principles of procedural fairness and natural justice in failing to do so” (para 21).

The Director appealed the decision. He argued, in part, that the Divisional Court erred by (a) applying the principle of discoverability and (b) requiring the provision of further reasons.

Court of Appeal

Discoverability Principle

The ONCA determined that the Director was bound to apply something like the discoverability principle when considering s. 60(2). The discoverability principle establishes that “a time limit ought not to begin to run against a complainant until the moment when the complainant knew, or ought reasonably to have known, that he or she had the basis for a complaint” (para 29). The Court of Appeal felt that there was nothing in the statute to exclude the operation of such an analysis, that the general scheme of the Part V of the PSA favours the hearing of complaints, and, most importantly, s. 60(3) required the Director to consider the public interest when allowing a complaint to go forward.

In general, “[c]omplaints regarding police misconduct raise issues that are important to society…” and it is thus preferable that genuine complaints be heard (para 46). Thus, the public interest requires the Director to consider “discoverability issues in deciding whether or not to deal with a post-six month complaint under s. 60(2)” (para 46). As a result, s. 60(2) cannot be used to bar a complaint for the mere reason that it is made six months after the events at issue occurred. It is not a limitations period provision. Instead, the Director must consider whether or not the claimant actually knew about the facts upon which their claim rests, and whether the date of discovery militates against the claim going forward. The moment the complainant discovers their claim is but one factor for the Director to consider.

Giving of Reasons

The Court of Appeal agreed with the substance of the Divisional Court’s holding on the second issue. While the ONCA did not agree that no reasons had been given, the Court of Appeal felt that the explanation provided by the Director was inadequate. The decision was “devoid of any reasons adequate to allow for judicial review of the Director’s decision to screen out Mr. Wall’s complaint relating to the higher ranks of the Police Service” (para 54). In short, the principles of procedural fairness were violated.


This decision provides important guidance to decision makers and complainants. While the determination regarding reasons is important, the more significant decision pertains to the discoverability principle. This decision is particularly important because, as shown by the very case at issue, the simple act of making the complaint can lead to new information which, now known, can lead to further claims. In other words, the complaint process is such that, without providing a wide margin of time for claimants to discover all relevant facts, many claims will be unjustly barred or only partly addressed. The ONCA avoided this result by requiring the Director to apply the substance of the discoverability principle.

This decision is, in essence, a determination that reads the PSA as providing robust procedural protection. As recognized by the ONCA, the handling of complaints of police misconduct is a matter of significant public importance. It is also a key component of the police’s legitimacy. As such, all should welcome this decision.

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