Steven Simmons Applicant And: Royal Newfoundland Constabulary Public Complaints Commission First Respondent And: Chief of Police of the Royal Newfoundland Constabulary Second Respondent, 2022 NLSC 27

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Simmons v. Royal Newfoundland Constabulary Public Complaints Commission , 2022 NLSC 27 Date : February 24, 2022 Docket : 202101G0291 Between: Steven Simmons Applicant And: Royal Newfoundland Constabulary Public Complaints Commission First Respondent And: Chief of Police of the Royal Newfoundland Constabulary Second Respondent Before: Justice Valerie L.

Marshall On Judicial Review From: Decisions dated November 6, 2020 and December 2, 2020 of the Adjudicator appointed to hear a public complaint filed with the Royal Newfoundland Constabulary Public Complaints Commission . Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: October 12-13, 2021

Summary: The Applicant sought judicial review of the Adjudicator’s decision made November 6, 2020, denying the Applicant his choice of counsel for the hearing of a public complaint. The denial was on the basis of conflict of interest. The Applicant also sought judicial review of the Adjudicator’s subsequent decision that he lacked authority to reconsider the decision made November 6, 2020. HELD : The decisions were unreasonable and set aside.

Appearances: Thomas J. Johnson, Q.C. Appearing on behalf of the Applicant Mark D. Murray Appearing on behalf of the First Respondent Wendy A. Zdebiak Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland andLabrador, 2020 NLSC 34 (aff’d 2021 NLCA 26); Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 ,2019 S.C.C. 65; College of Veterinarians of Ontario v. Mitelman, 2015 ONSC 484; Garrick v. Amnesty International Canada, 2011 FC1099 , 2011 F.C. 1099; Ackerman v.

Ontario Provincial Police Service, 2010 ONSC 910; Thielmann v. Association ofProfessional Engineers and Geoscientists of the Province of Manitoba, 2020 MBCA 8; Bell Canada v. Canada (Attorney General), 2019SCC 66 , 2019 S.C.C. 66; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67 , 2019 S.C.C. 67;A.U.P.E. v. U.N.A., Local 168, 2009 ABCA 33, leave to appeal refused [2009] S.C.C.A. No. 119; MacDonald v. Martin, (SCC), [1990] 3 S.C.R. 1235; Alderwood Estate and Retirement Centre Ltd. v. Regular, 2019 NLSC 87; R. v. Neil, 2002 SCC 70, 2002 S.C.C. 70; Canadian National Railway Co. v.

McKercher LLP, 2013 SCC 39 , 2013 S.C.C. 39; Strother v.3464920 Canada Inc., 2007 SCC 24; Miguna v. Ontario (Attorney General), 2008 ONCA 799; M.(A.) v. Matthews, 2012 ABQB 185;Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190; IBEW, Local 1733 v. New Brunswick Power Corp. (1994), (NB KB), 155 N.B.R. (2d) 297 (Q.B.); Chandler v. Alberta Association of Architects, (SCC), [1989]2 S.C.R. 848 STATUTES CONSIDERED: Criminal Code of Canada, R.S.C. 1985, c. C-46; Royal Newfoundland Constabulary Act, 1992, S.N.L.1992, c.

R-17; Royal Newfoundland Constabulary Public Complaints Regulations, C.N.L.R. 970/96 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: David P. Jones and Anne S. de Villars, Principles of Administrative Law, 5th ed., (Toronto: Thomson ReutersCanada Limited, 2009); Donald J. M. Brown & John M.

Evans, Judicial Review of Administrative Action in Canada (Toronto: Carswell,2014) REASONS FOR JUDGMENT Marshall, J.: INTRODUCTION [1] The Applicant, Constable Steven Simmons, is the subject of a public complaint filed with the Royal NewfoundlandConstabulary Public Complaints Commission (the “Commission”) on May 1, 2018. The complaint arose from an incident whichoccurred in Paradise, Newfoundland and Labrador, on November 8, 2017. The complainants are Dennis Ball, Kimberly Ball andZackary Ball. [2] The Applicant seeks judicial review of two decisions of the Adjudicator, Andrew Wadden, Q.C., (the “Adjudicator”).

In hisfirst decision dated November 6, 2020, the Adjudicator found that the Applicant’s counsel of choice for the hearing of the publiccomplaint, Jerome Kennedy, Q.C., was in a conflict of interest, and had to be removed as counsel of record for Constable Simmons. The

second decision, dated December 2, 2020, was a refusal by the Adjudicator to reconsider the decision dated November 6, 2020, even though independent legal advice concerning the conflict of interest had been provided, albeit after the first decision. [ 3 ] For ease of reference, the Adjudicator’s November 6, 2020 decision shall hereinafter be referred to as the “conflict decision”; and the December 2, 2020 decision shall be referred to as the “reconsideration decision”. [ 4 ] The Applicant seeks an order quashing both of the Adjudicator’s decisions.

The application is contested by the Respondents, being the Commission and the Chief of Police of the Royal Newfoundland Constabulary (the “Chief of Police”). [ 5 ] The background facts are not contested. BACKGROUND [ 6 ] The incident leading to the filing of the public complaint involves the circumstances surrounding the arrests of Dennis Ball and Zackary Ball on November 8, 2017. Following the incident, the father and son were charged with various offences under the Criminal Code of Canada, R.S.C. 1985, c. C-46 .

However, following a meeting between the Crown and the Balls’ legal counsel, Erin Breen, Q.C., the Crown decided not to proceed with criminal charges against Dennis Ball and Zackary Ball; and the charges were withdrawn on March 23, 2018. [ 7 ] On behalf of the complainants, Solicitor Breen filed t he public complaint with the Commission on May 1, 2018. The complaint was filed pursuant to the Royal Newfoundland Constabulary Act, 1992 , S.N.L. 1992, c. R-12 (the “ RNC Act ”).

The complaint was made against three police officers who were at the incident; Constable Simmons, Constable Morgan and Constable Wagner. [ 8 ] In addition to the public complaint against the three officers, the incident led to a criminal investigation, and an internal disciplinary proceeding at the Royal Newfoundland Constabulary (the “RNC”) in which disciplinary offences were laid against Sergeant Derrick Cole. Sergeant Cole was the supervisor working at the time of the incident; he spoke with Constable Simmons during the incident.

Further, the incident gave rise to a civil action (201901G7155), initiated by the complainants, in which they have sued the police officers subject to the public complaint, as well as Sergeant Cole. [ 9 ] To elaborate, on May 2, 2018, the Chief of Police requested that the police officers’ conduct in relation to the incident be investigated. An investigation was conducted by the Ontario Provincial Police . Following the investigation, on March 7, 2019 the Public Prosecutions Office determined that no charges would be laid against the officers due to a lack of reasonable likelihood of conviction.

On March 13, 2019 the Chief of Police sent the complaint to the Commission for investigation. [ 10 ] On March 28, 2019, Zackary Ball commenced a private prosecution. On April 11, 2019, the Public Prosecutions Office maintained its position that there was no reasonable likelihood of conviction, and ultimately the private prosecution did not proceed. [ 11 ] On April 15, 2019, the Commission resumed its investigation into the complaint .

On June 25, 2019 the Commissioner (appointed under the RNC Act ) determined that the complaint should proceed, and the matter was remitted to the Chief Adjudicator; who, in turn, assigned the Adjudicator to hear the complaint. [ 12 ] The Adjudicator proceeded to deal with, and decide, preliminary applications related to the complaint, in addition to the decisions subject to this application. [ 13 ] Constable Simmons had initially retained Randy Piercey, Q.C. as his counsel for the public complaint hearing. However, Mr.

Piercey subsequently discovered that he was in a conflict; and he contacted Jerome Kennedy, Q.C. asking him to represent Constable Simmons at the public complaint hearing scheduled to commence on November 2, 2020. Counsel for the Commission immediately advised Solicitor Kennedy that concerns of conflict would have to be addressed before the Adjudicator. Specifically, the conflict concern arose from the representation by John Drover, who is another lawyer at the same firm as Solicitor Kennedy, being the firm of Roebothan, McKay and Marshall (“RMM”).

Solicitor Drover had represented Sergeant Cole at the internal disciplinary hearing arising from Sergeant Cole’s involvement with Constable Simmons in relation to the incident of November 8, 2017. [ 14 ] A hearing for the conflict issue proceeded before the Adjudicator on November 3, 2020. Affidavits had been filed in which Constable Simmons and Sergeant Cole purported to waive any conflict of interest.

Solicitor Drover, Constable Simmons and Sergeant Cole testified, and were cross-examined at the hearing. [ 15 ] At the hearing, the Commission and the Chief of Police maintained the position that Solicitor Kennedy was in a conflict of interest, and he should therefore not represent the Applicant at the public hearing. In his conflict decision, the Adjudicator described RMM’s representation of Sergeant Cole at pages 2 and 3, as follows: “Sgt. Cole has been subpoenaed as a witness to appear at the hearing on the merits in the public complaint. In the civil action noted above, Sgt.

Cole is a Defendant and is represented by Mr. Drover of RMM. Constable S.S. is a Defendant in that matter as well and is represented by the firm of O’Dea, Earle. Sgt. Cole is also represented by Mr. Drover of RMM in the above-noted appeal of two decisions of the Royal Newfoundland Constabulary Disciplinary Tribunal. Mr. Drover (and Julie Morris) also represented Sgt. Cole at the hearing which decisions are the subject of the appeal.” [ 16 ] Solicitor Kennedy’s position before the Adjudicator was that there was no disqualifying conflict of interest.

Similarly, legal counsel for the other two police officers subject to the complaint supported Mr. Kennedy’s position. [ 17 ] The Adjudicator’s conflict decision was a written decision issued on November 6, 2020. The Adjudicator determined that

Solicitor Kennedy was in a conflict of interest, and he granted the Commission’s application to have Mr. Kennedy removed as counsel of record. One of the Adjudicator’s reasons supporting his findings arose from the failure of Constable Simmons and Sergeant Cole to obtain independent legal advice respecting their waivers and consents. [ 18 ] Subsequent to the filing of the Adjudicator’s decision, Bernard Coffey, Q.C. was retained by Constable Simmons.

He wrote the Adjudicator indicating that he had provided Constable Simmons with independent legal advice concerning conflict of interest; and he further provided the Adjudicator with a certificate of independent legal advice from lawyer Liam O’Brien in relation to Sergeant Cole. In his correspondence, Solicitor Coffey asked the Adjudicator to reconsider his conflict decision. [ 19 ] Written submissions were apparently provided to the Adjudicator.

By letter dated December 2, 2020, the Adjudicator informed all counsel involved that he would not be hearing an application for reconsideration of the conflict decision, as he was of the view he did not have authority to do so. [ 20 ] On January 7, 2021, the Applicant filed this originating application seeking judicial review of the Adjudicator’s decisions. An amended application was filed March 30, 2021. The Applicant seeks to have the Adjudicator’s decisions quashed. The Commission and the Chief of Police contest the application. ISSUES [ 21 ] The parties raised several issues before the Court, as follows: 1.

Should the application for judicial review of the conflict decision and the application for judicial review of the reconsideration decision be heard separately? 2. What documents should be before the Court for this application? 3. Is this application for judicial review premature? 4. If not, what is the appropriate standard of review? 5. Should the conflict decision be quashed? 6. Should the reconsideration decision be quashed?

ISSUE 1: Should the application for judicial review of the conflict decision and the application for judicial review of the reconsideration decision be heard separately? [ 22 ] The Commission submitted that the judicial review of the conflict decision should be severed, and heard separately from the judicial review of the reconsideration decision. In support of this position, the Commission referred the Court to Rule 18.01 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D , which permits consolidation of proceedings in certain circumstances. Rule 18.01 states, as follows: 18.01.

Where two or more proceedings are pending in the Court and it appears to the Court that (

a) some common question of law or fact arises in both or all of them; (

b) the right to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or (

c) for some other reason it is desirable to make an order under this rule, the Court may order the proceedings to be consolidated on such terms as it thinks just, or may order them to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after the determination of any other of them. [ 23 ] In reference to Rule 18.01, the Commission submitted that the judicial reviews of the two decisions do not have common questions of law and issues, and the facts underpinning the analysis for each are different.

Further, the Commission submitted that the relief available for each judicial review was separate and distinct. [ 24 ] The Commission elaborated that the conflict decision followed a hearing, and dealt with the issue of whether a conflict existed; and the sole remedy sought was the substitution of Solicitor Kennedy as counsel. The Commission further submitted that by contrast, the reconsideration decision required a determination as to whether the Adjudicator had jurisdiction to reopen a final procedural question.

Further, by seeking to combine the two issues, the Applicant is essentially putting fresh evidence before the Court which had been intended for a reconsideration hearing; however, the reconsideration hearing did not occur. Such materials, which had not been before the Adjudicator when making his conflict decision, would be before the Court should the Applicant be permitted to proceed with two judicial reviews in one application. [ 25 ] The Commission also suggested that there was not even a “decision” made on December 2, 2020 which would be available for review.

The Commission stated this at paragraph 4 of its brief, as follows: “4. The Commission submits that while it may be open to Simmons to ask a court to review the Conflict Decision, there is no such “decision” of December 2, 2020 available for review.

Under a separate application, it may be open to the Applicant to seek a remedy of a prerogative writ order to compel the adjudicator to hear an application and make a decision, however no such decision was issued by the adjudicator that can now be reviewed… .” [ 26 ] In response to these submissions, the Applicant submitted that there is nothing unusual about the “same transaction or series of transactions being made the subject of a single judicial review application” (paragraph 11 of the Applicant’s reply brief). In support of

this submission, the Applicant referred to Justice Boone’s decision in Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland and Labrador , 2020 NLSC 34 ; affirmed at 2021 NLCA 26 . In that case, Justice Boone reviewed and quashed a decision of the Minister, as well as a reconsideration decision. [ 27 ] At the outset of the analysis on this issue, I find that I do not agree with the Commission’s suggestion that the Adjudicator’s correspondence dated December 2, 2020 is not a “decision”.

The December 2, 2020 correspondence from the Adjudicator reflects his decision not to hear the application for reconsideration, based on the Adjudicator’s determination that he did not have authority to do so. [ 28 ] Further, after considering the submissions of Counsel, I agree that there is no persuasive reason why the Court cannot proceed to review both decisions of the Adjudicator in this matter.

As noted by the Applicant, the record filed by the Commission already covers both decisions under review; tabs 1 to 10 of the record deal with the conflict decision, and tabs 11 to 12 deal with the reconsideration decision. It stands to reason that both decisions should be heard together. The decisions are preliminary decisions in the same proceeding; and the background for both decisions is the same. In any event, the decisions are clearly related; the conflict decision is the decision sought to be reconsidered.

It is practical to judicially review both decisions at the same time; and the Court shall proceed to do so. ISSUE 2: What documents should be before the Court for this application? [ 29 ] Tabs 1 through 10 of the record filed by the Commission included the public complaint, the Commissioner’s decision to refer the matter to an adjudicator, other preliminary decisions of the Adjudicator, affidavit evidence, the transcript of the conflict hearing, and the conflict decision. Tab 11 of the record is the correspondence/email to the Adjudicator from Solicitor Coffey requesting reconsideration of the conflict decision.

Tab 12 is the Adjudicator’s reconsideration decision, which is a correspondence dated December 2, 2020, in which the Adjudicator’s decision was that he lacked authority to reconsider the conflict decision. [ 30 ] The Commission took issue with several documents which were attached as schedules to the amended application for judicial review. Specifically, the Commission sought to strike schedules M, N, O, P and Q attached to the application.

Schedules N and Q of the judicial review application are the same as tabs 11 and 12 of the record filed by the Commission. [ 31 ] The Applicant agreed “to have only the records filed as part of the record for Judicial Review to be the record on this judicial review application” (paragraph 15 of the Applicant’s reply brief). More specifically, the Applicant agreed that the documents at tabs 1 through 10 of the record are to be used for review of the conflict decision; and tabs 11 and 12 of the record are to be used to review the reconsideration decisions.

Based on this agreement, I will only consider the Commission’s request to strike tabs 11 and 12 of the record, which are the same as schedules N and Q of the application. [ 32 ] As stated, tab 11 of the record is the correspondence from Solicitor Coffey to the Adjudicator requesting reconsideration of the conflict decision. The Commission characterized tab 11 as “fresh evidence”, which is not grounded by affidavit. However, I agree with the Applicant’s submission that it is not “fresh evidence”.

Rather, it was a document that was before the Adjudicator which initiated the Adjudicator’s decision of December 2, 2020. The Commission itself included it as tab 11 in the record for judicial review. Tab 11 shall remain part of the record for consideration by the Court in this application. [ 33 ] With respect to tab 12, I have already determined that the reconsideration decision and the conflict decision can be reviewed in the same application. As a result, it is appropriate for tab 12 to remain as part of the record for consideration by the Court in this application.

ISSUE 3: Is this application for judicial review premature? [ 34 ] The Commission and the Chief of Police asserted that this application for judicial review was premature. The Commission submitted that the conflict decision should not be judicially reviewed until after completion of the hearing, and a decision on the merits of the public complaint. The Chief of Police also submitted that the conflict decision should not be reviewed until after the hearing and decision on the merits of the complaint.

In addition, the Chief of Police took the position that the conflict decision would be considered under the statutory appeal mechanism contained in the RNC Act . The Chief of Police submitted that the statutory appeal mechanism is an adequate alternative remedy to an interim judicial review. [ 35 ] In the meantime, the parties had all agreed to postpone the public complaint hearing on the merits, pending the outcome of this judicial review application. As submitted by the Applicant, this was a pragmatic decision by the parties, even though judicial review of interim decisions is generally not permitted.

Rather, judicial review of such preliminary decisions is permitted only in exceptional circumstances. The Commission and the Chief of Police both submitted that such exceptional circumstances do not exist in this matter. [ 36 ] As noted by the Applicant, the Commission and the Chief of Police are in essence suggesting that the Applicant should complete the hearing process, without counsel of his choice; and then subsequently challenge the conflict decision, if the Applicant is unsatisfied with the order of the Adjudicator. [ 37 ] Further on this point, the Applicant suggested that

section 36 of the RNC Act does not provide a general statutory right of appeal providing redress on all issues or errors. Rather, the statutory right of appeal in the RNC Act limits an appeal to an “order or decision” of the adjudicator. Section 36(1) of the RNC Act states, as follows: 36.

(1) The complainant or the police officer who is the subject of the complaint may appeal an order or decision of the commissioner under paragraph 22.1(a), subsection 22(9), 28(1), 28(1.1) or of the adjudicator under

section 33 by way of application to the Trial Division. [ 38 ]

Section 33 of the RNC Act specifically identifies the orders and determinations which can be made by an adjudicator.

Section 33 states, as follows: 33.

(1) Following a hearing not respecting the chief an adjudicator shall make a determination on the balance of probability and may

order (

a) that the decision appealed from be confirmed; (

b) that the police officer who is the subject of the complaint (

i) comply with standards of police service prescribed in the regulations, (ii) enter a rehabilitative or further training program which the adjudicator considers necessary, (iii) be reinstated with or without a reprimand, (iv) where he or she is not a commissioned officer, not be considered for promotion for a time period of up to 3 years, (

v) where he or she is not a commissioned officer, be demoted permanently or for a specified period, (vi) where he or she is not a commissioned officer, be suspended with or without a salary for a specified period of time, and (vii) where he or she is not a commissioned officer, be dismissed from his or her position with the constabulary; (

c) that, where the police officer who was the subject of the complaint conducted himself or herself in a proper manner, he or she be compensated for the reasonable costs incurred by him or her as a result of an investigation, a hearing or both; (

d) that the police officer who was the subject of the complaint pay the reasonable costs incurred by the constabulary in an investigation and discipline of that police officer by the chief; and (

e) that the police officer who was the subject of the complaint pay the reasonable costs incurred by the commission in conducting an investigation, a hearing or both.

(2) Following a hearing under this Part respecting a commissioned officer, an adjudicator shall make a determination on the balance of probability and may recommend to the minister that (

a) a commission granted under subsection 4(4) be revoked; (

b) the commissioned officer not be considered for promotion for a period of up to 3 years; (

c) the commissioned officer be demoted; and (

d) the commissioned officer be suspended with or without a salary for a specified period of time or dismissed from his or her office as commissioned officer.

(3) Following a hearing respecting the chief, the adjudicator shall make a determination on the balance of probability and may recommend in writing to the minister that the chief (

a) comply with standards of police service prescribed in the regulations; (

b) enter a rehabilitative or further training program which the adjudicator considers necessary; (

c) be reprimanded; (

d) be demoted permanently; (

e) be dismissed from his or her office as chief; (

f) be suspended or further suspended with or without a salary for a specified period of time; (

g) where found to have conducted himself or herself in a proper manner respecting the matter of complaint, be compensated for reasonable costs incurred by him or her as a result of an investigation, a hearing or both; and (

h) except in the circumstances referred to in paragraph (g), pay the reasonable costs incurred by the commission in conducting an investigation, a hearing or both.

(4) An order or recommendation of an adjudicator shall be made in writing, together with a statement of the reasons for the order or recommendation, and a copy shall be provided to the commissioner, the chief and all parties.

(5) The minister shall consider a recommendation made under subsection (2) or (3) and recommend a course of action based upon that recommendation to the Lieutenant-Governor in Council.

(6) The Lieutenant-Governor in Council shall consider the recommendation of the minister under subsection (5) and may order that arecommendation made under subsection (2), (3) or (5) be implemented.

(7) Following a hearing under this Part, where an adjudicator concludes that the actions of a complainant in making a complaint wereunfounded, the adjudicator may order that the complainant pay the reasonable costs incurred by the commission in conducting aninvestigation, a hearing, or both.

(8) An order of an adjudicator shall be binding on all parties.

(9) Where a person is ordered to pay costs under this section, he or she may apply to have those costs taxed in accordance withthe Judicature Act.

(10) Notwithstanding paragraphs (1)(

d) and (e), 3(

h) and subsection (7), costs shall not be assessed against a person for expensesincurred by delays or other proceedings commenced which were beyond the control of that person. [39] I agree with the Applicant’s submission that the Adjudicator’s conflict decision does not fall under the definition of an order ordecision made by an adjudicator, pursuant to

section 33 of the RNC Act. Rather, the orders to be made under

section 33 pertain to anadjudicator’s decision regarding the merits of a public complaint. The conflict decision is a preliminary decision, separate and distinctfrom the decision to be made by the Adjudicator respecting the merits of the complaint. Consequently, the conflict decision, in itself,does not engage the limited statutory right of appeal mechanism under

section 36 of the RNC Act. Rather, the statutory right of appealunder the RNC Act is limited to decisions and orders made under

section 33. [40] As submitted by the Applicant, the right of judicial review is not precluded by a limited statutory right of appeal. This wasstated at paragraph 52 in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 , 2019 S.C.C. 65(“Vavilov”), as follows: 52 Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to thetypes of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisionsthat may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to theparty or parties that may bring an appeal.

However, the existence of a circumscribed right of appeal in a statutory scheme does noton its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism doesnot apply, or by individuals who have no right of appeal.

But any such application for judicial review is distinct from an appeal, andthe presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appealmechanism. [emphasis added] [41] Based on the above instruction in Vavilov, I conclude that although the conflict decision does not, in itself, engage the statutoryappeal mechanism under the RNC Act, the conflict decision can still be judicially reviewed. For the same reasons, the reconsiderationdecision can also be judicially reviewed.

The question remains as to whether the application for judicial review of these decisions can beconsidered prior to completion of the hearing, and a decision on the merits of the complaint. [42] On the issue of prematurity, the Applicant referred the Court to the decision of the Ontario Court in College of Veterinarians ofOntario v. Mitelman, 2015 ONSC 484 (“Mitelman”). Like this case, in Mitelman the applicant sought judicial review of a tribunal’sdecision to remove a lawyer based on conflict of interest.

The prematurity principle was considered, and the Ontario Court determinedthat the application was not premature due to the “real unfairness” of depriving the Applicant of the counsel of his choice. They statedthis at paragraphs 5 to 7 of the Mitelman decision, as follows: 5 On the issue of prematurity, I acknowledge that there is a general rule that the fragmentation of proceedings is to beavoided: Haigh v. College of Denturists (Ontario), [2011] O.J. No. 1851 (Ont. Div. Ct.). 6 That general rule is not without exceptions, however. As was observed in Lifford Wine Agencies Ltd. v.

Ontario (Alcohol &Gaming Commission) (2005), (ON CA), 76 O.R. (3d) 401 (Ont. C.A.) by Cronk J.A. at para. 43: This general rule, however, is not absolute and should not be applied rigidly if there is a prospect of real unfairness through, for example,the denial of natural justice.

In these circumstances, which will arise infrequently, the courts will intervene before completion of anadministrative hearing and prior to the exhaustion of all alternative remedies. [citation omitted] 7 In my view, the procedural ruling made in this case is one that would involve a breach of natural justice, and thus justify theintervention of this court. It is a ruling that, if it stands, will visit a real unfairness on Dr. Mitelman by depriving him of the counsel of hischoice. While counsel of choice is not an absolute entitlement, it must only be interfered with for very good cause. It will be self-evident

that if the hearing proceeds, and an adverse finding is made against Dr. Mitelman, and the order removing Mr. Klug is found to havebeen wrongfully granted, the entire proceeding will have to be redone. However, even if Dr. Mitelman does not have an adverse findingmade against him, there is a very real issue whether he should be required to run that risk without having the counsel that he wishes toact for him. Consequently, very real issues of fairness are raised.

I do not view this application, therefore, as being premature. [43] The Chief of Police submitted that the Mitelman decision is distinguishable from the Applicant’s case. The Chief of Policesubmitted (at paragraph 10 of the Chief’s brief) that in Mitelman it was “sheer conjecture” that a conflict of interest arose for the lawyerinvolved; and there was no issue for which the lawyer would have to conduct cross-examination of the former client. The Ontario Courtfurther decided that the former client and Mitelman were on the same side.

By contrast, in the Applicant’s case, the Adjudicator hadfound that there were adverse interests between the Applicant and Sergeant Cole in relation to the civil proceeding, where both arenamed as defendants. [44] With respect to these submissions by the Chief of Police, and as discussed later in this decision, in my view the Adjudicator’sfinding of adverse interests is speculative, and also based on “sheer conjecture”. [45] Further on this point, I agree with the reasons of the Ontario Court in Mitelman (at paragraph 7), and find that denying theApplicant his counsel of choice would likely “visit a real unfairness” on the Applicant, in the event that the Adjudicator’s conflictdecision was not reviewed until after the hearing on the merits of the complaint.

As stated in Mitelman, if the determination from thehearing on the merits of the complaint is unfavourable to the Applicant, and the conflict decision is then subsequently determined tohave been in error or unreasonable, then the proceeding will have to be heard again.

Further, as found by the Ontario Court in Mitelman,even if the determination from the hearing on the merits is favourable to the Applicant, then “there is a very real issue whether heshould be required to run that risk without having the counsel he wishes to act for him” (paragraph 7 of Mitelman). [46] At the same time, however, the Court is cognizant that it is a rare exception which would justify an application to intervene inan interlocutory decision made by an administrative tribunal.

On this point, the Commission referenced the decision of Garrick v.Amnesty International Canada, 2011 FC 1099 , 2011 F.C. 1099, where the Federal Court comments on the narrow approach fordetermining what constitutes “exceptional circumstances” permitting premature court intervention. They stated at paragraph 51, asfollows: 51 … A review of the case law shows that the "exceptional circumstances" allowing the courts to intervene and to reviewinterlocutory decisions have been quite narrowly defined.

While exceptional circumstances may not be exhaustively defined, courts haveheld that such will exist when the impugned decision is dispositive of a substantive right of a party (Canada v. Schnurer Estate, (FCA), [1997] 2 F.C. 545 [cited above]), raises a constitutional issue (Attorney General (Que.) and Keable v. AttorneyGeneral (Can.) et al., (SCC), [1979] 1 S.C.R. 218 (Keable)), or goes to the legality of the tribunal itself (Cannon v.Canada (Assistant Commissioner RCMP), (FC), [1998] 2 F.C. 104 (T.D.)).

More recently, the Federal Court ofAppeal has gone so far as to say that even those circumstances may not qualify as "exceptional", if there is an internal administrativeremedy available (Canada (Border Services Agency), above, at paragraph 33): Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This isshown by the narrowness of the "exceptional circumstances" exception.

Little need be said about this exception, as the parties in thisappeal did not contend that there were any exceptional circumstances permitting early recourse to the courts. Suffice to say, theauthorities show that very few circumstances qualify as "exceptional" and the threshold for exceptionality is high: see, generally, D. J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf) (Toronto: Canvasback, 1998), at paragraphs3: 2200, 3: 2300 and 3: 4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001), at pages 485-494.

Exceptionalcircumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction againstadministrative decision makers before or during their proceedings.

Concerns about procedural fairness or bias, the presence of animportant legal or constitutional issue, or the fact that all parties have consented to early [page178] recourse to the courts are notexceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised andan effective remedy to be granted: see Harelkin, above; Okwuobi, above, at paragraphs 38-55; University of Toronto v. C.U.E.W., Local2 (1988), (ON SC), 65 O.R. (2d) 268 (Div. Ct.).

As I shall soon demonstrate, the presence of so-called jurisdictionalissues is not an exceptional circumstance justifying early recourse to courts. [47] Further on this point, the Commission and the Chief of Police referred the Court to the decision in Ackerman v. OntarioProvincial Police Service, 2010 ONSC 910, where the Ontario Court also provided narrow examples of exceptional circumstances atparagraph 19, as follows: 19 That is not to say that the court will never consider a judicial review application while administrative proceedings are stillongoing.

However, the court will only do so rarely, when exceptional circumstances are demonstrated. For example, judicial interventionmay be warranted in situations where the tribunal clearly lacks jurisdiction to proceed (Roosma; Deemar v. College of Veterinarians ofOntario (2009), 2008 ONCA 600 , 92 O.R. (3d) 97 (C.A.)); where the decision, although interlocutory in most respects,determines a particular issue (as in Canada (Minister of Public Safety and Emergency Preparedness) v.

Kahlon (2005), 2005 FC 1000, 35 Admin L.R. (4th) 213 (FC) in which the summons issued would be dispositive of the witnesses' privacy rights); or, whereproceeding with the hearing would result in an unfair hearing or a breach of natural justice (McIntosh; People First of Ontario v.Regional Coroner of Niagara (1992), (ON CA), 6 O.R. (3d) 289 (C.A.)).

Even in those extreme situations, the remedyis discretionary and will be exercised sparingly. [48] In reference to these cases, the Commission submitted that whether there has been a breach of natural justice by depriving theApplicant of the counsel of his choice requires consideration of the entire circumstances. In the circumstances of this case, theCommission submitted that the Adjudicator provided a decision which thoughtfully considered the principles and the law.

TheCommission submitted that there was no breach of natural justice. [49] The Chief of Police further referred the Court to the case of Thielmann v. The Association of Professional Engineers andGeoscientists of the Province of Manitoba, 2020 MBCA 8 (“Thielmann”), where the Manitoba Court of Appeal reviewed factors to

consider when determining whether there are exceptional circumstances permitting early court intervention. At paragraphs 49 and 50 ofThielmann, the Manitoba Court of Appeal stated as follows: 49 In conclusion, the courts have not provided a definition of "exceptional circumstances" with respect to the prematurity principle.The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules. The list offactors to be considered is not closed and courts will not have to apply every factor, but only those that are relevant. 50 Among the factors that might be considered are : (

i) hardship/prejudice (including irreparable harm, urgency, and excessivedelay); (ii) waste of resources if judicial review is not proceeded with; (iii) delays if judicial review proceeds; (iv) fragmentation ofproceedings; (

v) strength of the case, including whether there is a clear abuse of process or proceedings that are so deeply flawed that itis clear and obvious that judicial review will be successful; and (vi) the statutory context, including whether there is an adequatealternative remedy.

Furthermore, weight should always be given to the overarching consideration that an administrative tribunal shouldbe given the opportunity to determine the issue first, and to provide reasons that can be considered by the court on any eventual review. [50] In reference to the Thielmann factors, the Chief of Police submitted that the Applicant has not demonstrated irreparable harm,urgency or excessive delay.

Further the Chief of Police submitted that the Applicant has failed to demonstrate that the case for judicialreview is strong, and requires the intervention of the Court to avoid an abuse of process; nor has the Applicant demonstrated that theproceedings are so flawed that the Court needs to intervene.

Finally, the Chief of Police submitted that there was an adequate alternativeremedy in the form of a statutory right of appeal. [51] With respect to the Thielmann factors, and in reply, the Applicant submitted that there would be significant hardship andprejudice if he is required to proceed to a full hearing without his preferred counsel of choice. Because the Adjudicator has stopped theproceeding, there is some urgency to have a determination made by the Court.

The Applicant further submitted that because theAdjudicator, with the parties’ consent, has decided to postpone the hearing pending the decision of this judicial review application, thishas delayed the start of the hearing, but not significantly.

Further, time and money will be wasted if the Applicant is required to gothrough the tribunal’s processes only to have the conflict decision, or the reconsideration decision, subsequently quashed on judicialreview. [52] Further on this, the Applicant submitted that because no evidence has yet been taken in the public complaint process, theconcern respecting fragmentation is “less significant” than if the “proceedings had been halted after evidence-taking had commenced”(paragraph 57 of the Thielmann case).

With respect to the strength of the case, the Applicant submitted he has put forth a strong case inrespect of both decisions, thus favouring proceeding with the judicial review. [53] Finally, with respect to the statutory context, the Applicant submitted that this factor also favours proceeding with this judicialreview. The Applicant referred to the Thielmann case (at paragraph 74) in which the legislation had provided “a full appeal againstfindings and orders of the discipline committee to the council and, thereafter, to the Court of Queen’s Bench”.

By contrast, as alreadydiscussed, the RNC Act has a limited statutory right of appeal. There is no statutory right of appeal with respect to the conflict decision;rather, the conflict decision is subject to judicial review. Consequently, the legislation does not preclude judicial review at this phase ofthe proceedings. [54] After considering the case law provided by all Counsel, and the extensive submissions, I conclude that this judicial reviewapplication is not premature. It should be determined prior to the hearing respecting the merits of the public complaint.

Based on thecircumstances of this case, I am satisfied that waiting to judicially review the conflict decision until after the decision respecting themerits of the public complaint, would cause the Applicant “real unfairness” (Mitelman, at paragraphs 6 and 7). As stated, I agree withthe Mitelman analysis. [55] Further, I agree with the Applicant’s assessment of the Thielmann factors. I have particularly considered the strength of theApplicant’s case. The Applicant has set forth a strong case for judicial review of the conflict decision, and has raised significant issuesof concern respecting that decision.

I have also considered the limited statutory right of appeal in the RNC Act, and the significanthardship and potential for prejudice to the Applicant if he is required to proceed to a full hearing without his counsel of choice. Thesefactors strongly support a finding that this judicial review application is not premature. It would be significantly unfair to the Applicantto wait to decide the issue. [56] I am persuaded that this is one of the rare and exceptional circumstances where the Court should hear and review aninterlocutory decision of an adjudicator, prior to a hearing on the merits.

A narrow definition of such exceptional circumstances was setforth in Garrick v. Amnesty International Canada, and Ackerman v. Ontario Provincial Police Service. Thielmann is a more recent casewhich also acknowledges exceptional circumstances are required. Nevertheless, Thielmann sets forth a manner of analysis to beundertaken when assessing the prematurity principle (at paragraphs 49 and 50 of Thielmann). I endorse the Thielmann factors as apractical manner of conducting this analysis; recognizing that the Thielmann factors are “not closed” (paragraph 49 of Thielmann).

Asstated above, the Thielmann factors favour proceeding to determine this application for judicial review. [57] Based on the foregoing, I find that the application for judicial review is not premature. ISSUE 4: What is the appropriate standard of review? [58] As referenced by all Counsel, the Supreme Court of Canada has provided a new framework for review of administrativetribunals in Vavilov, Bell Canada v.

Canada (Attorney General), 2019 SCC 66 , 2019 S.C.C. 66, and Canada Post Corp. v.Canadian Union of Postal Workers, 2019 SCC 67 , 2019 S.C.C. 67. [59] In accordance with Vavilov, the revised framework starts with the presumption of reasonableness as the appropriate standard ofreview for a court reviewing the merits of an administrative tribunal’s decision (paragraph 10 of Vavilov). This presumption ofreasonableness can be rebutted in two situations; if there is a statutory appeal mechanism in the legislation, or by rule of relevant law.

This is stated at paragraph 17 of Vavilov, as follows: 17 The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature hasindicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribesthe applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from anadministrative decision to a court, thereby signalling the legislature's intent that appellate standards apply when a court reviews thedecision.

The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires thatthe standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, generalquestions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two ormore administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers acomprehensive approach to determining the applicable standard of review.

As a result, it is no longer necessary for courts to engage in a"contextual inquiry" (CHRC, at paras. 45-47, see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriatestandard. [60] With respect to the standard of review of the conflict decision, the Applicant submitted that the presumption of reasonablenessis rebutted, and the standard of correctness applies.

More specifically, the Applicant submitted that the presumption is rebutted as thiscase requires consideration of a question of a lawyer’s conflict of interest, which is a question “of law of central importance to the legalsystem as a whole” (paragraph 17 of Vavilov). [61] To support the Applicant’s view, the Applicant submitted for the Court’s consideration the Alberta Court of Appeal’s decisionin A.U.P.E. v. U.N.A., Local 168, 2009 ABCA 33, leave to appeal dismissed at [2009] S.C.C.A. No. 119.

In that case the Alberta Courtof Appeal held that the appropriate standard of review “for the setting of the rules respecting conflicts of interest of lawyers iscorrectness” (paragraph 25 of A.U.P.E. v. U.N.A., Local 168). They further stated at paragraphs 23 to 25, as follows: 23 The Supreme Court has recognized that the correctness standard may apply if the issue is one of general law that is of centralimportance to the legal system as a whole and outside the tribunal's specialized area of expertise: Dunsmuir at para. 60.

The rulesrespecting conflicts of interest of lawyers fall into this category: Universal Workers at para. 29. This is not an issue on which the Boardhas any expertise, nor is it an issue particularly linked to labour relations. 24 The courts have an inherent jurisdiction to remove from the record lawyers who have a conflict of interest: MacDonald Estate atpara. 18. The Law Society also has jurisdiction to deal with conflicts. There is already the potential for lawyers to be the subject of atleast two inconsistent conflict regimes. It would be undesirable for there to be further rules or standards imposed.

For example, assumethat a particular matter engaged the jurisdiction of both the Labour Relations Board, and the Human Rights Commission. If the standardof review was reasonableness, it is possible that the lawyers involved might be subject to four separate sets of rules: the Court's, the LawSociety's, the Board's and the Commission's. For this reason as well the standard of review on the underlying rules regarding conflict ofinterest should be correctness: British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., (SCC), [1995] 2S.C.R. 739 (S.C.C.) at paras. 51, 78. 25 In

summary, the standard of review for the setting of the rules respecting conflicts of interest of lawyers is correctness. Thefindings of fact of the Board underlying this issue of law are entitled to deference, and the standard of review is reasonableness. Wherethe basic rules have a particular application in the labour law context, raising mixed questions of fact and law, deference is alsoappropriate. The standard of review on all other issues is reasonableness. [62] The Chief of Police agreed that correctness is the appropriate standard of review of the conflict decision.

The Chief of Policequalified this by suggesting correctness was the standard relating to the law of conflict of interest, but reasonableness applied to theAdjudicator’s factual findings or findings of mixed fact and law (paragraph 21 of the Chief’s brief). [63] By contrast, the Commission maintained the position that the appropriate standard of review of the conflict decision isreasonableness.

The Commission submitted that the Adjudicator did not set any rules as to what constitutes a lawyer’s conflict ofinterest; the rules are already established and codified by the Law Society of Newfoundland and Labrador, and the case law. Rather, theAdjudicator determined whether Solicitor Kennedy was in conflict when his firm, RMM, represented two police officers (the Applicantand Sergeant Cole) in relation to a single incident, with ongoing legal actions.

The Commission submitted that such was not a mattercentral to the legal system as a whole. [64] I agree with the Commission’s submission that reasonableness is the appropriate standard of review of the Adjudicator’sconflict decision. In A.U.P.E. v. U.N.A., Local 168, the issue before the Alberta Court of Appeal was much broader being “whether alaw firm’s previous retainer by the appellant union prevents it from continuing to act for the respondent union” (paragraph 1 of A.U.P.E.v. U.N.A., Local 168).

In the conflict decision, the Adjudicator was not setting general rules as to whether a law firm can represent morethan one police officer due to proceedings arising from the same incident. Further, as submitted by the Commission, the Adjudicator didnot “craft” rules of conflict of interest (paragraph 57 of the Commission’s brief). Rather, the rules of conflict considered by theAdjudicator already exist in case law, and the Law Society’s Code of Conduct.

The Adjudicator was applying the specific facts of thiscase to those rules, in order to determine if Solicitor Kennedy was in a conflict of interest. [65] As a result, the presumption of reasonableness has not been rebutted. Reasonableness will therefore be the standard of review Iapply to the conflict decision.

With respect to the reconsideration decision, the parties agreed the standard of review is reasonableness;and based on Vavilov, I agree. [66] Having determined a reasonableness review of the Adjudicator’s decisions is appropriate, I refer to paragraph 15 of Vavilovwhere the Supreme Court of Canada stated what differentiates a reasonableness review from a correctness review, as follows:

15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place. [ 67 ] Further in Vavilov , the Supreme Court of Canada instructed that the focus of a reasonableness review is on both the reasoning process and the outcome.

They stated at paragraphs 83 to 87, as follows: 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome. The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the "range" of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the "correct" solution to the problem. The Federal Court of Appeal noted in Delios v.

Canada (Attorney General) , 2015 FCA 117 , 472 N.R. 171 ( F.C.A. ) , that, "as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did": at para. 28; see also Ryan , at paras. 50-51.

Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. 84 As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first.

A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with "respectful attention" and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir , at para. 48 , quoting D. Dyzenhaus, " The Politics of Deference: Judicial Review and Democracy ", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286. 85 Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. 86 Attention to the decision maker's reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir , at paras. 47-49 .

In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes": para. 47. Reasonableness, according to Dunsmuir , "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", as well as "with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": ibid.

In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. 87 This Court's jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review.

Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács , 2018 SCC 2 , [2018] 1 S.C.R. 6 (S.C.C.) , at para. 12 . In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis.

This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process.

To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker. [ 68 ] Further at paragraph 96, as referenced by the Applicant, the Supreme Court of Canada in Vavilov instructed that if an outcome could be reasonable, but the decision engages an “unreasonable chain of analysis”, then the reviewing court should not attempt to “buttress” the tribunal’s decision, or “disregard the flawed basis for a decision and substitute its own justification for the outcome”.

They stated this, as follows: 96 Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines , at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken. [ 69 ] Further elaboration on what makes a decision unreasonable was provided at paragraphs 99 to 101 in Vavilov , as follows:

99 A reviewing court must develop an understanding of the decision maker's reasoning process in order to determine whether thedecision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks ofreasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legalconstraints that bear on the decision: Dunsmuir , at paras. 47 and 74; Catalyst , at para. 13. 100 The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on thisbasis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said toexhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merelysuperficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decisionsimply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by theparty challenging the decision are sufficiently central or significant to render the decision unreasonable. 101 What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first isa failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of therelevant factual and legal constraints that bear on it.

There is however, no need for reviewing courts to categorize failures ofreasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the typesof issues that may show a decision to be unreasonable. [70] Finally, the Supreme Court of Canada in Vavilov further explained that a reasonable decision is “internally coherent” and basedon reasoning that is “both rational and logical” (see paragraph 102 of Vavilov).

Further, a decision will be unreasonable “if the reasonsfor it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain ofanalysis…” (paragraph 103 of Vavilov). Finally, a reasonable decision “must be justified in relation to the constellation of law and factsthat are relevant to the decision… ” (paragraph 105 of Vavilov). [71] The foregoing principles from Vavilov will be considered when conducting an analysis of the Adjudicator’s decisions.

ISSUE 5: Should the conflict decision be quashed? [72] To determine whether the conflict decision was reasonable, it is necessary to consider the Adjudicator’s reasoning process andoutcome (Vavilov, at paragraph 83). [73] In his written decision, after setting forth the background and positions of the Commission and Constable Simmons, theAdjudicator identified the issue as: “Is there a Conflict of Interest?” (page 4 of the conflict decision).

He commenced his analysis byreferring to the definition of conflict of interest as contained within the Code of Professional Conduct of the Law Society ofNewfoundland and Labrador, and he stated at page 4 of his decision, as follows: “The Code (most recently amended version January 2020) defines a conflict of interest as: the existence of a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected bythe lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person.” [74] The Adjudicator then referred to the “two-question test” for determining whether a conflict of interest exists.

This test is fromthe Supreme Court of Canada’s decision in MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235 (at paragraph 45)and the Adjudicator stated at page 4 of his decision, as follows: “As recently noted by Justice Chaytor in Alderwood Estate and Retirement Centre Ltd. v. Regular, 2019, NLSC, citing MacDonaldEstate v. Martin, 1990, SCC, the Supreme Court of Canada has prescribed a two-question test to be asked to determine if a conflict ofinterest exists:

(1) Did the lawyer receive confidential information attributable to the solicitor and client relationship relevant to the matter at hand?and, if so,

(2) Is there a risk that it will be used to the prejudice of the client?” [75] With respect to question 1, the Adjudicator stated at pages 4 and 5 of his decision as follows: “Question 1 can be answered in the affirmative. Obviously there exists a solicitor client relationship as between RMM and Sgt. Cole. The retainer of RMM by Sgt. Cole is sufficiently related to the public complaint of which Constable SS is partially the subject, as it isalso entirely in relation to the November 8 2017 events. The events of November 8 2017 are central to the retainer of RMM by both Sgt.Cole and Constable SS.

Further, while no evidence was proffered at the within Application that confidential information was or is beingtransmitted as between Mr. Drover and Mr. Kennedy, I also cannot say that there wasn’t or isn’t. This is not at all to cast aspersionsupon patently reputable and established Counsel such as Mr. Drover or Mr. Kennedy, but only to adhere to comments by Justice Sopinkain MacDonald Estate and relied upon by Justice Adams in Dobbin et al v. Acrohelipro Global Services Inc. et al., 2004, NLSC(decision affirmed on appeal) at paragraph 12 as to a necessary inference:

In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge.

Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication.” [emphasis by the Adjudicator] [ 76 ] The Adjudicator further stated at page 5: “The ability to make such inference was also noted by Justice Chaytor in Alderwood at paragraph 19: … Once the applicant has shown that there existed a previous solicitor-client relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted. … Moreover, as to discharging the burden and based on the testimony of Mr.

Drover, there seem to have been no new and proactive measures taken either by way of physical or electronic barriers to establish an ethical wall as between Mr. Drover’s files and Mr. Kennedy’s files. I don’t see this as something that could withstand the scrutiny of the reasonably informed member of the public.” [ 77 ] With respect to the second of the two questions from the MacDonald Estate v. Martin test, the Adjudicator also answered in the “affirmative”. He stated at page 5 of his decision, as follows: “Question 2 can also be answered in the affirmative.

In Alderwood , Justice Chaytor said at paragraph 20: With respect to the second question posed in the MacDonald Estate test, the Supreme Court of Canada made clear that the existence of relevant confidential information is such as to render the lawyer's disqualification to be automatic.” [ 78 ] The Adjudicator then proceeded to conclude that the “legal interests” of Constable Simmons and Sergeant Cole are “directly adverse to each other”. He explained at pages 5 and 6 of his decision, as follows: “The legal interests of Constable SS and Sgt. Cole are directly adverse to each other.

The hearing of the public complaint may indeed put Mr. Kennedy in a position whereby he cross examines Sgt. Cole in respect of his actions on November 8 2017, to the benefit of Constable SS, but to the detriment of Sgt. Cole. This would be a breach of RMM’s duty to Sgt. Cole. Conversely, (but less likely) is the scenario where the full extent of vigorous cross examination of Sgt. Cole is not employed by Mr. Kennedy, when perhaps it should have been, in a potential effort to maintain the RMM fiduciary duty to Sgt. Cole, thereby breaching that same duty to Constable SS. That said, it is possible that Mr.

Kennedy would not see fit to cross examine Sgt. Cole. But that does not remove the almost certainty that Mr. Kennedy would still conduct a direct examination of Constable SS, with the possibility of a breach of the RMM fiduciary duty to Sgt. Cole again rearing its head. Taking it a step further, transcripts of such examinations could end up forming part of the civil litigation involving both Constable SS and Sgt. Cole, having an impact there as to the degree of possible culpability attributed to each officer.

Such transcripts might also find their way into a new trial, should the remedy of a new trial which is sought in the Notice of Appeal relating to the Sgt. Cole internal disciplinary matter, be granted.” [ 79 ] The Applicant submitted that the Adjudicator incorrectly applied the test from MacDonald Estate v. Martin , because the Adjudicator did not address the lead-up question suggested by the Supreme Court of Canada, to be considered before applying the two- question test. More specifically, at paragraphs 44 and 45 of MacDonald Estate v.

Martin , the Supreme Court of Canada stated, as follows: 44 What then should be the correct approach? Is the "probability of mischief" standard sufficiently high to satisfy the public requirement that there be an appearance of justice? In my opinion, it is not. This is borne out by the judicial statements to which I have referred and to the desire of the legal profession for strict rules of professional conduct as its adoption of the Canadian Code of Professional Conduct demonstrates. The probability of mischief test is very much the same as the standard of proof in a civil case. We act on probabilities.

This is the basis of Rakusen. I am, however, driven to the conclusion that the public, and indeed lawyers and judges, have found that standard wanting. In dealing with the question of the use of confidential information we are dealing with a matter that is usually not susceptible of proof. As pointed out by Fletcher Moulton L.J. in Rakusen, "that is a thing which you cannot prove" (p. 841). I would add "or disprove". If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be occasioned.

Since, however, it is not susceptible of proof, the test must be such [page1260] that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest?

In this regard, it must be stressed that this conclusion is predicated on the fact that the client does not consent to but is objecting to the retainer which gives rise to the alleged conflict . 45 Typically, these cases require two questions to be answered:

(1) Did the lawyer receive confidential information attributable to a

solicitor and client relationship relevant to the matter at hand?

(2) Is there a risk that it will be used to the prejudice of the client? [emphasis added] [80] As stated, the Applicant submitted that the Adjudicator did not consider the “lead-up question” which was a prerequisite forapplying the two-question test. The lead-up question to be considered was whether “the client does not consent to but is objecting to theretainer which gives rise to the alleged conflict” (paragraph 44 of MacDonald Estate v. Martin).

The Applicant submitted that this lead-up question was ignored, and not referenced by the Adjudicator in the conflict decision. [81] The Applicant further noted that the MacDonald Estate v. Martin case dealt with a lawsuit where a former solicitor for theappellant transferred her employment to the law firm representing the respondent. In that case, the appellant objected to the law firm ofthe respondent continuing to act for the respondent. Likewise, in Alderwood Estate and Retirement Centre Ltd. v.

Regular, 2019 NLSC87, a defendant sought an order removing the lawyers acting for the plaintiffs by asserting that there was a conflict of interest arisingfrom the plaintiffs’ lawyers having represented the defendant in previous retainers.

Such is clearly not the case here, as neither SergeantCole nor Constable Simmons objected to their both being represented by the law firm of RMM. [82] The Applicant again referred to the Mitelman decision in which the College of Veterinarians, not the lawyer’s clients, brought amotion to remove a lawyer on the basis of an assertion of conflict of interest, arising from the lawyer’s former and recent representationof another veterinarian, who was also involved in the disciplinary matter before the College.

The Ontario Court allowed the applicationfor judicial review, and noted that when no concern was raised by a client, such differentiated the case from MacDonald Estate v.Martin. They stated this at paragraph 10 in Mitelman, as follows:: 10. … The presumption that confidential information was obtained and that it could be shared with others to the detriment of theformer client largely disappears where the former client and the remaining client remain on the same side and the former client raises nosuch concern.

This is a feature of this case that differentiates it from another authority relied upon by the College, namely, MacDonaldEstate v. Martin, (SCC), [1990] 3 S.C.R. 1235 (S.C.C.). [83] Further on this, the Applicant again referred to the Alberta Court of Appeal decision in A.U.P.E. v. U.N.A., Local 168. Atparagraph 42 of that decision, the Albert Court of Appeal indicated that the presumptions respecting confidential information (fromMacDonald Estate v. Martin) do not operate when the clients consent (and therefore do not object to the retainer).

They stated, asfollows: 42 A law firm acting for multiple clients with express consent should still be presumed to have a duty to keep confidentialinformation of each client confidential, and to ensure that it is not misused. However, where the clients have given a generic consent forthe firm to continue to act for both of them, some of the presumptions in MacDonald Estate can no longer operate with full vigour.

Asthe Court noted in MacDonald Estate at para. 44: In this regard, it must be stressed that this conclusion [respecting confidential information] is predicated on the fact that the client doesnot consent to but is objecting to the retainer which gives rise to the alleged conflict. In particular, where (as here) different lawyers are acting for the different clients, the rule that information known to one lawyer ispresumed to be known by the whole firm, and is presumed to be passed on, is less compelling.

The clients must have consented to thisstate of affairs, even if they did not consent to the misuse of their confidential information. Where there is express consent to act for twoclients, the mere existence of confidential information should not raise a presumption that it has been passed to another lawyer, ormisused to the detriment of the client. This is particularly so where, as the Board found, there are a limited number of counsel practicingin this specialized field: Strother at paras. 55, 62; O.P.C.M.I.A. U.S.A. & Can., Local 222 v. Alberta, 2008 ABQB 225, 91 Alta.

L.R. (4th)230 at paras. 35, 41. [84] In response, the Commission suggested that the Adjudicator did not need to reproduce entire quotes from MacDonald Estate v.Martin to prove that he considered the so called “lead-up question”. The Commission suggested that the Adjudicator’s reasoning can beinferred, as the Court must review the decision in a holistic fashion (paragraph 102 of Vavilov). [85] The Commission further suggested that the Applicant misinterpreted the “lead-up question” in MacDonald Estate v. Martin. The Commission submitted that it is not relevant who points out the conflict.

Rather, MacDonald Estate v. Martin is concerned with aclient consenting after having been “informed of the conflict, risk and potential jeopardy” (paragraph 84 of the Commission’s brief). [86] Further on this, the Commission submitted that the Adjudicator determined that the Applicant did not have an appreciation ofexactly what he was consenting to.

The Commission submitted that the Adjudicator’s analysis is reasonable, logically coherent,transparent and justifiable in accordance with the law and facts. [87] Similarly, the Chief of Police submitted that because the Adjudicator made a finding regarding the inadequacy of the consent,such showed that he was alive to the issue of consent, as is required to engage the two-question test from MacDonald Estate v.

Martin. [88] In reply, the Applicant maintained the position that the Adjudicator’s reasons gave no indication, whatsoever, that heconsidered whether the two-question test was applicable, even though the clients were not objecting to the retainer of Solicitor Kennedy. Further, the Applicant maintained that contrary to the Commission’s submission, it is relevant who points out the conflict. [89] I agree with the Applicant that consideration of the two-question test set forth in MacDonald Estate v. Martin is based upon oneof the clients first objecting, and asserting a conflict of interest.

At paragraph 44, the Supreme Court of Canada referred to the“overriding policy” being that the conflict of interest test must be such that “the reasonably informed person would be satisfied that no

use of confidential information would occur”. It bears repeating that they further stated: “In this regard, it must be stressed that thisconclusion is predicated on the fact that the client does not consent to but is objecting to the retainer which gives rise to the allegedconflict”. [90] I also agree with the Applicant that the Adjudicator did not appear to consider the “lead-up question” to the “two-questiontest”.

Specifically, I am not persuaded that the Adjudicator was alive to the requirement that a client must be objecting to the retainerbefore considering the two questions articulated in MacDonald Estate v. Martin case. In other words, a client’s objection is what triggersconsideration of the two-question test for determining if a disqualifying conflict of interest exists; and the ensuing presumption regardingimparting confidential information. As submitted by the Applicant, neither Constable Simmons nor Sergeant Cole objected.

Rather, theobjection was raised by the Commission, who applied to have Solicitor Kennedy removed as solicitor of record for the Applicant due toalleged conflict of interest. [91] Further on this, the Adjudicator’s finding that the clients had not adequately consented does not show that he considered thelead-up question. Rather, the Adjudicator’s determinations regarding the inadequacy of the consents followed his finding a conflict ofinterest, and determining that the legal interests of the officers were “directly adverse to each other”.

His analysis regarding theadequacy of the consents clearly related to his analysis of the bright line rule; not his analysis under MacDonald Estate v. Martin. [92] There are circumstances where the adequacy of clients’ consents are relevant when considering whether a lawyer has adisqualifying conflict of interest. However, where the clients do not object, the analysis from MacDonald Estate v. Martin and thepresumptions regarding confidential information do not apply. [93] Based on my finding that the Adjudicator was not alive to the requirement that the two-question analysis from MacDonaldEstate v.

Martin applies in a circumstance where a client first objects to the retainer, in my view the Adjudicator’s analysis andconclusions regarding the two questions from MacDonald Estate v. Martin was “reached on an improper basis” (Vavilov at paragraph87). His implicit conclusion of conflict of interest, and application of the presumption that confidential inform

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