Date: 20100108
Docket: T-574-09
Citation: 2010 FC 20
Ottawa, Ontario, January 8, 2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MANUEL
PIZARRO
Applicant
and
ATTORNEY GENERAL FOR CANADA
and
APPROPRIATE OFFICER “E” DIVISION OF THE
ROYAL CANADIAN
MOUNTED POLICE
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
This
judicial review concerns the discipline of a RCMP member and centres on
rejection of expert evidence from a RCMP authorized psychologist that there was
a causal connection between the member’s “disgraceful conduct” and the stress
created by his job.
[2]
On
February 27, 2009, the then acting Commissioner of the RCMP (Commissioner)
denied Pizarro’s appeal of an Adjudication Board’s (Board) decision made
November 18, 2005 directing that Pizarro resign from the Force within fourteen
(14) days or be dismissed. The Commissioner’s decision was made after his
receipt of the RCMP External Review Committee (ERC) recommendation to dismiss
the appeal.
[3]
Pizarro
admitted that he had acted in a disgraceful manner contrary to s. 39(1) of the Royal
Canadian Mounted Police Act (RCMP Act) after pleading guilty to attempted
fraud over $5,000 contrary to the Criminal Code. The only issue before
the Board and the Commissioner was the imposition of an appropriate sanction.
Section 39(1)
reads:
|
39.
(1) Every member alleged to have contravened the Code of
Conduct may be dealt with under this Act either in or outside Canada,
(a)
whether or not the alleged contravention took place in or outside Canada; and
(b)
whether or not the member has been charged with an offence constituted by,
included in or otherwise related to the alleged contravention or has been
tried, acquitted, discharged, convicted or sentenced by a court in respect of
such an offence.
|
39.
(1) Tout membre à qui l’on impute une contravention au
code de déontologie peut être jugé selon la présente loi au Canada ou à
l’extérieur du Canada :
a)
que la contravention alléguée ait été ou non commise au Canada;
b)
que le membre ait été ou non accusé d’une infraction constituée par la
contravention alléguée, en faisant partie ou s’y rattachant, ou qu’il ait ou
non été jugé, acquitté, libéré, reconnu coupable ou condamné par un tribunal
relativement à une telle infraction.
|
II. FACTUAL
BACKGROUND
A. General
[4]
An
Agreed Statement of Facts as to the disgraceful conduct was used at both the
Board and Commissioner level. It is the interpretation of the events leading up
to the disgraceful conduct – the attempted fraud - which is in issue.
[5]
Pizarro
joined the RCMP in 1996. His first posting was to Gibson, British
Columbia on the “Sunshine Coast”.
[6]
He
became involved in undercover drug investigations and was apparently good at
this difficult work. His evidence was that he received death threats which were
never addressed by his superiors. The most that was done was to move him to a
neighbouring detachment on the Sunshine Coast, still close to
those who were threatening him.
[7]
Dr.
Nicole Aubé, a clinical psychologist and a consultant for the RCMP for 18
years, originally saw Pizarro in 1999 and 2000 as part of the RCMP’s annual
undercover debriefing. Thereafter, she saw him as part of her clinical
practice. Her evidence is a critical element in this judicial review.
[8]
Pizarro
began seeing Dr. Aubé in her capacity as a psychologist working with the RCMP
in the Member Assistance Program. He was suffering from stress, extreme
depression and paranoia. Although his request for a transfer was denied, he
refused to take sick leave, apparently because of his sense of duty to continue
to serve as a police officer.
[9]
In
June 2001, Pizarro learned that he was the target of an undercover
anti-corruption investigation. He had been suspected of being a “dirty cop”;
the allegations included drug usage, sexual misconduct, assault and theft. He
took a polygraph test as part of the investigation and he passed that test.
[10]
At
this point it appears that he was cleared of suspicion but no steps were taken
to clarify that fact and requests for transfer from the Sunshine Coast were again
denied until the following year. In the interim, his working situation was
difficult as was his personal life. He felt distrust from his peers and his
10-year relationship fell apart in part due to the strain of the job and the
impact of the investigation.
[11]
Finally,
in 2002, Pizarro was transferred to Langley, British Columbia, not
particularly distant from the Sunshine Coast. According to the
evidence, he still suffered stress, anxiety and depression. He had not been
formally cleared of suspicion and his working circumstances were strained. His
work began to decline, he felt threatened by criminals in the area and a new
personal relationship with another detachment member collapsed.
[12]
Pizarro
continued to see Dr. Aubé intermittently, more so during the apparently
stressful times in the Spring and Summer of 2001, Spring 2003 and particularly
the Summer of 2003 just prior to the events which constituted the “disgraceful
conduct”.
[13]
Eventually,
in January 2004, rather than taking sick leave, Pizarro took an unpaid leave of
absence to return to his home in Montreal to attend university.
[14]
In
February 2005, while in Montreal, Pizarro received in a
blank envelope a report informing him of the nature and outcome of the
anti-corruption investigation. The allegations were found to be completely
baseless. This was the only step RCMP management took to clear Pizarro’s name.
There was no letter, much less an apology or recognition of the personal toll
on him nor was there any evidence of information conveyed to other RCMP members
acknowledging the baseless allegations.
[15]
The
Court has outlined these general facts because it is important to understand
this context in order to address the expert evidence issue which is at the root
of this judicial review.
B. Disgraceful
Conduct
[16]
In
July 25, 2003, Pizarro was involved in a single vehicle accident in which his
Honda motorcycle was damaged. He had basic insurance which did not cover this
incident. The bike was ridable and was not repaired.
[17]
On
August 11, 2003, Pizarro renewed his insurance, purchasing a comprehensive
policy. Thereafter, on October 23, 2003, he phoned in a report of the accident
claiming that he had struck a bird the previous day. Over the following months
he actively pursued his claim including having the bike inspected, making
regular inquiries and making a series of false statements.
[18]
It
was apparent that the insurer ICBC was suspicious of the claim, and pressed him
for more details. Eventually he withdrew the claim before any funds were paid
out.
[19]
Pizarro
was charged with attempted fraud over $5,000 under s. 380(1)(a) of the Criminal
Code. He pled guilty and was sentenced by Judge Angelomatis of B.C. Provincial
Court
on May 12, 2005.
[20]
In
a somewhat unusual endorsement of a convicted person, the learned judge
reluctantly concluded that because Pizarro is a police officer, the judge could
not, in the interests of the public, give him an unconditional discharge. The
judge imposes a sentence of one (1) day, deemed served.
[21]
In
rendering judgment, the learned judge accepted the evidence of the experts as
to his mental health and concludes that it was the RCMP that was ultimately
responsible for what happened. The learned judge’s specific words were:
I am going to make an aside here.
Constable Pizarro has in no way maligned or abused the RCMP. I, however,
sitting where I am, feel that I can make some comments that I can validly
confirm and corroborate, that they collectively, the RCMP, in his case passed
the buck, led to a situation where a member and his mental health was compromised,
and ultimately if anyone is responsible for what happened it is they.
[22]
The
learned judge noted in particular that there had never been an apology for the
anti-corruption investigation and the significant impact that the investigation
and the manner of handling it had on Pizarro’s personal and professional life.
[23]
The
learned judge found that the RCMP, instead of apologizing, transferred Pizarro
to an environment where he was clearly monitored, clearly being questioned and
where he was the subject of suspicion. These circumstances immediately predated
the “incident” – the attempted fraud.
[24]
The
learned judge had hoped that a disciplinary board would take his words into
account and that the RCMP would have the wherewithal to recognize the very
unusual and specific circumstances Pizarro was in and to continue to utilize
his skills.
[25]
In
November 2005, Pizarro went before an Adjudication Board made up of two
Superintendents and one Inspector. The AOR (appropriate officer’s
representative – essentially the prosecutor) called only one witness, the ICBC
claims adjuster who had dealt with the file.
[26]
Germane
to this judicial review is the fact that there was no evidence called as to the
loss of the “Commanding Officer’s confidence”. That issue was dealt with solely
through submissions of the AOR.
[27]
The
Member’s Representative (“MR” – a civilian RCMP member acting as defence
counsel) called five witnesses; two were character witnesses, Pizarro himself,
and the last two witnesses were psychologists, accepted by the Board as expert
witnesses.
[28]
The
first of these, Mr. Fournier, a clinical psychologist, conducted an independent
assessment of Pizarro in 2004. He testified that Pizarro had suffered from
anxiety and depression as early as 2001, forming his probable psychological
condition at the time of the incident. The residual effects were still present
in 2004 and required treatment.
[29]
Fournier
opined that the condition was related to the events surrounding the
anti-corruption investigation, relationship break-ups and persisting large
scale humiliation and distrust. Fournier concluded that Pizarro’s behaviour was
out of character, that it was highly unlikely he would engage in it again having
been successfully treated and that Pizarro had no personality disorders or
traits that would affect police work.
[30]
The
final witness, Dr. Aubé, gave a written report, much of which has been
described, as well as giving viva voce evidence. She further noted that
no one who had gone through what Pizarro had could do so without being emotionally
touched. She also wrote that if RCMP management had written an apology, it
would have assisted Pizarro in overcoming the devastating effects of the
investigation on his career.
[31]
Dr.
Aubé concluded her report in much the same way as the learned provincial court
judge had, stating first that Pizarro’s conduct was out of character, expressing
a hope for leniency and expressing “that there is a direct causal link between
any misbehaviour and the stress that he went through over the past four years”.
[32]
Dr.
Aubé testified that Pizarro’s misconduct reflected a victim who had “acted
out”. That “acting out” can include “self-punishing” behaviour such as
committing crimes.
C. Board
Decision
[33]
Since
there was an Agreed Statement of Facts as to the attempted fraud, the
allegation of disgraceful conduct had been established. The real issue was the
appropriate sanction.
[34]
The
Board recognized that to properly determine this it had to establish the range
of appropriate sanction, determine the aggravating and mitigating factors, and select
the appropriate penalty.
[35]
The
Board concluded that the appropriate range of sanction was from forfeiture of
ten days’ pay to dismissal.
[36]
In
considering the mitigating and aggravating factors, the Board held that the
aggravating factors outweighed the mitigating factors. The principal
aggravating factors listed were (a) the loss of the confidence of Pizarro’s
Commanding Officer; (b) the Criminal Code conviction; (c) that ICBC
investigates fraud in partnership with the RCMP; (d) the ICBC employee felt
betrayed by Pizarro; (e) the attempted fraud was a set of deliberate steps; and
(f) past disciplinary problems. This last item was given little importance.
[37]
On
the issue of the causal relationship between Pizarro’s emotional state and his
actions, the Board rejected this thesis. The Board’s rationale was as follows:
- the
anti-corruption investigation had ended two years prior and Pizarro had been
transferred and was reported to be doing well;
- the
steps taken to commit the fraud were spread over several months;
- Pizarro’s
acts were a deliberate choice and not an “acting out” as described by Dr. Aubé;
and
- there
was no evidence that Pizarro could not distinguish right from wrong.
[38]
In
rejecting Dr. Aubé’s evidence, the Board said:
Third, Dr. Aubé’s opinion about the
causal link between the conduct of the member and his emotional state of mind
was formed at the time of her testimony as this is when she learned about the
allegation against Constable Pizarro. Therefore we gave little weight to her evidence
on this causal link.
[39]
The
Board does refer to a letter of July 17, 2003, at which time Dr. Aubé expressed
the view that Pizarro had enough stability to work as a constable or as a Sky
Marshall. That letter was written approximately two years before her opinion in
respect of the Board hearing.
[40]
The
Board concluded that the appropriate sanction was to require Pizarro to resign
within fourteen (14) days and, in default, to be dismissed from the Force.
[41]
Pizarro
then appealed that Board decision to the Commissioner via the RCMP External
Review Committee. The Committee recommended to the Commissioner that he deny
the appeal. The reasons for that recommendation were largely adopted by the
Commissioner and therefore need not be repeated. The most germane conclusion
was that the Board erred in its grounds for giving no weight to Dr. Aubé’s
evidence but that such evidence would not be accepted nor would it make any
difference in the result.
D. Commissioner’s
Decision
[42]
On
February 27, 2009, the Acting Commissioner dismissed Pizarro’s appeal and
confirmed the Board’s decision and sanction. It is unnecessary to set out all
the facts relied upon; these are detailed above in the Background and in the
Board’s decision.
[43]
Pizarro
had submitted “new evidence” to the Commission on appeal. The Commissioner
allowed the “new evidence” in, although he found that the bulk of the evidence
did not meet the “fresh evidence” criteria.
[44]
The
Commissioner did concede that one piece of new evidence was indeed “new” since
it was not available at the time of the hearing. That evidence was contained in
Pizarro’s affidavit which stated that on July 31, 2007, the Veteran Affairs
Office recognized that he suffered from work-related psychological injury as a
direct result of his duties with the RCMP, specifically the anti-corruption
investigation and the threats he received.
[45]
The
Commissioner concluded that the Veterans Affairs’ finding had no bearing on
Pizarro’s case because the process and objectives of Veterans Affairs are
distinct from the RCMP disciplinary process.
[46]
The
Commissioner adopted a standard of review analysis in his review of the Board’s
decision which was akin to a court’s analysis of that standard in respect of
judicial review. In so doing, the Commissioner relied upon Justice de
Montigny’s decision in Kinsey v. Canada (Attorney
General),
2007 FC 543. That decision has relevance to this matter for different reasons
than that cited by the Commissioner.
[47]
As
the parties did not raise the issue of the standard of review adopted by the
Commissioner, the Court will only say that a review by the Commissioner is not
a judicial review and care must be exercised in the Commissioner not abdicating
responsibility while recognizing that some functions of a board put the Board
in a better position to draw certain conclusions – credibility being a possible
example.
III. ANALYSIS
A. Standard
of Review
[48]
Whether
the Commissioner came to an appropriate decision as to the sanction to be
imposed – which is the core decision – is subject to a standard of reasonableness.
Previous decisions have recognized the greater expertise the Commissioner would
have in this regard coupled with the privative clauses, the largely fact-driven
nature of the proceeding and the highly discretionary nature of the decision (see
Kinsley, above, and Dunsmuir v. New Brunswick, 2008 SCC 9).
The standard with respect to core jurisdictional matters and procedural
fairness is correctness (see Gill v. Canada (Attorney
General),
2007 FCA 305).
[49]
As
the Commissioner adopted a reasonableness standard in his review of the Board’s
decision, the Court would be considering “the reasonableness of the
reasonableness” finding – a cumbersome and unhelpful framework. However, in
this case, the critical error commences at the Board and is repeated and
enhanced by the Commissioner himself. That error is the treatment of the expert
evidence of Dr. Aubé.
B. Aubé
Evidence – Causal Connection to Employer
[50]
To
reiterate, the Board said that it gave little weight to Dr. Aubé’s opinion
about the causal link between Pizarro’s conduct and his emotional state of mind
because her opinion was formed at the time of her testimony, which was when she
learned about the allegations against Pizarro. Both the ERC and the
Commissioner acknowledged that this finding of fact was wrong but both, for
slightly different reasons, went on to hold that the error did not affect the
outcome of the case.
[51]
The
Commissioner’s conclusion is surprising in view of the fact that he had adopted
a deference standard in respect of the Board. One area where deference may be
warranted is credibility findings, yet the Commissioner was prepared to excuse
the error by substituting his own reasons why the evidence was not credible.
Both his act of substitution of opinion and the Commissioner’s own opinion are
in error.
[52]
Dr.
Aubé’s evidence was an absolutely essential element of Pizarro’s case. She was
highly qualified and sufficiently proficient to work with the RCMP for 18 years
and to the extent that she must have been generally credible to the Force. Her
evidence not only went to Pizarro’s state of mind but it dealt with how that
state would manifest itself by “acting out”. Importantly, Dr. Aubé’s opinion
pointed to some element of responsibility within RCMP management.
[53]
In
the usual course, where there is an error of the magnitude of the Board’s, the
Commissioner should have sent it back to a new board. As recognized in Mobil
Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1
S.C.R. 202, relied on by the Respondent, it is only in the exceptional cases
that relief, at least in the form of a re-hearing, would not flow from an error
in fairness. This case and this error are not one of those exceptions. On this
point alone, this judicial review should be granted.
[54]
There
is nothing inevitable about the result if the matter had been sent back. Dr.
Aubé’s opinion is consistent with Mr. Fournier’s. It is also consistent with
the comments of the learned provincial court judge on the issue of the responsibility
of RCMP management. Her opinion that Pizarro suffered emotional disability due
to circumstances at his employment is also consistent with the findings of the
Department of Veterans Affairs.
[55]
The
Commissioner compounded this error in not constituting a new hearing board in
the face of a critical error by reaching an unreasonable conclusion in
substitution of the Board’s finding.
[56]
It
is well settled law that, absent some specific dictate to the contrary, a
decision maker is not compelled to accept the conclusions of an expert where there
is no contradictory evidence. However, when a decision maker does so, there
must be good reasons, generally outside the specific area of expertise, to do
so.
[57]
The
Commissioner accepted the ERC’s conclusion that despite the Board’s error with
respect to the basis of the adverse credibility finding, the experts’ evidence
could be disregarded for the following reasons:
(a) Pizarro’s
misconduct occurred in steps over several months;
(b) Pizarro’s
actions were deliberate and planned, reflecting a criminal mind;
(c) Pizarro
understood the consequences of his actions;
(d) the
anti-corruption investigation ended nearly two years before the misconduct;
(e) Pizarro
generally did well at work in 2003 despite his residual condition;
(f) Pizarro’s
condition did not stop him from going to school at the time of the misconduct;
(g) Pizarro
was recommended (by Dr. Aubé) for Air Marshall duties around the time of the
misconduct;
(h) there
was no sign of impairment or incoherence when Pizarro first contacted the ICBC
claims adjuster; and
(i) Pizarro’s
written statement about the crash revealed an organized, coherent mind.
[58]
The
difficulty with the Board and Commissioner relying on these items to discount
expert evidence contrary to their conclusion of Pizarro’s misconduct is that
these matters either engage psychological expertise which neither of them had or
involve matters which ought to, in fairness, have been put to the experts
before relying on them to discount the expert.
[59]
The
conclusions with respect to deliberations over time assume that a person in
Pizarro’s psychological condition would only act spontaneously. There was no
evidence on this point – a matter which requires expert evidence. The
conclusion that these actions by Pizarro show a criminal mind is contrary to
all the expert and learned (provincial court judge’s) opinions and no
foundation for this conclusion was advanced.
[60]
In
respect of Pizarro’s understanding of his actions, the Board adopted a test –
whether Pizarro could distinguish between right and wrong – similar to that for
proof of insanity. There is no suggestion that this is an appropriate test or
that it was supported by any expert evidence as to mental capacity and the
nature of “acting out”.
[61]
With
respect to the other factors relied upon by the Board and the Commissioner,
these were never put to the experts, particularly Dr. Aubé, to test whether
these matters were inconsistent with a person suffering from Pizarro’s
condition. Matters such as ability to attend school or job performance or his
manner of dealing with ICBC are properly the purview of experts. The
Commissioner’s particular concern about the inconsistency between alleged
cognitive impairment and Dr. Aubé’s recommendation to serve as an Air Marshall
were never put to the witness.
[62]
The
Commissioner used the Air Marshall recommendation as both evidence of Pizarro’s
state of mind and fitness for duty and to attack Dr. Aubé’s credibility. The
Commissioner’s position is itself inconsistent having concluded that the Board
erred in dismissing Dr. Aubé’s evidence, and the Commissioner justifies that
rejection on the Board’s finding as to a significant causal link. Importantly,
neither the Board nor the Commissioner ever gave the expert the opportunity to
explain her findings before each of them embarked on their own rejection and
substitution of the expert opinion.
[63]
A
decision maker does not necessarily have to confront an expert with every
concern he or she may have but the failure to elicit an answer may undermine
the reasonableness of the decision maker’s adverse conclusions. Such is the
case here where the Commissioner reached conclusions which may have been
intuitive to him but for which there was no evidentiary expert basis. The
failure to put these matters to the expert to impugn the expert’s evidence was
unreasonable and unfair in these circumstances.
[64]
The
Commissioner’s decision, therefore, was unreasonable and the process in which
he engaged was contrary to the principles of fairness.
[65]
The
Court is concerned that the Commissioner and the Board went out of their way to
undermine the causal relationship with work conditions and ignore the
responsibility that RCMP management may bear for Pizarro’s conduct. Not only
was there expert evidence to that effect, further, there was no expert evidence
to the contrary and lastly, but importantly, there was confirmatory opinion in
the learned provincial court judge’s decision – a matter which was before both
the Board and the Commissioner.
[66]
In
this regard, Pizarro supplied an affidavit of new evidence. He specifically
raised the finding by Veterans Affairs of psychological injury as a direct
result of his duties with the RCMP, specifically the anti-corruption
investigation and threats he received. The Commissioner dismissed this evidence
because the process and objectives of Veterans Affairs are distinct from the
RCMP disciplinary process. The relevance of the Veterans Affairs’ decision is
clearly obvious – that Pizarro suffered a work-related injury. The
Commissioner’s dismissal of this decision as irrelevant is perverse as it
clearly went to one of the key elements of the cause of Pizarro’s misconduct.
[67]
It
is noteworthy that in citing this “new” evidence, the Commissioner omits from
his recitation of that evidence the concluding words describing the threats
“that were never dealt with by my superiors”.
[68]
The
Commissioner’s failure to address RCMP management’s responsibility – a failure
also by the Board and the ERC – raises concerns about reasonable apprehension
of bias. The treatment of Pizarro’s psychological conditions raises the spectre
of how the RCMP would have treated a member who had suffered a physical
job-related injury and whether the Commissioner would have been prepared to
draw conclusions about physical abilities and consequences in the absence of
expert evidence.
C. Commanding
Officer’s Confidence
[69]
Pizarro
raised as one of his grounds of judicial review the reliance placed, as an
aggravating factor, on the finding that Pizarro has lost the Commanding
Officer’s confidence.
[70]
Although
this factor is listed first in the list of aggravating factors, I cannot
conclude that it was the primary or most important factor. The fact that
it was not discounted, as was past disciplinary action, does confirm that it
was one important factor.
[71]
There
was no evidence led as to this “loss of confidence”, it was simply the argument
of the AOR. Evidence of an aggravating factor could not be simply proceeding
with the charge of disgraceful conduct because it would be a “given” not a
factor.
[72]
The
difficulty for Pizarro is that he did not specifically raise this issue before
the Commissioner. The matter is further complicated by the fact that the
judgment of Justice de Montigny in Kinsey, above, was before the
Commissioner but on the point of the standard of review not on the issue of
fairness raised by unproven allegations of loss of confidence.
[73]
In
Kinsey, above, Justice de Montigny outlined the unfairness of a finding
of “loss of confidence” where the member is not given an opportunity to address
the facts behind the alleged “loss of confidence”.
[74]
In
the present case, the prejudice to Pizarro is clear. Firstly, there was no
evidence of loss of confidence. Secondly, Pizarro was denied any opportunity to
confront the basis for such loss. Pizarro was denied any chance to test how his
conduct in his situation would cause such loss and yet other members of the
RCMP who may have committed crimes of physical violence would still be allowed
to remain with the Force.
[75]
The
Court recognizes that there are certain distinctions between this situation and
Kinsey as advanced by the Respondent’s counsel. However, those
distinguishing features do not undermine the principles engaged in the
Kinsey decision. I concur with Justice de Montigny that the inability to
confront the claim of “loss of confidence” is unfair and the decision should be
quashed.
[76]
Having
concluded that there are other grounds on which the Commissioner’s decision
should be quashed, it is not strictly necessary for me to find on this “loss of
confidence” issue or on whether it can form a ground of review despite not
having been raised.
[77]
However,
were it necessary, I would do so on the basis that a finding made without
evidence is a jurisdictional error and the decision is a nullity (see Shubenacadie
Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 and Douglas
Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245). The issue is the
absence of evidence not the sufficiency of evidence. The AOR put in no evidence
to substantiate the claim of “loss of confidence”.
[78]
I
need not deal with Oberlander v. Canada (Attorney
General),
2009 FCA 330, which is a case that arises in a particular and unique context.
IV. CONCLUSION
[79]
The
Court is concerned that this case involves the senior management of the RCMP
adjudicating on the conduct of its senior management. There is no way
procedurally to avoid this issue. However, there is a new Commissioner and a
direction to him to constitute a new Adjudication Board to conduct the
proceeding de novo should offer some assurance of a fairer process.
[80]
Therefore,
this judicial review will be granted. The Commissioner’s decision will be
quashed as well that of the ERC and the Board. The Commissioner is directed to
reasonably expeditiously constitute a new Adjudication Board to determine this
matter of the sanctions for disgraceful conduct charges against Pizarro. The
Applicant shall have his costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted. The Commissioner’s decision is
quashed as well that of the ERC and the Board. The Commissioner is directed to
reasonably expeditiously constitute a new Adjudication Board to determine this
matter of the sanction to be imposed in respect of the disgraceful conduct
charges against the Applicant. The Applicant is to have his costs in this
judicial review.
“Michael
L. Phelan”
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