Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311

Supreme Court of Canada

Nicholson v. Haldimand-Norfolk Regional Police Commissioners, [1979] 1 S.C.R. 311

Date: 1978-10-03

Arthur Gwyn Nicholson Appellant;

and

Haldimand-Norfolk Regional Board of Commissioners of Police Respondent;

and

Attorney-General for the Province of Ontario Intervenor.

1978: February 22; 1978: October 3.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Administrative law—Natural justice—Board of Commissioners of Police—Dismissal of police officer without a hearing—Probationary status of police officer—Regulations providing for imposition of penalties only after a hearing except in the case of probationary officers—Police Regulations (Ont.), R.R.O. 1970, Reg. 680, s. 27(b)—The Regional Municipality of Haldimand-Norfolk Act, 1973 (Ont.), c. 96, s. 75.

Appellant was engaged as a constable, third class, by the Town of Caledonia under an oral contract providing for a twelve month probationary period. Eleven months later he was promoted to constable second class. The municipality was (after the expiry of the twelve month period) incorporated into the Regional Municipality of Haldimand-Norfolk. The respondent Board thereafter, but within eighteen months of his initial appointment purported to dispense with his services. Section 27 of Regulation 680 made under The Police Act provides inter alia that no police officer is subject to any penalty (under that Part of the Regulations) except after a hearing and final disposition of a charge on appeal or after the time for appeal has expired subject to certain exceptions, one of which is the authority of a board or council “to dispense with the services of any constable within eighteen months of his appointment to the force”. The Divisional Court granted an application to quash the decision of the Board but the Court of Appeal reversed on the basis that s. 21(b) of the Regulations had the effect of preserving the common law right of the Board to dispense with the services of any probationary constable at their pleasure (and consequently without a hearing) and took the view that the terms of s. 27 (b) did not admit of contractual variation making the fact

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that appellant had been originally hired for a twelve month probationary period irrelevant.

Held (Martland, Pigeon, Beetz and Pratte JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Ritchie, Spence, Dickson and Estey JJ.: The Police Act and regulations thereunder form a code for police constables with an array of powers some of which are discretionary. The respondent Board as a body created by statute, has only such powers as are given to it by the statute or regulations. In effect a constable is the holder of a public office exercising, so far as his police duties are concerned, an original authority confirmed by s. 55 of The Police Act and is a member of a civilian force. His assimilation to a soldier as in the Perpetual Trustee Co. case, [1955] A.C. 457, is for limited purposes only and cannot apply for other purposes such as liability or otherwise to peremptory discharge. In Ridge v. Baldwin, [1964] A.C. 40, Lord Reid set out a three-fold classification of dismissal situations: dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The present case is not one where the constable held office during pleasure, and accordingly fits more closely into Lord Reid’s third class. The appellant should have been told why his services were no longer required and given an opportunity to respond. Thereafter it would have been for the Board to reach its decision and that decision, always premising good faith, would not have been reviewable elsewhere. While the appellant could not claim the procedural protections of a constable with more than eighteen month’s service, he should have been treated ‘fairly’ not arbitrarily.

Per Martland, Pigeon, Beetz and Pratte JJ. dissenting;. The relevant provision is s. 27(b) which clearly recognizes the existence of an authority in the Board to terminate the employment of a police constable at any time within a period of eighteen months commencing from the date of his appointment. Both the Divisional Court and the Court of Appeal correctly regarded the eighteen month period as a probationary one. It is not without significance that whereas paras. (a), (c) and (e) refer to “member of the police force”, para. (b) does not. The respondent had therefore the right to dispense with the appellant’s services without an investigation of his conduct. The purpose of the probationary period was to enable the Board to decide whether it wished to continue the appellant’s services. The decision of the

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Board was purely administrative and it was under no duty to explain why his services were no longer required or to give him an opportunity to be heard. It could have taken that course as a matter of courtesy but its failure to do so was not a breach of any legal duty to him.

[Re a Reference under the Constitutional Questions Act, [1957] O.R. 28; Re Cardinal and the Board of Commissioners of Police of Cornwall (1974), 2 O.R. (2d) 183; Ridge v. Baldwin, [1964] A.C. 40; Attorney General for New South Wales v. Perpetual Trustee Co. (Ld.), [1955] A.C. 457; L’Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140; Re Lowe v. Darling & Son, [1906] 2 K.B. 772; Colguhoun v. Brooks (1888), 21 Q.B.D. 52; Malloch v. Aberdeen Corporation, [1971] 2 All E.R. 1278; Bates v. Lord Hailsham, [1972] 1 W.L.R. 1373; Pearlberg v. Varty, [1972] 1 W.L.R. 534; Furnell v. Whangarei High Schools Board, [1973] A.C. 660; Russell v. Duke of Norfolk, [1949] 1 All E.R. 109; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 13 referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal from a judgment of the Divisional Court[2] granting an application to quash a decision of the Board of Commissioners of Police in the matter of its dismissal of the appellant, A.G. Nicholson. Appeal allowed, order of the Divisional Court restored, Martland, Pigeon, Beetz and Pratte JJ. dissenting.

Ian Scott, Q.C., for the appellant.

P.D. Amey, for the respondent.

Dennis Brown, for the intervenant the Attorney-General of Ontario.

The judgment of Laskin C.J. and Ritchie, Spence, Dickson and Estey JJ. was delivered by

THE CHIEF JUSTICE—The issue in this appeal arises out of a letter of June 10, 1974 written to the appellant by the Deputy Chief of Police of the Regional Municipality of Haldimand‑Norfolk advising him that “the Board of Commissioners of Police have approved the termination of your services effective June 4, 1974”. The appellant, then a second class constable of the Regional Municipali-

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ty, had been in its service since April 1, 1974 but he carried over his service as a police constable with the Town of Caledonia, which had been amalgamated with the Town of Haldimand on that date as an area municipality within the Regional Municipality of Haldimand-Norfolk.

The appellant was engaged as a constable, third class, by the Town of Caledonia on March 1, 1973 under an oral hiring of which a term was that he would serve a probationary period of twelve months. On March 1, 1974, he was promoted to constable second class, and pursuant to The Regional Municipality of Haldimand-Norfolk Amendment Act, 1973 (Ont), c. 155, s. 75, he became a member of the Regional Police Force, carrying over his previous service to the same extent as if appointed by the Haldimand-Norfolk Police Board.

Subject to some observations to be made later in these reasons on the question whether the appellant knew why his services had been terminated, the formal record indicates that he was not told why he was dismissed nor was he given any notice, prior to dismissal, of the likelihood thereof or of the reason therefor, nor any opportunity to make representations before his services were terminated. Counsel for the appellant does not assert any right on his behalf to an adjudication of the existence of proper cause but rests primarily on the contention that, however fragile was the appellant’s security of position, he was in law entitled to be treated fairly and there was a corresponding duty on the respondent to act fairly toward the appellant. This, it is said, the respondent did not do.

The fragility of the appellant’s tenure, the allegation that in law he had no security of position and was dismissable at pleasure, is at the foundation of the respondent’s case; and from this base it was contended that there was no obligation to give any notice or to assign any reason or to hear any representations from the appellant before dispensing with his services.

It is common ground that the relevant legislation within which the respective contentions of the parties are to be assessed is The Police Act, R.S.O.

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1970, c. 351 and, particularly, s. 27(b) of Regulation 680 made pursuant thereto. Section 27 of the Regulation is as follows:

27. No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein affects the authority of a board or council,

(a) subject to the consent of the Commission, to dispense with the services of any member of a police force for the purpose of reducing the size of or abolishing the police force, where the reduction or abolition is not in contravention of the Act;

(b) to dispense with the services of any constable within eighteen months of his becoming a constable;

(c) to make rules or regulations for the retirement of members of the police force who are entitled to a pension under a pension plan established for the members of the force, under which the municipality contributes an amount not less than 5 per cent of the amount of the salaries of the members participating in the plan, and to retire the members in accordance with those rules or regulations;

(d) to act in accordance with a report or recommendation of the Commission made under section 28; or

(e) to discharge or place on retirement, if he is entitled thereto, any member of the force who, on the evidence of two legally qualified medical practitioners is, due to mental or physical disability, incapable of performing his duties in a manner fitted to satisfy the requirements of his position but any decision of the board or council made pursuant to this clause may be appealed to the Commission.

Following his dismissal, the appellant instituted proceedings to quash the decision of June 4, 1974 made by Haldimand-Norfolk Board of Police Commissioners. They came before the Ontario Divisional Court under The Judicial Review Procedure Act, 1971 (Ont.), c. 48. In giving the appellant the relief that he sought, Hughes J., who spoke for the Court, took three points to which I wish to refer. He cleared out any issue arising from the transfer of service and status from Caledonia to Haldimand-Norfolk by declaring that whatever benefits of employment may have been conferred upon the appellant by Caledonia, his status as a police officer was neither impaired nor

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enhanced thereby. I agree with this assessment. Second, he concluded that a collective agreement entered into between the Haldimand-Norfolk Board of Police Commissioners and the Regional Police had no bearing on the case before the Divisional Court. That was common ground at the hearing in this Court and nothing more need be said about it.

This left for consideration a third point, central there as here, namely, whether, in the case of a constable who has served less than the eighteen months specified in s. 27(b), the Board may dismiss peremptorily without obligation to give previous notice or assign a reason or give any opportunity to contest the proposed dismissal. Hughes J., in the course of his reasons, put the point in terms of whether a hearing was required as well as notice of the complaint against a constable. Arnup J.A., speaking for the Court of Appeal, which reversed the Divisional Court, took a like view of the issue, putting it as follows at the very front of his reasons:

Can the services of a police constable be dispensed with within eighteen months of his becoming a constable, without observance by the authority discharging him of the requirements of natural justice, including a hearing?

Counsel for the appellant did not, in his main submission here, put his case that high, as I have already noted.

In his reasons for the Divisional Court, Hughes J. founded his conclusion in favour of the appellant on an application of the judgment of the Ontario Court of Appeal, delivered by Laidlaw J.A., in Re a Reference under the Constitutional Questions Act[3], and he drew support as well from the judgment of the Divisional Court in Re Cardinal and the Board of Commissioners of Police of Cornwall[4]. At bottom, however, Hughes J. was of the view that Ridge v. Baldwin[5], was in point in obliterating the distinction between those who perform ministerial acts and those who perform judicial acts, and in proclaiming a duty to act fairly

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applicable to the former as to the latter. He posed and answered the issue in the following passage of his reasons:

...Can it be that the disclaimer in s. 27(b) of Reg. 680, which otherwise enshrines the principles of natural justice as they affect the dismissal or suspension of a police officer, confers an immunity from the application of those principles on members of a board when dealing with a police officer, who has taken the oath of office and upon whom has been conferred the province-wide powers prescribed in the Police Act, but who has not yet completed eighteen months of service? I do not believe that it can. It may relieve them from complying with the regulations and preclude the officer’s appeal to the Ontario Police Commission, but it cannot relieve them of the duty to act judicially with all which that implies.

He concluded his reasons by stating that a duty to act fairly rested squarely upon the Board of Police Commissioners of Haldimand-Norfolk, adding this:

Their deliberations may be untrammelled by regulations made under the Police Act, but this Court should not allow them to proceed as if the principles of natural justice did not exist.

Hughes J. did not spell out the elements of the duty to act fairly but, in the course of his reasons, and adverting to s. 27(b), he stated that “what this Court has to decide is whether s. 27(b) by not specifically requiring a hearing confers upon the Haldimand-Norfolk Board power to dismiss a constable, not having served for eighteen months, without one”. In a later part of his reasons, he said the crucial question was whether the dismissal could be made without any notice of the complaint against the appellant and without a hearing. It can be taken from his reasons that he was asserting a duty of compliance with the rules of natural justice in their traditional sense of notice and hearing, with an opportunity to make representations, and with reviewability of the decision as much as a less onerous duty of acting fairly.

The holding of the Divisional Court depended on regarding a police constable as holder of an office, and not as being in an ordinary master-serv-

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ant relationship qua the Board and the Regional Municipality. A master-servant relationship would not, per se, give rise to any legal requirement of observance of any of the principles of natural justice. The contention of the respondent Board was, however, that the historical position of a constable as holding office during pleasure and, consequently, as subject to dismissal without cause assigned, had not been altered by s. 27(b) in the case of a constable who had served less than eighteen months. (An earlier regulation had fixed the period at twelve months). Although Lord Reid in Ridge v. Baldwin, supra, had examined the position of one holding office at pleasure and had concluded that the power of dismissal was exercisable against such a person without obligation to assign a reason, Hughes J. was of the opinion that, having regard to the judgment in Re a Reference under the Constitutional Questions Act, supra, the position of a constable under s. 27(b) was no different from that of the constable in Ridge v. Baldwin under the relevant statutory provision in that case, which gave power to dismiss for negligence in the discharge of duty or for being otherwise unfit for duty. Discharge could not, therefore, be peremptory.

The Ontario Court of Appeal took a different view. Arnup J.A., speaking for that Court, considered that the eighteen month period fixed by s. 27(b) was a probationary period, a position reinforced by the use of the words “dispense with the services of any constable”, and he contrasted the reference to “dismissal” in ss. 20(2) and 23(7) of Regulation 680 and the reference to “discharge” in s. 27(e), all pointing to disciplinary action. I take no issue with this appraisal, nor do I disagree with the the conclusion of Arnup J.A. that the terms of s. 27(b) admit of no contractual variation. Whatever might be said of a statutory provision which simply provided for engagements at pleasure, the express reference to an eighteen month period in a regulation prescribed by a statute such as The Police Act excludes any inconsistent contract.

For Arnup J.A., the consequence of the appellant being short of eighteen months’ service when he was separated from his position was that (to use

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his words) “the board may act as it was entitled to act at common law, i.e. without the necessity of prior notice of allegations or of a hearing and, a fortiori, with no right of appeal by the constable”. He also relied on the expressio unius rule of construction by noting that “the Legislature has expressly required notice and hearing for certain purposes and has by necessary implication excluded them for other purposes”. There is no recognition in his reasons, as there was in those of Hughes J., that there may be a common law duty to act fairly falling short of a requirement of a hearing or, indeed, falling short of a duty to act judicially. Counsel for the appellant asserted that there is an emerging line of authority on this distinction which this Court should approve, and that although it may be regarded as an aspect of natural justice it has a procedural content of its own. It does not, however, rise to the level of what is required to satisfy natural justice where judicial or quasi-judicial powers are being exercised. I shall come to this line of authority later in these reasons.

Considerable emphasis was placed by Arnup J.A. on the position of a constable at common law as an office holder at pleasure who could claim no procedural protection against peremptory removal from office. We are not concerned in this case with any involvement of the Crown, with the holding of an office under the Crown, assuming that this would make any difference today. It was, however, contended in this Court, as in the Courts below, that the words in s. 27, “but nothing herein affects the authority of a board or council”, point to a preservation of some pre-existing authority as contrasted with a grant of power; and hence, it was not only proper but necessary to examine the position of a constable at common law. I can see some value in this as background research, but the scheme of The Police Act and the involvement of statutory agencies, whether Boards of Commissioners of Police or Municipal Councils, has created an entirely different frame of reference, and what is preserved of the common law is merely the fact that a constable may still be considered as the holder of an office and not simply an employee of

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a Board or of a Municipality which, for many purposes, he certainly is.

In my opinion, nothing turns on pre-existing authority but the fact is, rather, that The Police Act and regulations thereunder form a code for police constables with an array of powers, some of which, as in the case of s. 27(b), are discretionary. There are two observations I would make in this connection. First, the respondent Board is not the Crown and, being simply a body created by statute, it has only such powers as are given by statute or regulations thereunder. I cannot, therefore, accept the proposition, referable to the words in the opening portion of s. 27(b) (“but nothing herein affects the authority of a board.”), that they do not confer power but leave the respondent Board with such powers as it already had. I know not where they could come from, save from the statute or regulations governing the Board. It follows that any attempt to measure the issue in this case by resort to the common law position of a constable is inapt.

The second observation is a reinforcement of the first. The assimilation by the Ontario Court of Appeal of the position of a constable under s. 27(b) to that of a constable at common law holding office at pleasure involved importing the term “at pleasure”, with its connotation of peremptory power of dismissal without need to give notice or reason before or after, into s. 27(b). The words “at pleasure” which at one time governed the appointment of all members of a police force in a municipality having a Board (see The Police Act, R.S.O. 1950, c. 279, s. 13) were removed by 1951 (Ont.), c. 66, s. 1 and, thereafter, regulations were promulgated along the lines of those still in force and applicable here. I wish to emphasize here that the frame of the Act and regulations thereunder has left the words “at pleasure” behind as relics of Crown law which no longer governs the relations of police and Boards or Municipal Councils.

I agree with Arnup J.A. that Re a Reference under the Constitutional Questions Act, supra, is

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of no assistance in the present case because the question under consideration (“Has a Municipal Council power to dismiss a chief constable or other police officer appointed by the Council without a hearing as provided by the Police Act and the regulations made thereunder?”) was answered in terms of the position of a chief constable or other police officer who was outside of what is now s. 27(b), and the answer was in the negative. Again, the Cardinal case is, at best, of marginal relevance since it was concerned with s. 27(e), but one cannot discount completely the holding that a hearing was required prior to discharge on the grounds specified in s. 27(e), even though there was express provision for an appeal to the Ontario Police Commission.

The position at which I have arrived to this point is this: a constable is “the holder of a police office” (to use the description of the Privy Council in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ld.)[6], at p. 489), exercising, so far as his police duties are concerned, an original authority confirmed by s. 55 of The Police Act and by the oath of office prescribed by s. 64 of the Act (wherein reference is made to “the duties of his office”, among which are duties specified in the Criminal Code). He is a member of a civilian force, and I take his assimilation to a soldier, as stated by the Privy Council in the Perpetual Trustee Co. case, supra, to be an assimilation related only to whether an action per quod lies against a tortfeasor at common law for the loss of his services, and not to assimilation for other purposes, such as liability to peremptory discharge, if that be the case with a soldier.

The effect of the judgment below is that a constable who has served eighteen months or more is afforded protection against arbitrary discipline or discharge through the requirement of notice and hearing and appellate review, but there is no protection at all, no halfway house, between the observance of natural justice aforesaid and arbitrary removal in the case of a constable who has held office for less than eighteen months. In so far as the Ontario Court of Appeal based its conclusion on the expressio unius rule of construction, it

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has carried the maxim much too far. This Court examined its application in L’Alliance des professeurs catholiques de Montreal v. Labour Relations Board of Quebec[7], and rejected an argument for its application to deny notice and hearing in that case. Rinfret C.J.C. referred, inter alia, to the judgment of Farwell L.J. in Re Lowe v. Darling & Son[8], at p. 785 where mention is made of Colquhoun v. Brooks[9] and of the statement of Lopes L.J., at p. 65, that “the maxim ought not to be applied when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice”. This statement commends itself to me and I think it relevant to the present case where we are dealing with the holder of a public office, engaged in duties connected with the maintenance of public order and preservation of the peace, important values in any society.

Again, in so far as the judgment of the Ontario Court of Appeal is based on reading the words “at pleasure” (as importing arbitrary power) into s. 27(b), or the term “probationary” (with similar import), it results in reducing the status of the office of police constable to that involved in a master-servant relationship merely because there has been less than eighteen months’ service in the office, and I do not regard this as either an obvious or a necessary gloss on s. 27(b). The view so taken by the Ontario Court of Appeal, and supported strongly in this Court by counsel for the respondent, relied heavily on the three-fold classification of dismissal situations formulated by Lord Reid in Ridge v. Baldwin, supra, at p. 65. Since the present case is not one where the constable holds office at pleasure, he fits more closely into Lord Reid’s third class of dismissal from an office where there must be cause for dismissing him, rather than into his second class of dismissal from an office held at pleasure.

I would observe here that the old common law rule, deriving much of its force from Crown law, that a person engaged as an office holder at pleas-

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ure may be put out without reason or prior notice ought itself to be re-examined. It has an anachronistic flavour in the light of collective agreements, which are pervasive in both public and private employment, and which offer broad protection against arbitrary dismissal in the case of employees who cannot claim the status of office holders. As de Smith has pointed out in his book Judicial Review of Administrative Action (3rd ed. 1973), at p. 200, “public policy does not dictate that tenure of an office held at pleasure should be terminable without allowing its occupant any right to make prior representations on his own behalf; indeed, the unreviewability of the substantive grounds for removal indicates that procedural protection may be all the more necessary”. The judgment of the House of Lords in Malloch v. Aberdeen Corporation[10], is a useful reference in this connection. In that case the statutory provision for appointment of teachers at pleasure was qualified by a restriction against dismissal without due notice and due deliberation by the School Board. Observations were there made about the holding of an office at pleasure, and I refer particularly to what Lord Wilberforce said, at p. 1295, where he commented as follows on Lord Reid’s statement in Ridge v. Baldwin, supra, that an officer holding during pleasure has no right to be heard before being dismissed:

...As a general principle, I respectfully agree; and I think it important not to weaken a principle which, for reasons of public policy, applies, at least as a starting point, to so wide a range of the public service. The difficulty arises when, as here, there are other incidents of the employment laid down by statute, or regulations, or code of employment or agreement. The rigour of the principle is often, in modern practice, mitigated for it has come to be perceived that the very possibility of dismissal without reason being given—action which may vitally affect a man’s career or his pension—makes it all the more important for him, in suitable circumstances, to be able to state his case and, if denied the right to do so, to be able to have his dismissal declared void. So, while the courts will necessarily respect the right, for good reasons of public policy, to dismiss without assigned reasons, this should not, in my opinion, prevent them from examining the framework and context of the

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employment to see whether elementary rights are conferred on him expressly or by necessary implication, and how far these extend. The present case is, in my opinion, just such a case where there are strong indications that a right to be heard, in appropriate circumstances, should not be denied.

This case does not, however, fall to be determined on the ground that the appellant was dismissable at pleasure. The dropping of the phrase “at pleasure” from the statutory provision for engagement of constables, and its replacement by a regime under which regulations fix the temporal point at which full procedural protection is given to a constable, indicates to me a turning away from the old common law rule even in cases where the full period of time has not fully run. The status enjoyed by the office holder must now be taken to have more substance than to be dependent upon the whim of the Board up to the point where it has been enjoyed for eighteen months. Moreover, I find it incongruous in the present case to insist on treating the appellant as engaged at pleasure when he was first taken on as a third class constable (and not, as was possible, as a fourth class one) and when he was promoted to second class constable after serving twelve months.

In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as a common law principle what Megarry J. accepted in Bates v. Lord Hailsham[11] , at p. 1378, “that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness”.

The emergence of a notion of fairness involving something less than the procedural protection of traditional natural justice has been commented on in de Smith, Judicial Review of Administrative Action, supra, at p. 208, as follows:

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That the donee of a power must “act fairly” is a long-settled principle governing the exercise of discretion, though its meaning is inevitably imprecise. Since 1967 the concept of a duty to act fairly has often been used by judges to denote an implied procedural obligation. In general it means a duty to observe the rudiments of natural justice for a limited purpose in the exercise of functions that are not analytically judicial but administrative. Given the flexibility of natural justice, it is not strictly necessary to use the term “duty to act fairly” at all. But the term has a marginal value because of (i) the frequent re-emergence of the idea that a duty to observe natural justice is not to be imported into the discharge of “administrative” functions and (ii) a tendency to assume that a duty to “act judicially” in accordance with natural justice means a duty to act like a judge in a court of law. It may therefore be less confusing to say that an immigration officer or a company inspector or a magistrate condemning food as unfit for human consumption is obliged to act fairly rather than obliged to act judicially (or to observe natural justice, which means the same thing). However, close analysis of the relevant judgments is apt to generate its own confusion; for sometimes one judge will differentiate a duty to act fairly from a duty to act judicially and another will assimilate them, both judges being in full agreement as to the scope of the procedural duty cast on the competent authority. [Footnotes omitted]

What rightly lies behind this emergence is the realization that the classification of statutory functions as judicial, quasi-judicial or administrative is often very difficult, to say the least; and to endow some with procedural protection while denying others any at all would work injustice when the results of statutory decisions raise the same serious consequences for those adversely affected, regardless of the classification of the function in question: see, generally, Mullan, Fairness: The New Natural Justice (1975), 25 Univ. of Tor. L.J. 281.

The distinction was clearly made by Lord Pearson in Pearlberg v. Varty[12], at p. 547, and “fair-

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ness” was also mentioned in the speeches of Viscount Dilhorne and Lord Salmon. Lord Pearson put the matter in the following terms:

A tribunal to whom judicial or quasi-judicial functions are entrusted is held to be required to apply those principles in performing those functions unless there is a provision to the contrary. But where some person or body is entrusted by Parliament with administrative or executive functions there is no presumption that compliance with the principles of natural justice is required, although, as “Parliament is not to be presumed to act unfairly,” the courts may be able in suitable cases (perhaps always) to imply an obligation to act with fairness. Fairness, however, does not necessarily require a plurality of hearings or representations and counter-representations. If there were too much elaboration of procedural safeguards, nothing could be done simply and quickly and cheaply. Administrative or executive efficiency and economy should not be too readily sacrificed. . .

Pearlberg v. Varty has no affinity with the present case, but rather was a case where, pursuant to certain taxing measures, the revenue proposed to reassess for a back period and sought leave from a commissioner, as required by statute, in order to do so. The taxpayer was informed of the application for leave, and although he had the right to appeal against the reassessments if made, he contended that he should be heard on the application for leave. He failed in all courts. Unlike the situation in the present case, the decision in issue would not be a final determination of his rights.

Not long after, the Privy Council also took up the notion of fairness in a New Zealand appeal, Furnell v. Whangarei High Schools Board[13]. Lord Morris of Borth-Y-Gest, speaking for the majority of three said, at p. 679 that “natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’. Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But as was pointed out by Tucker L.J.

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in Russell v. Duke of Norfolk[14], at p. 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration”. The majority concluded in that case that “the scheme of the procedure gives no scope for action which can properly be described as unfair and there are no grounds for thinking that the sub‑committee acted unfairly” (at p. 682). The two dissenting Judges were of a different view. The importance of the case lies in the respect paid by both the majority and the dissenting Judges to a duty to act fairly.

A more recent illustration of a court considering a duty to act fairly is Selvarajan v. Race Relations Board[15], where the Court of Appeal was satisfied that the Board, and administrative agency with no judicial functions, concerned primarily with conciliation in relation to its duty to envestigate complaints of unlawful discrimination and to form an opinion thereon, had acted fairly in concluding after a review of the evidence that there was no such discrimination. Lord Denning had this to say about the duty to act fairly (at p. 19):

...In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion. Notably the Gaming Board, who have to enquire whether an applicant is fit to run a gaming club (see R v. Gaming Board for Great Britain, ex parte Benaim, [1970] 2 All ER 528), and inspectors under the Companies Acts, who have to investigate the affairs of a company and make a report (see Re Pergamon Press Ltd., [1970] 3 All ER 535), and the tribunal appointed under s. 463 of the Income and Corporation Taxes Act 1970, who have to determine whether there is a prima facie case (see Wiseman v. Borneman, [1971] AC 297). In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report,

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then he should be told the case made against him and be afforded a fair opportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.

The present case is one where the consequences to the appellant are serious indeed in respect of his wish to continue in a public office, and yet the respondent Board has thought it fit and has asserted a legal right to dispense with his services without any indication to him of why he was deemed unsuitable to continue to hold it.

In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. Once it had the appellant’s response, it would be for the Board to decide on what action to take, without its decision being reviewable elsewhere, always premising good faith. Such a course provides fairness to the appellant, and it is fair as well to the Board’s right, as a public authority to decide, once it had the appellant’s response, whether a person in his position should be allowed to continue in office to the point where his right to procedural protection was enlarged. Status in office deserves this minimal protection, however brief the period for which the office is held.

It remains to consider whether the appellant should not be heard to complain of want of fairness because he was aware of the reason for his dismissal. The only evidence in the record that goes to this point is his cross-examination on his affidavit in support of his application for judicial review. Questions were put to him respecting the

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performance of various of his duties, and among them was a reference to a telephone call made by Nicholson to police headquarters in Simcoe, asking for instructions for obtaining and completing an overtime slip. It apparently angered his superior, one Sergeant Burger, that the appellant “was going over his head” in making the call (which Nicholson charged to himself and not to the police department). He was told by Burger that this was disobedience to a direct order (Nicholson said he was unaware of any relevant order) and that he was being suspended indefinitely. The cross-examination shows that Nicholson asked if any charges would be laid and the answer he got was “there won’t be any charges”. All of this happened on May 29, 1974, some six days before the dismissal by the Board. An inspector, whom Nicholson went to see the same day, had been told by Burger of his suspension of Nicholson, and the inspector said he supported what Burger had done and that Nicholson had no future in the department.

The cross-examination also revealed that the inspector invited or offered to let Nicholson resign. Nicholson denied that he was told by the inspector that “subject to the confirmation of the Board, [he was] no longer a policeman”, these words being put to him by counsel for the Board on his cross-examination. When asked what he thought his position was when he left the inspector’s office, Nicholson said this:

I thought that if they felt I was dispensed with, I thought it was illegal. There were no charges, there was no lawful suspension, there was no lawful firing and I was in a quandary. I knew that I was off probation, so I decided to go and see a lawyer, and retain a lawyer.

If the making of the telephone call of which Burger disapproved, (and which he said was in disobedience of a direct order, Nicholson saying he was unaware of any relevant order) was the basis of the proposed dismissal, it would have been simple enough to say so. I can hardly credit that in itself it could be a reason for dismissing a constable who had served for fifteen months. If it was an allegedly culminating event this too could be easily stated, or if there was another ground

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Nicholson could have been told of it prior to dismissal. I do not regard it as giving a reason for dismissal to tell Nicholson that he had no future in the department. Moreover, there is nothing in the record to show that an inspector, the particular inspector, had the power to dismiss a constable with less than eighteen months’ service.

I would allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore the order of the Divisional Court, with costs to the appellant throughout.

The judgment of Martland, Pigeon, Beetz and Pratte JJ. was delivered by

MARTLAND J. (dissenting)—The facts which give rise to this appeal and the course of the litigation up to this point are outlined in the reasons of the Chief Justice. The essential matter is that the respondent terminated the services of the appellant, as a police constable, within eighteen months of his becoming a constable without his having been told why his services were no longer required and without his having had an opportunity to respond.

Under the provisions of The Police Act, R.S.O. 1970, C. 351, the respondent Board had the responsibility for the appointment of the members of the Haldimand-Norfolk Regional Police Force. The members of that force were subject to the government of the Board.

Section 72(1)(a) of that Act empowered the Lieutenant-Governor in Council to make regulations:

for the government of police forces and governing the conduct, duties, suspension and dismissal of members of police forces.

Pursuant to this power regulation 680 was enacted. The key section for the purposes of this appeal is s. 27 (as amended):

27. No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein affects the authority of a board or council.

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(a) subject to the consent of the Commission, to dispense with the services of any member of a police force for the purpose of reducing the size of or abolishing the police force, where the reduction or abolition is not in contravention of the Act;

(b) to dispense with the services of any constable within eighteen months of his becoming a constable;

(c) to make rules or regulations for the retirement of members of the police force who are entitled to a pension plan established for the members of the force, under which the municipality contributes an amount not less than 5 per cent of the amount of the salaries of the members participating in the plan, and to retire the members in accordance with those rules or regulations;

(d) to act in accordance with a report or recommendation of the Commission made under section 28; or

(e) to discharge or place on retirement, if he is entitled thereto, any member of the force who, on the evidence of two legally qualified medical practitioners is, due to mental or physical disability, incapable of performing his duties in a manner fitted to satisfy the requirements of his position but any decision of the board or council made pursuant to this clause may be appealed to the Commission.

The relevant provision in this appeal is s. 27(b). Both the Divisional Court and the Court of Appeal have regarded the eighteen month period as a probationary one, and with this I agree. It is significant that whereas paras, (a), (c) and (e) refer to “member of the police force”, para. (b) does not. During the eighteen month period after appointment a constable is on probation, and only becomes a full member of the force after the expiration of that period.

Commenting on s. 27(b), Arnup J.A. who delivered the reasons of the Court of Appeal, said:

The words “to dispense with the services of” are to be contrasted with “dismissal”, which is one of the penalties that may be imposed when a person, including a chief of police, has been found guilty of a major offence: see ss. 20(2) and 23(7). Clause (a) of s. 27 also uses the words “to dispense with the services of” any member of a police force for the purpose of reducing the size of the force. Such reduction is unrelated to matters of discipline. Finally, clause (e) uses the expression “to discharge or place on retirement”. The words “to dispense with the services of in clause (b) are consistent with the idea of a probationary period; during such a period the

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probationer in effect is liable to be let go without cause assigned. There need be no misconduct involved. The words are in contrast to “dismissal” or “discharge”.

Section 27(b) clearly recognizes the existence of an authority in the Board to terminate the employment of a police constable at any time within a period of eighteen months commencing from the date of his appointment. During that period his employment is at the pleasure of the Board. This being so, the question is whether there is any legal obligation resting on the Board to give to a police constable on probation the opportunity to be heard before dispensing with his services.

The leading English authority on this issue is Ridge v. Baldwin[16], a judgment of the House of Lords. That case involved the dismissal of the chief constable of a borough police force. Under the relevant statute the watch committee was empowered to dismiss a borough constable “whom they think negligent in the discharge of his duty”. The dismissal was made without informing the chief constable of the charges against him and without giving him an opportunity to be heard. It was held that the watch committee was bound to observe the principles of natural justice and that, in view of the failure to do so, the dismissal was a nullity.

It will be noted that this case involved a dismissal from office by the watch committee, whose power to dismiss was limited to dismissal for specified causes. The position of someone who holds an office at the pleasure of an authority, which may dispense with his services without cause, is different. This difference is recognized in the judgment of Lord Reid at p. 65:

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office

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where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of anyone else.

Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell v. Secretary of State for the Colonies [1953] 2 Q.B. 482; [1953] 3 W.L.R. 331; [1953] 2 All E.R. 490). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Stratford-on-Avon Corporation ((1809) 11 East 176), where the corporation dismissed a town clerk who held office durante bene placito. The leading case on this matter appears to be Reg. v. Darlington School Governors ((1844) 6 Q.B. 682) although that decision was doubted by Lord Hatherley L.C. in Dean v. Bennett ((1870) L.R. 6 Ch. 489), and distinguished on narrow grounds in Willis v. Childe ((1851) 13 Beav. 117). I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the court cannot require him to do so, it cannot determine whether it would be fair to hear the officer’s case before taking action. But again that is not this case. In this case the Act of 1882 only permits the watch committee to take action on the grounds of negligence or unfitness. Let me illustrate the difference by supposing that a watch committee who had no complaint against their present chief constable heard of a man with quite outstanding qualifications who would like to be appointed. They might think it in the public interest to make the change, but they would have no right to do it. But there could be no legal objection to dismissal of an officer holding office at pleasure in order to put a better man in his place.

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In Malloch v. Aberdeen Corporation[17], the House of Lords considered a case involving the dismissal of a school teacher by an education authority. He had not been given the opportunity to make written representations to the authority or to be heard by it before the resolution for his dismissal was passed. In that case the majority held that, although his appointment was during the pleasure of the authority, the statutory provisions which required that notice of the motion for dismissal be sent to the teacher not less than three weeks prior to the meeting which would consider his dismissal, and which required the agreement of a majority of the full members of the board coupled with an explanation of the purpose of those provisions in the Act of 1882 which first introduced them “to secure that no certificated teacher... shall be dismissed from office without due notice to the teacher and due deliberation on the part of the School Board”, by implication indicated that the teacher should have the right to be heard.

It should be noted that two of the five judges who heard the appeal dissented. Even accepting the majority view, there is no parallel with the present appeal. In the present case there is no requirement for a fixed notice and no other limitation on the authority to dispense with services. The majority in the Malloch case recognized that, in the absence of the special statutory provisions, at common law there would have been no right to a hearing prior to dismissal.

The case of Furnell v. Whangarei High Schools Board[18], is of no assistance to the appellant. In that case complaints had been made against a high school teacher. The complaints were investigated by a sub-committee appointed under the disciplinary regulations which was to report to the Board. He was suspended by the Board pending the subsequent investigation of the charges to be made by the Board. The teacher was not interviewed by the sub-committee nor did he have an opportunity to make representations to the sub-committee or to the Board prior to his suspension. He sought, inter

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alia, certiorari to quash the decision of the Board. He succeeded at trial but the Board’s appeal to the Court of Appeal was allowed. His appeal to the Privy Council from his judgment was dismissed.

Lord Morris of Borth-Y-Gest, who wrote the majority reasons, said at p. 679:

It has often been pointed out that the conceptions which are indicated when natural justice is invoked or referred to are not comprised within and are not to be confined within certain hard and fast and rigid rules: see the speeches in Wiseman v. Borneman [1971] A.C. 297. Natural justice is but fairness writ large and juridically. It has been described as “fair play in action.” Nor is it a leaven to be associated only with judicial or quasi-judicial occasions. But as was pointed out by Tucker L.J. in Russell v. Duke of Norfolk [1949] 1 All E.R. 109, 118, the requirements of natural justice must depend on the circumstances of each particular case and the subject matter under consideration.

In the present case the circumstances and the subject matter under consideration are as follows: The respondent was not called on to make an investigation of the appellant’s conduct. Its right to dispense with his services was not limited to specific causes. Its function was not to condemn or criticize him. The decision which the respondent made was that it did not wish to continue the appellant’s services as a constable. His status was that of a constable on probation. The very purpose of the probationary period was to enable the respondent to decide whether it wished to continue his services beyond the probationary period. The only interest involved was that of the Board itself. Its decision was purely administrative. This being so, it was under no duty to explain to the appellant why his services were no longer required, or to give him an opportunity to be heard. It could have taken that course as a matter of courtesy, but its failure to do so was not a breach of any legal duty to the appellant.

I would dismiss the appeal with costs.

Appeal allowed with costs, MARTLAND, PIGEON, BEETZ and PRATTE JJ. dissenting.

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Solicitors for the appellant: Cameron, Brewin & Scott, Toronto.

Solicitors for the respondent: Waterous, Holden, Kellock & Kent, Brantford.

Solicitor for the Attorney General of Ontario: D.W. Brown, Toronto.