Thursday, March 3, 2016

Requirements of a Complaint: Law of Administrative Investigations and Prosecutions by W.J. Manuel and C. Donszelmann

     The question of what constitutes a "complaint" and "a complaint in writing" is an oft litigated issue in professional discipline, judicial misconduct and other administrative law proceedings. Courts and tribunals alike have wrestled with this very serious legal question for years.  Indeed, it is quite common for administrative tribunals to seek independent counsel on such questions.

     I recently came across a book entitled Law of Administrative Investigations and Prosecutions by one of my long-time adversaries in a malicious prosecution action, Mr. William J. Manuel of the Crown Law Office - Civil.  The book, which is published by Canada Law Book co-authored with Ms. Christina Donszelmann and ought to be in the library of any serious litigation lawyer, judge or member of an administrative tribunal.  It is well written and very well researched.  Here is what the learned authors have to say on this issue.  The following is from pages 263-65 of their book:


(a)   Requirements of a Complaint

(i)   Formal

   In various statutes, certain formal requirements with respect to a complaint are set out.  For example, a statute may require that a complaint be in writing and be signed by the person complaining.  In general the court will demand only a substantial degree of compliance with respect to requirements that are merely formal in nature.  However, if a complaint later performs the function of a charge in the proceedings, then the courts will strictly construe any formal requirements.  In Giles  v.  Halton Regional Police Force, an application was brought before the Divisional Court for judicial review of the decision of a hearings officer stating that a charge was properly before him.  The applicant, a police officer, argued that the provisions of the regulations to the Ontario Police Act had not been complied with as there was no complaint in writing.  The regulation to the Police Act set out: "Any constable or other police officer may lay a complaint before a chief of police...alleging an offence in accordance with the code and the chief of police...shall consider the allegations in the complaint and, whee he considers that the allegations warrant, he shall sign the charge sheet.

   Galligan J, delivering the judgement for the majority, noted that the threshold question was whether a complaint had to be in writing or whether it could simply be made orally: He stated:

"I think that the use of the word "lay" before the words "a complaint" indicates a legislative requirement of some formality.  The ordinary meaning of "lay" in its legal context is given in the Shorter Oxford English Dictionary on Historical Principles, 3rd ed., p.1187, as follows:  "to present (an information, indictment) in legal form."  When that meaning is coupled with the requirement that the complaint be laid "before" a person it seems inescapable that the complaint must be in writing.

He noted that his conclusion that the complaint must be in writing was strengthened by the confusion and conflict with respect to who the complainant was in the case and stated:

"In a case like this I would think that one thing ought to be certain and of very easy determination and that is:  who was the complainant ?  A complaint in writing would certainly remove any doubt.  The reasons which led me to conclude that the Regulation requires a written complaint reviewed in the light of the unusual circumstances of this case leave me with no hesitation in finding that the legislative intent expressed in s.6 is that any complaint within the section must be in writing."

It should be noted that the section in question in this particular case contemplated a complaint of considerable detail which, when signed by the chief, became the charge.  In this case, however, the investigating officer had merely presented a report of his investigation and had not gone further to make any allegations against the applicant in that report.  The court concluded:

"Having concluded that the complaint must be in writing, the matter is virtually determined.  The only writing that is suggested might perhaps constitute the complaint is the report of Sergeant Eaton.  It is not necessary in my opinion to review that report in any detail.  I have considered it in its entirety and I must conclude that it is nothing more than a background report with recommendations that are not of a complaining nature.  That report cannot be termed a complaint without torturing the ordinary meaning of the word "complaint".  The Shorter Oxford Dictionary on Historical Principles, 3rd ed defines "complaint" in its legal context at p.383 as follows: " a statement of injury or grievance laid before a court for purposes of prosecution and redress, an accusation or charge."  The report of Sergeant Eaton does not fall within the ordinary meaning of the English word "complaint."

(ii)   Substantive

   The substantive requirements of a complaint are, by definition, more significant than the formal requirements.  If the substantive requirements of a complaint are not met, their absence will normally go to the root of the jurisdiction of the agency when its jurisdiction depends on the existence of a complaint.  In Mackin   v.  New Brunswick Judicial Council, the Attorney General of New Brunswick wrote a letter to the Chair of the Judicial Council raising concerns regarding the conduct of the applicant, a provincial court judge and asking "the Judicial Council to look into these matters."

   After an investigation and report were completed, the council directed that an inquiry be held "into the complaint and the report."  The judge applied for judicial review, seeking an order prohibiting the inquiry and an order quashing the council's direction that an inquiry be held on the ground, inter alia, that the Attorney General's letter did not satisfy the requirements of a complaint under the Act.  The New Brunswick Court of Appeal allowed the application, with Ryan J. A. dissenting.  For the majority, Hoyt J.A. Angers J. A. concurring) stated:

"...the Judicial Council can only receive a complaint which alleges misconduct, neglect of duty or inability to perform his duties.  It then refers "the matter" to the Chief Judge for investigation.  A complaint, in my view, made against a judge must be expressed in clear terms.  I cannot read into Mr. Clark's letter and enclosed press release a complaint against Judge Mackin alleging misconduct, neglect of duty or inability to perform his duties.  It is imprecise in its allegations and is nothing more than a request for the Judicial Council to investigate and see whether it could uncover misconduct, neglect of duty or inability on the part of Judge Mackin to perform his duties.

Specifically, Hoyt J.A. set out that:

"The requirement for a specific complaint or complaints is twofold.  Not only must the Judicial Council know what they are being asked to consider but the Judge against whom the complaint is made must know what allegations he faces.  In this context the letter and press release fall short of a complaint."

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