Indemnification of Legal Expenses Denied to. Off-Duty Constable who Used Excessive. Force While Acting as a Private Citizen

Transcription

1 In Peel Regional Police Association and Regional Municipality of Peel Police Services Board, the Arbitrator determined whether the Board was correct to deny Constable Szuch indemnification for legal expenses he incurred in defending a civil action. Although the civil action was settled, the Peel Police Services Board refused to indemnify Cst. Szuch, arguing that he was acting as a private citizen at the time the circumstances inciting the civil action arose. The collective agreement stipulated that indemnification would not be provided for legal costs arising from the actions or omissions of members in their capacity as private citizens. The Board further argued that the Constable s actions were not done in the attempted performance in good faith of his/her duties as a police officer which was a prerequisite to indemnification under the collective agreement. The situation that gave rise to civil charges against Cst. Szuch occurred while he was at home, off duty. A neighbour approached Cst. Szuch, telling him that a group of youths were smashing pumpkins on her driveway, and that her husband was trying to deal with the situation. Cst. Szuch then ran across the street where he witnessed two young males and the neighbour s husband, who was holding a baseball bat. The Constable testified at the grievance hearing that he perceived that there had been a fight and that there was a weapon and a Indemnification of Legal Expenses Denied to threat. He testified that he had told the young Off-Duty Constable who Used Excessive males to keep their hands where he could see them Force While Acting as a Private Citizen and announced that he was with the Peel Regional Police, and that the Waterloo Regional Police were on their way. Following this, Cst, Szuch took both Johnstone & Cowling October 2012 Vol. 2 No. 4

2 youths to the ground, during which one male was struck in the neck by Cst. Szuch while he was trying to reach for a cell phone in the male s pocket. The male sustained a cut lip, scrapes and a black eye. A driver had stopped to see what the situation was about, and according to the driver s testimony, he asked Cst. Szuch if he was a police officer and did not receive a response. Cst. Szuch was charged criminally for assault, however this was withdrawn. Police Services Act charges were laid for two counts of discreditable conduct which Cst. Szuch admitted to. The agreed statement of facts regarding the disciplinary hearing stated that Cst. Szuch had been off duty at the time and that he used unnecessary force against the males who did not fight back or flee, resulting in injuries such as scrapes, lacerations and a cut lip which required stiches. The Arbitrator found that although off-duty officers were authorized to take action if the circumstances warranted it, this situation did not. When Cst. Szuch arrived at the neighbour s property, there were no signs of violence and the young males were not resisting or fleeing, yet Cst. Szuch proceeded to assault and injure persons at the scene without provocation. The Arbitrator found that Cst. Szuch did not take any steps to show that he was acting in his capacity as a police officer, as he did not identify himself as such or place the young males under arrest. No notes were taken, nor was a use of force report filed by Cst. Szuch. The Arbitrator also pointed to the agreed statement of facts for Cst. Szuch s disciplinary hearing in which he admitted he was off duty at the time of the incident. Cst. Szuch was found to have been acting as a private citizen and therefore was not entitled to indemnification for his legal expenses. Furthermore, the Arbitrator noted that even if it could be said that Cst. Szuch was acting in his capacity as a police officer, his use of excessive force, as evidenced by the injuries the males sustained, precluded him from indemnification, as per the collective agreement s mandate that the conduct be attempted performance in good faith of his/her duties as a police officer. Employees Entitled to Benefits Past Age 65 Unless Collective Agreement Clearly and Unambiguously States Otherwise In Strathroy-Caradoc Police Association - and - Municipality of Strathroy-Caradoc Police Services Board the civilian grievor, Ms. Lois Goldrick worked as a dispatcher for the Strathroy-Cardoc Police Service, and on April 29, 2011 she turned 65 years old. Upon reaching age 65, the Employer informed Ms. Goldrick that her health benefits were terminated. In 2006, amendments to the Ontario Human Rights Code R.S.O. 1990, ch. H.19 ended the requirement that employees retire at age 65, however permitted employers to maintain insurance policies that provided different or no benefits to employees who continued to work past 65. Such policies were thus legally discriminatory. The Arbitrator noted however, that according to City of London v. Canadian Union of Public Employees, Local 107, [2010] OLAA No 347, although the amendments to the Human Rights Code enable employers to use benefit plans that discriminate on the basis of age, in order for these to be effective, the collective agreement itself also has to specifically limit benefits to age 65 by virtue of clear and unambiguous language. Otherwise, the benefit plan would contradict the collective agreement. The Arbitrator thus looked to the parties collective agreement to determine if the parties had negotiated a legally permitted discriminatory benefit plan. The Arbitrator noted that the parties

3 collective agreement was negotiated without discussing the changes in the Human Rights Code. The collective agreement provided that the Employer would pay on behalf of each full-time member, the full cost of maintaining hospital, medical and extended healthcare benefits The Association submitted that no differentiation based on age was set out in this provision, as it referred to each member, not just those members under age 65. Because there was no age differentiation, the Association argued that the Employer had therefore bargained that it would provide benefits to all fulltime members, regardless of age. Conversely, the Employer contended that it had specifically negotiated for a benefit plan that afforded different benefits to those employees over age 65. It submitted that reference to a particular insurance policy which set out termination dates of benefits was a part of the collective agreement and therefore demonstrated that the Employer had explicitly limited its obligation to pay benefits to age 65. In analyzing the collective agreement, the Arbitrator found that the reference to a particular insurance policy in the benefits provision did not form part of the agreement. The provision set out that the Employer retained the right to change insurance carriers, therefore the policy itself could not be said to be a part of the collective agreement, as it was not an expression of the parties joint bargain. The Arbitrator agreed with the Association that the collective agreement did not clearly or unambiguously state that benefits would terminate at age 65. Absent clear language, the Arbitrator held that it could not be assumed that the Board meant to limit benefits at this age. Therefore, the clear termination date of benefits outlined in the insurance policy purchased by the Employer was found to be contrary to the collective agreement and the grievance was allowed. _ OCPC Upheld Sergeant s Demotion for Domestic Violence; Deference to Hearing Officer on Questions of Fact _ In Provincial Sergeant S.C. (Scott) Burrows and Ontario Provincial Police, Sergeant Burrows was charged with Discreditable Conduct for verbally and/or physically assaulting his spouse, Jennifer Burrows on three separate occasions. On the first occasion, Jennifer Burrows testified that her husband punched her in the breast on the way to the hospital to be induced into labour. Sergeant Burrows account of the event was that she punched him in the head and if she was hit, it was due to his attempt to block her blows. Jennifer Burrows testified that on the other two occasions, she was respectively pushed down to the floor and punched in the chest. Sergeant Burrows denied he pushed her down, but contended that she punched, kicked and scratched him. At the disciplinary hearing, the Hearing Officer imposed a penalty of demotion in rank from Sergeant Level One to Sergeant Level Two for a period of sixteen months. Sergeant Burrows appealed this decision to the Ontario Civilian Police Commission, arguing that the Hearing Officer misapprehended the evidence by failing to consider evidence relevant to a material issue, that the Hearing Officer erred in her findings of the credibility of witnesses and lastly, that the Hearing Officer s decision lacked a sufficient evidentiary foundation to have found that Sergeant Burrows committed Discreditable Conduct on clear and convincing evidence. The Commission found that the Hearing Officer did not misapprehend the evidence because she did consider evidence relevant to the material issue and came to findings that were within the range of reasonable outcomes. With regards to credibility, the Commission found that the Hearing Officer identified and applied the correct legal test for determining credibility, namely the O Hallaran test from Faryna v. Chorny (1952) 2 DLR (BCCA). It found that the Hearing Officer came to reasonable decisions regarding the witnesses credibility based on her examination of the consistency of their stories and the possibilities that surrounded the currently existing conditions. The Hearing Officer concluded that she was satisfied, based on clear and convincing evidence, Sgt. Burrows physically assaulted Jennifer on three

4 occasions. The Commission found that although the Hearing Officer could not find Sergeant Burrows criminally guilty of assault, the finding that the assault occurred was inextricably interwoven into the Discreditable Conduct charge. The Hearing Officer s finding that Sergeant Burrows committed one count of Discreditable Conduct fell within the range of possible outcomes as per Dunsmuir v. New Brunswick [2008] SCJ No 9, and thus the Commission dismissed the appeal. As to penalty, the Commission upheld the Hearing Officer s imposed demotion of sixteen months, noting that the Hearing Officer reasonably concluded that domestic violence was viewed seriously by the OPP and that the potential damage to the OPP s reputation was an aggravating factor. Additionally, the Commision found that the Hearing Officer properly considered that although Sergeant Burrows employment history was a mitigating factor, he had not taken responsibility for his misconduct and so it was important to send a message to officers that significant sanctions would be imposed for misconduct involving domestic violence. The Commission found that the Hearing Officer s penalty was within the range of possible, acceptable outcomes and thus also dismissed the appeal of penalty. In arriving at its decision, the Commission reiterated its comments from Barlow and Ottawa Police Service, (August 15, 2011, OCPC), stating that the Commission s role on appeal is not to second-guess the decision of a hearing officer but to review their decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a logical manner. This decision demonstrates that the standards of review enunciated in Dunsmuir are being followed by the Commission and that appropriate deference is given to Hearing Officers on questions of fact. Moreover, the penalty imposed and then upheld, shows that domestic violence is taken seriously by Hearing Officers and the Commission alike. Failure to Investigate Domestic Violence Incident; OCPC Upheld Hearing Officer s Finding of Neglect of Duty In Provincial Constable L.J. Turgeon and Ontario Provincial Police and G.C., Constable Turgeon was charged with Neglect of Duty for failing to properly investigate a domestic violence complaint made by a public complainant, G.C. Constable Turgeon initially interviewed G.C. regarding the incident and labeled her as a liar and a cuckoo after she stormed out of the interview visibly upset. He did not complete all the necessary paperwork required by the OPP s Domestic Violence Occurrence Policy (LE239), but did record in his notebook that G.C. reported that her husband had been verbally abusive and intimidating. Through an unrelated matter, Sergeant Cyr learned of G.C. s interview with Constable Turgeon and after reviewing Constable Turgeon s notebook, determined that the matter needed to be investigated further. This subsequent interview led to the arrest of G.C. s husband for Criminal Harassment and a complaint being filed against Constable Turgeon with the OIPRD. The Hearing Officer imposed a penalty of forfeiture of forty hours for committing one count of Neglect of Duty. On Appeal, Constable Turgeon argued that the Hearing Officer erred by failing to analyze the credibility of Constable Turgeon and G.C. before assessing the Constable s actions, and also that the Hearing Officer s finding that Constable Turgeon had sufficient information to warrant an investigation into G.C. s domestic dispute was unreasonable. The Commission determined that the Hearing Officer used the correct test for determining credibility from Faryna v. Chorny (1952) 2 DLR (BCCA); namely that the test of the truth of the story of a witness in such cases must be its harmony with the preponderance of the probabilities, which a practical and informed person would readily recognize as reasonable in that place under those conditions. In assessing the relative credibility of G.C. and Constable Turgeon, the Hearing Officer found that G.C. s version of

5 events was very consistent with the overall evidence, while that of Constable Turgeon was not. The Commission found that the Hearing Officer s conclusions regarding credibility were reasonable. The Commission also affirmed the hearing Officer s determination that Constable Turgeon had sufficient information to warrant an investigation into the alleged domestic dispute. It was reasonable for the Hearing Officer to arrive at this conclusion based on the fact that the testimony of all witnesses except Constable Turgeon agreed that such an investigation was needed. The overall finding of Neglect of Duty and corresponding penalty arrived at by the Hearing Officer fell within the range of possible, acceptable outcomes defensible in respect of the facts and the law as per Dunsmuir v. New Brunswick [2008] SCJ No 9 and thus the Commission dismissed the appeal. Arbitration Board Upheld Calgary Fire Department s Discipline for Fire Captain s Derogatory Slurs In Calgary (City) v. Calgary Fire Fighters Association (International Association of Fire Fighters, Local 255), the Calgary Fire Department ( CFD ) employed three female firefighters, which was unusual as there were only 30 female firefighters in the total uniformed member workforce. On one occasion, Fire Captain Hendricks was documented as asking, Why is there so many gashes at your hall? [sic] and upon being asked to clarify what he said, Hendricks replied Cunts, I mean cunts. Hendricks was unaware that when he made these statements a female officer was present, and when he was alerted to the fact, he immediately apologized. Hendricks was initially terminated by the CFD upon learning of these statements. The CFD subsequently rescinded Hendricks termination and instead imposed a temporary reduction in rank for six months as well as an eight-week suspension. The Association conceded that discipline was appropriate, however grieved that the suspension and reduction in rank was overly severe. The arbitration board was tasked with determining whether the discipline was too severe a penalty taking into account all the circumstances. The board looked at the context of the workplace, Hendricks position as a Fire Captain and the content of the statements. Upon considering the authority fire Captains hold, as well as mitigating factors in the Captain s favour such as a written apology and an untarnished disciplinary record over 33 years of service, the arbitration board upheld the CFD s modified disciplinary sanctions. The arbitration board emphasized the fact that Captains have a supervisory position and are important role models and thus are expected to hold this position with dignity. Being that the demeaning and derogatory remarks came from an authoritative figure, this not only negatively impacted women fire fighters, but also tarnished the credibility of the entire fire department. For these reasons, the arbitration board found that the CFD s disciplinary measures were not too severe. The CFD had already lessened its initial reprimand of termination, which showed reasonableness and good faith on its part, considering the Captain s clear record. The board found that the suspension and temporary reduction in rank was an appropriate penalty that was not too harsh, yet still sent a strong message that this type of behavior would not be tolerated. In this case, the CFD was reasonable in considering the Captain s years of service in which there were no reprimands, and the arbitration board likewise took this into account in warranting a less severe punitive measure than termination. However, the arbitration board recognized that an example needed to be set that pejorative remarks about female members of a male-dominated profession such as fire fighting would not be tolerated. This case marks a well-balanced approach on the part of the employer in fostering an inclusive work environment, while recognizing the need to analyze the situation before terminating an employee with a discipline-free history.

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