Johnstone & Cowling llp

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1 Johnstone & Cowling llp Subject Officers Must Attend at Hearings Despite Being on LTD Subject officers in police disciplinary proceedings have often claimed an inability to attend hearings while being on long-term disability ( LTD ). This often causes ongoing delays in the hearing process, which is a source of frustration to police services. However, Ian Johnstone and David Cowling of Johnstone & Cowling LLP were successful in alleviating this frustration, in the recent case of Sergeant James Mauro and Thunder Bay Police Service. This case clarifies that subject officers must attend hearings despite being on LTD. LTD status in and of itself is insufficient to exempt a subject officer from appearing, and as such, it is legally correct for the adjudicator of a disciplinary hearing to require further medical documentation to explain why an adjournment of the hearing is necessary. If sufficient medical evidence is produced, an adjournment may be granted, however, a lack of such evidence will necessitate the subject officer to be present at his or her disciplinary hearing. In this case, Sergeant James Mauro of the Thunder Bay Police Service (the Service ) was charged with discreditable conduct and deceit under the Police Services Act Code of Conduct for forging a letter and attempting to adduce it as evidence at a prior arbitration hearing in In March 2010, Sgt. Mauro received a Notice of Hearing commanding him to appear at a first hearing before the Hearing Officer, Supt. (Ret d) Morris Elbers regarding these charges in April However, the hearing was adjourned until October 2011, as Counsel for Sgt. Mauro had requested such an adjournment due to Sgt. Mauro being on LTD. Nearing the date of the rescheduled first hearing, Counsel for Sgt. Mauro sought a further adjournment, this time producing a redacted doctor s note which indicated that Sgt. Mauro s health may decline should the hearing proceed.

2 The Hearing Officer held that the doctor s note was insufficient to warrant an adjournment, and as such, the hearing would proceed as scheduled. Neither Sgt. Mauro nor his Counsel attended at the hearing in October 2011, but an agent appeared to request another adjournment. The Hearing Officer requested that additional medical details and information be provided in order to substantiate further adjournments. These requests went unanswered and this pattern continued until February 2012, when the Hearing Officer agreed with submissions made by Mr. Johnstone, Counsel for Service, that the Hearing Officer had authority to proceed with the hearing, despite the absence of the subject officer or any representative. In March 2012, two years after the Notice of Hearing had been served, Supt. (Ret d) Morris Elbers found Sgt. Mauro guilty of discreditable conduct and imposed a penalty of demotion to First Class Constable for 12 months. Sgt. Mauro appealed this decision to the Ontario Civilian Police Commission (the Commission ) the following year. He requested that the Hearing Officer s decision be quashed on the basis that the Hearing Officer was biased, the Prosecutor was one-sided in his presentation of the evidence and that the Hearing Officer s decision to proceed with the hearing despite Sgt. Mauro s absence was unfair. Particularly, Sgt. Mauro argued that the Hearing Officer wrongfully deprived Sgt. Mauro of the opportunity to participate in his disciplinary hearing while he was on LTD. He argued that officers who are on LTD are exempt from appearing at such hearings, and further, that the hearing could not proceed at all while he was on LTD. Moreover, Sgt. Mauro contended that requesting additional medical information to justify adjournments violated Sgt. Mauro s privacy rights and that the penalty was too severe. Conversely, Mr. Cowling, representing the Service on the appeal, argued that numerous attempts to accommodate Sgt. Mauro s requests for adjournments were made by the Hearing Officer; however, fairness to both sides obliged the Hearing Officer to consider the timelines of the proceedings. The Service submitted that the main issue on the appeal was whether Sgt. Mauro s right to appear at his hearing had been deprived, and noted that there is a distinction between being unable to work while on LTD and being unable to attend at a hearing. The Service contended that being on LTD is insufficient evidence in and of itself to excuse a subject officer from appearing at his or her hearing. Rather, a Hearing Officer is entitled to request medical documentation to substantiate that a worker is in fact unfit to attend at a hearing, which would justify an adjournment. With respect to the privacy rights regarding such medical documentation, the Service submitted that when a worker raises medical issues as a reason for accommodation, these privacy rights are lessened. As such, in the Service s submissions, the Hearing Officer s request for medical documentation was reasonable. Furthermore, the Service maintained that the question of bias was an issue that should have been raised at the original hearing, and that there was no evidence that the Prosecutor representing the Service acted unfairly. In the result, the Commission agreed with the Service s submissions and dismissed Sgt. Mauro s appeal. The Commission affirmed that the original hearing was the proper forum in which to advance an allegation of bias, and further, that both the claims of bias and prosecutorial misconduct were unsubstantiated. As to whether being on LTD exempted Sgt. Mauro from appearing at his hearing, the Commission found that legislation cited in the Notice of Hearing clearly set out that the Hearing Officer was entitled to proceed in the absence of the subject officer. The Commission further held that

3 the Hearing Officer was correct to go behind and look beyond the LTD status of Sgt. Mauro because the mere fact of being on LTD was insufficient to support the requested adjournments. The Commission also upheld the Hearing Officer s finding that the content of the doctor s note was insufficient to establish a medical reason for Sgt. Mauro to be absent from the hearing. Consequently, the Commission found that the Hearing Officer s request for additional medical documentation to determine Sgt. Mauro s ability to participate and to justify accommodations was necessary, and in fact, legally correct. What the Commission found to be unreasonable, was the notion that a hearing should be postponed indefinitely where there is a lack of medical documentation to support such lengthy delays. As such, the Commission held that due to Sgt. Mauro s lack of cooperation in failing to provide the requested medical information, the Hearing Officer s decision to proceed with the hearing in February 2012 was reasonable. As to the penalty, the Commission found that the Hearing Officer extensively considered appropriate sentencing factors. The penalty was within the appropriate range of penalties for such misconduct, and therefore, the Commission upheld the 12-month demotion. Police services should be aware that being on LTD alone does not exempt a subject officer from appearing at his or her disciplinary hearing. Accordingly, in considering the viability of requests for adjournments due to medical reasons made by a subject officer, Hearing Officers are entitled to request further medical documentation to substantiate such requests, and a lack of cooperation will not bode well for the subject officer. Through his counsel, Sgt. Mauro is appealing this decision to Divisional Court. The J&C LLP team will advise of the results of the decision of the Divisional Court. Making False Claims Against Superiors Deplorable ; Constable Dismissed Immediately In Pembroke Police Service and Constable Shawn Piercey, Cst. Piercey was charged with six counts of Discreditable Conduct for numerous false and disparaging statements he made to the RCMP regarding the Chief and Deputy Chief of the Pembroke Police Service. Specifically, Cst. Piercey alleged that the Chief and/or Deputy Chief did not follow the tendering process for renovations to the Police Service Building and adjoining Town Hall, and failed to address concerns about asbestos in such building. In addition, Cst. Piercey claimed that a female employee was sexually harassed by the Chief and Deputy Chief and that they instructed him to not lay charges against a particular young person he arrested. Furthermore, Cst. Piercey had also been criminally charged with operating a motor vehicle while impaired and Causing a Disturbance, and he alleged that the Chief and/or Deputy Chief influenced the Crown s office to charge him. Lastly, Cst. Piercey alleged that the Chief and Deputy Chief intentionally inhibited the career development of members who voiced concerns. He alleged they refused to send such members on courses and used this type of punishment to threaten and intimidate members. Given that the Pembroke Police Service was being abolished and the OPP was taking over, the Service Prosecutors, Ian Johnstone and Alex Sinclair, withdrew two of the counts in order to expedite the hearing process. Accordingly, the Hearing Officer dealt with four counts of Discreditable Conduct against Cst. Piercey. As to the first count regarding Cst. Piercey s allegations about the improper tendering process for renovations, the Hearing Officer held that there was no evidence other than conjecture that these statements were not made by Cst. Piercey. Regarding the substance of the statements, based on the evidence, the Hearing Officer found that small-scale

4 repairs to cell blocks over a long weekend were regarded as an emergency, so the fact that no tender was put out for these types of repairs was deemed proper. Regarding the larger renovations to the building, the Hearing Officer held that although the procurement policy of the Town of Pembroke was not followed, the Pembroke Police Services Board had approved such renovations. The Hearing Officer agreed with submissions by Counsel for the Service, that not each particular of a count must be proven, and as such, Cst. Piercey was found guilty on this count. Count two involved Cst. Piercey s alleged statement to the RCMP that asbestos concerns were not addressed by the Chief or Deputy Chief. The evidence showed that the Chief had contacted a Health and Safety Consultant who was a part of the Pembroke Police Services Joint Health and Safety Committee and also, that the Ministry of Labour was monitoring the asbestos issue at the Service to ensure all precautions were taken. The Hearing Officer found that Cst. Piercey made the statements, and that the basis for such statements was gossip and conjecture. Cst. Piercey did not know the policy and procedures of the workplace when he made his complaint, and as such the Hearing Officer held that his statements were wilful and negligent, and found him guilty of this count. Regarding count three, whether Cst. Piercey made statements to the RCMP that the Chief and/or Deputy Chief coerced the Crown s office to criminally charge him, the Hearing Officer found Cst. Piercey guilty. The evidence demonstrated that the Crown Attorney, who was asked by the Chief to review the impaired driving charges against Cst. Piercey, advised that the charges were reasonable and recommended that an outside police service also review the investigation. There was some evidence that a Detective Sergeant had made derogatory comments about Cst. Piercey to the Crown, however there was no link back to the Chief or Deputy Chief. As such, the statements made by Cst. Piercey were found to have been totally false. Count four concerned whether Cst. Piercey told the RCMP that the Chief and/or Deputy Chief instructed him to not lay charges against a young person who had broken into and stolen from her father s residence. This count was found to be unsubstantiated as there was a lack of evidence to support this charge, and as such the Hearing Officer found Cst. Piercey not guilty. In reaching a decision as to penalty, the Hearing Officer considered the prosecution s request that Cst. Piercey be dismissed, against counsel for Cst. Piercey s request for a forfeiture of hours. The Hearing Officer took into account numerous sentencing factors including the negative effects Cst. Piercey s actions had on the public and the damage caused to the reputation of the Service. The Hearing Officer concluded that the misconduct in question was of a serious nature as it betrayed the trust of the community and the Service, and therefore tarnished the images of the active members. The effectiveness of Cst. Piercey as a police officer was also doubted, as the Hearing Officer found that there was no evidence that Cst. Piercey was remorseful or took any accountability for his actions. As such, the Hearing Officer found it unlikely that Cst. Piercey would be able to be rehabilitated. To allow Cst. Piercey to return to the Service would not send a signal that this type of behaviour is intolerable and would not hold Cst. Piercey accountable. Accordingly, in order to provide specific and general deterrence, the Hearing Officer concluded that the penalty must indicate to Cst. Piercey and the police community at large, that individuals who contemplate this type of behaviour do so at their own peril, and that the penalty should preclude leniency. The Hearing Officer reviewed good character references and awards given to Cst. Piercey, which were mitigating factors, however the aggravating factors of the betrayal of the Service s and public s trust outweighed them. The

5 Hearing Officer noted that honesty, integrity and accountability are characteristics a police officer must possess to conduct his work. Without these, you make it near impossible or just plain impossible to do your job. The Hearing Officer commented that Cst. Piercey s conduct was deplorable, and as such, Cst. Piercey was dismissed from the Pembroke Police Service immediately, just days before it would cease to exist and be taken over by the OPP. This case serves as a caution to officers that false claims made against superiors will not be taken lightly. The responsibilities that police officers have to the public, and the integrity such a position holds are highly valued. Such a disregard for this position of authority will result in the privilege of holding such an office being revoked and warrant the punishment of dismissal. A Transfer to a Less Favourable Position that Appropriately Accommodates a Disability is Not Considered Discriminatory In Bowman v. Toronto Police Services Board, the Human Rights Tribunal of Ontario (the Tribunal ) considered whether the Toronto Police Services Board (the Board ) and the personal Respondent, Inspector Baptist, discriminated against the Applicant, Constable Bowman on the basis of disability when he was transferred to a different division that he found less favourable. The Tribunal held that transferring the officer to a less favourable position, that nevertheless appropriately accommodated Cst. Bowman, was not discriminatory. Cst. Bowman was a police officer for 23 years and for the majority of his career he worked at 23 Division. Cst. Bowman was involved in an off duty traffic accident that rendered him unable to return to enforcement duties, and as such, was exempt from use of force training. The disability was initially temporary and Cst. Bowman was transferred to ecops Quality Control at 23 Division. However, when the disability was eventually classified as permanent, this meant that the decision about where to place Cst. Bowman to accommodate his needs could include a service-wide search. Upon reviewing Cst. Bowman s permanent medical status, Inspector Baptist, the officer responsible for 23 Division, transferred him to the Central Alternative Response Unit ( CARU ). The CARU is a call service outside of 23 Division that receives calls for the entire service that have been deemed to be non-emergency in nature. The Inspector moved Cst. Bowman to CARU as this unit provided appropriate accommodation, while leaving the position at 23 Division vacant for an officer who could perform enforcement duties if necessary. Although Cst. Bowman was informed of the reasons for the transfer, he felt that he was being transferred because of his permanent disability. Furthermore, Cst. Bowman submitted that there was a stigma surrounding working at CARU, as it is staffed with medically restricted employees or those who are under professional investigation. This is an unusual case, as Cst. Bowman did not allege that his assignment to CARU did not accommodate him up to the point of undue hardship. Rather, Cst. Bowman alleged that he was singled out because of his disability and was transferred from a position that appropriately accommodated him to another position that achieved the same result, but was less favourable. Therefore, this case did not involve allegations of disability related discrimination in the context of a failure to accommodate, but rather discrimination under section 5(1) of the Human Rights Code (the Code ). Section 5(1) prohibits discrimination in the workplace, generally, on Code grounds such as disability. As such, Cst. Bowman argued that but for his disability, he would not have been transferred to the less favourable position at CARU. Furthermore, Cst. Bowman contended that other officers with permanent disabilities at 23 Division were not singled out and transferred to CARU, and no assessment was conducted as to whether he, or the other disabled officers, were suitable for such a transfer.

6 The Board did not dispute that Cst. Bowman was transferred due to his inability to perform the essential duties of a front-line officer, and was therefore being treated differently than a non-disabled officer. However, the Board argued that discrimination is more than a difference in treatment, and not every distinction is discriminatory. Furthermore, the Board contended that despite it not being exciting work, Cst. Bowman was being appropriately accommodated in accordance with his restrictions as to the work he could perform. In its decision, the Tribunal held that the duty to accommodate does not require the Board to provide an accommodation assignment that is perfect or even preferred in the eyes of Cst. Bowman. The Tribunal further noted that the Board was not obligated to continue to provide Cst. Bowman with the work that he had become accustomed to performing, in the way he preferred. The Tribunal held it was not discriminatory for the Board to decide that Cst. Bowman s position would be better filled by an officer who was able to perform essential front line duties if need be. As such, Inspector Baptist s decision to restructure the manner in which work was being done in the Division was not discriminatory. Furthermore, there was no evidence that this decision was motivated by an anti-disability animus. As to whether the Board should have considered another disabled officer for the transfer to CARU instead of Cst. Bowman, the Tribunal held that this was not necessary. The Tribunal noted that even if another officer being transferred had been a better operational decision, the decision to transfer Cst. Bowman s would not have amounted to discrimination on the basis of disability. The Tribunal also held that although there may have been negative perceptions about CARU, these did not influence Inspector Baptist or any person responsible for affecting transfers. Moreover, the Tribunal held that although Cst. Bowman was dissatisfied with the work he was tasked with doing at CARU, these disadvantages did not constitute discrimination under the Code. Having found that the Board and Inspector Baptist had fulfilled their obligations to accommodate Cst. Bowman, as his abilities were being met in this position, the Tribunal held that the decision to transfer Cst. Bowman was not discriminatory. This decision reiterates the fact that when an officer becomes disabled, he or she undoubtedly has the right to be accommodated by the Service up to the point of undue hardship. However, this decision also illustrates that even though the position that the officer is assigned may not be a preferred one, such a transfer in and of itself is not discriminatory. Court Quashes OIPRD s Decision to Not Investigate G20 Complaint Against Chief; Section 60(2) of the PSA is Not a Limitation Period In Wall v. Independent Police Review Director, the Ontario Superior Court of Justice, Divisional Court quashed a decision of the Office of the Independent Police Review Director ( OIPRD ), which refused to investigate a complaint against Chief Blair of the Toronto Police regarding an incident occurring during the G20 Summit of The Court remitted the matter back to the OIPRD to consider whether the complaint should be investigated, taking into account certain factors enumerated by the Court, including the fact that the time period set out in section 60(2) of the Police Services Act ( PSA ) is not a limitation period. Following the G20 Summit in Toronto in June 2010, there were numerous complaints made to and investigated by organizations including the OIPRD regarding the conduct of the police officers during the riots that occurred at the

7 Summit. The applicant in this case, Jason Wall, made such a complaint to the OIPRD regarding his arrest during the Summit. Wall was arrested for being disguised with intent to commit an indictable offence when the police saw him walking down a Toronto street wearing a bandana. He was released after spending 28 hours in custody, and no charges were laid. Wall subsequently filed a complaint of police misconduct with the OIPRD, alleging that he had been assaulted and provided inadequate food or water. The initial investigation, released over a year later, indicated that the arresting officer may have been acting on directions from superiors, who were in turn instructed by the Chief, to arrest anyone wearing a bandana or a mask. Based on this new information, Wall filed another complaint with the OIPRD in January 2012, requesting that it re-investigate the initial complaint, or alternatively, commence a new complaint against Chief Blair and investigate the briefing incident. The OIPRD informed Wall that it would not be investigating the complaint against Chief Blair because more than six months had passed since the incident. The facts supporting the complaint occurred in 2010 and the OIPRD treated the second complaint as a new complaint made in Therefore, the OIPRD exercised its discretion pursuant to section 60(2) of the PSA to not deal with the complaint. Wall subsequently sought judicial review of the OIPRD s decision not to pursue the investigation, alleging a breach of procedural fairness due to the lack of reasons provided by the OIPRD. Wall sought an order of mandamus, requiring the OIPRD to investigate the complaint. The Court did not take issue with the OIPRD s administrative decision to treat the second complaint as a new complaint. However, the Court did note that any such administrative decisions can have no impact on the time parameters set out in section 60(2) of the PSA. This was the first case that interpreted section 60(2) of the PSA, and the Court held that the permissive language in the section indicated that it was not meant to act as a limitation period that barred complaints that were filed beyond six months after the incident complained of occurred. The Court compared the permissive language of section 60(2) to that of section 83(17) which has been dealt with by the courts at length, and found that it is well established that section 83(17) creates a presumptive period but not a limitation period. Therefore, the Court held that the six-month time period set out in section 60(2) is a guideline rather than a strict time limit. At the six-month point, the Court held that the OIPRD has discretion to not deal with the complaint if other factors are considered, such as the reasonableness of the delay and discoverability, namely, when the basis of a claim is discovered. Accordingly, the Court held that the OIPRD was incorrect in law by applying section 60(2) as a limitation period in the first place. Moreover, the Court held that the OIPRD was also incorrect in starting the clock from the time when the initial facts that gave rise to the complaint occurred. Rather, the time should have begun at the time the report was released, which is when Wall first discovered the information about Chief Blair s alleged instructions to the officers. Before this point, Wall had no basis to form the second complaint, and as such, the Court held that the OIPRD erred in law in not considering the discoverability principle. With regard to the OIPRD s reasons as to why it refused to pursue the investigation, the only reasons it provided were that the complaint was made beyond six months of the facts occurring. The Court held that these were not reasons, as this explanation merely recited the legislation. At a minimum, the reasons must answer the question Why?, and the OIPRD failed to do so. As such, the Court held that the OIPRD s failure to provide reasons breached the statutory requirement to provide such reasons. Moreover, this failure to provide reasons breached the doctrine of procedural fairness, which entitles the complainant and the Court to understand the reasoning behind the OIPRD s decision. Additionally, the Court held that the lack of reasons resulted in the

8 OIPRD s decision being unreasonable, as without reasons, the OIPRD s decision had no intelligible basis or justification and lacked transparency. The Court held that such an absence of reasons by the OIPRD warranted the decision being set aside. However, the Court declined to order mandamus, which would require the OIPRD to investigate the complaint. Rather, the Court held that mandamus was not an appropriate remedy because the OIPRD based its refusal to investigate the complaint on a misunderstanding that section 60(2) provided a limitation period. Instead, the Court ordered that the OIPRD s decision was quashed and directed that the OIPRD review the matter and consider whether to proceed with the complaint taking into account the fact that section 60(2) was not a limitation period. The Court also directed that the OIPRD take into consideration that the time period referred to in section 60(2) requires that the principles of discoverability be considered and that if the OIPRD were to decide not to deal with the complaint, that reasons are required. This case marks the first time that section 60(2) PSA has been interpreted, and illustrates how like section 83(17), section 60(2) does not operate as a limitation period. Furthermore, the importance of reasons in administrative decisions is emphasized in this case, and members of the police community should be aware of the obligation to provide, and the right to receive such reasons in this context. Johnstone & Cowling llp JOHNSTONE & COWLING LLP 415 Yonge Street, Suite 701 Toronto, Ontario M5B 2E7 Telephone: Fax: *This newsletter is for general discussion purposes and does not constitute legal advice or an opinion. For legal advice regarding your particular circumstances, please contact us.