IN THE MATTER OF AN ARBITRATION BETWEEN DURHAM REGIONAL POLICE ASSOCIATION ( the Association / the Union ) - AND - DURHAM REGIONAL POLICE SERVICE ( the Employer / the Board ) CONCERNING THE OPERATIONAL REVIEW GRIEVANCE of P.C. GLEN TURPIN ( the Grievor ) Christopher Albertyn - Sole Arbitrator APPEARANCES For the Association: Joshua Phillips, Counsel, Green & Chercover Doug Cavanaugh, President Glen Turpin, Grievor For the Board: Matthew Wilson, Counsel Sheila Schwietzer, Director, Legal Services Tracey Lillie, Employee Relations Advisor Hearing held in OSHAWA on May 7, 2009 Award issued on August 31, 2009.
1 AWARD Issue 1. This award addresses the Employer s preliminary objection to my jurisdiction to hear this grievance. The Employer takes the position that the subject matter of the grievance does not fall within the scope of the collective agreement, and is accordingly not grievable. 2. Employer counsel argues that the Police Services Act, R.S.O. 1990, c. P.15, as amended, ( the Act ) provides a complete code for the subject matter of the grievance. Factual background 3. On November 27, 2007, the Chief of Police ordered an internal review of the Grievor s work performance. In exercising his authority to order such an operational review, the Chief referred to s.31(4) and s.41(1) of the Act, which
2 read: Responsibilities of boards 31. Restriction (4) The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force. Duties of chief of police 41. (1) The duties of a chief of police include, (a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31(1); (b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force; (c) ensuring that the police force provides community-oriented police services; (d) administering the complaints system in accordance with Part V. 4. The operational review was to examine the Grievor s police related activities, the reports filed by him, his notebook entries, and related Crown briefs. Interviews were conducted and all complaints regarding the Grievor were examined. 5. The Chief explained his reasons for the review as follows (here I take extracts from his Order of November 27, 2007 to the Grievor):
3 AND WHEREAS the Uniform Collective Agreement and the Service s directives recognize the Chief s ability to direct, classify, and transfer members; I am writing to advise that commencing December 3, 2007 the Service will conduct an internal review of your work performance. In the last twenty months you have been the subject of eight public complaints under the Police Services Act. The sheer number of public complaints that have been generated regarding your job performance gives the Service cause for concern. For instance, the average complaint per uniform officer in 2006 was.19 that is one of every five officers had a complaint filed against them. In 2006, you had 26 times the number of public complaints compared to your colleagues. You were the subject of five public complaints in that year. You are tending in a similar manner for 2007, having been subject to three complaints to date. As of September you had 23 times the number of public complaints compared to your colleagues. The number of public complaints that have been directed at your on the job conduct is noteworthy as no other officer has been the subject of such a high volume of public complaints in recent years. The Service readily acknowledges that with the exception of one public complaint which is still pending, these complaints have been resolved in your favour either by a withdrawal by the Complainant or as having been unsubstantiated. That said, the Service notes that resolution through a withdrawal or a finding the complaint is unsubstantiated does not mean from a performance management perspective that the conduct is entirely appropriate. The Service must investigate your on the job performance to determine if remedial action is necessary given the anomalous statistics concerning the number of conduct complaints you are attracting. As a responsible employer and recognizing the Service s duty to our community members, the Service must be diligent to ensure that the conduct of its officers and its policies and procedures are at all times appropriate. In this instance, given the statistically anomalous number of conduct complaints directed at your job performance the Service would be remiss not to investigate the circumstances surrounding these complaints to ensure that your training, the Service s policies and the handling of these complaints has been appropriate.
4 To that end, effective 12:00hrs December 3 rd, 2007 you will be assigned to the Central Alternative Response Unit D Platoon for the duration of this internal performance review. Please note your assignment to the Central Alternative Response Unit is for administrative reasons as the Service must takes steps to insulate itself, its officers, and members of the community from undue risks. It is noted that seven of the eight conduct complaints relate to unnecessary use of force. This quantity of excessive use of force complaints is objectively disconcerting. In 2006, one third of all excessive use of force complaints received by the Service was directed at your conduct. Moreover, given your expertise as a use of force instructor and your knowledge of the fundamental tenet of deescalation it is difficult to reconcile why an individual with your training and experience is attracting such a volume of conduct complaints. It is the Service s aim to use the internal performance review to verify that your training, call response decisions, and the Service s policies are appropriate. 6. The review was completed in May 2008, and the grievance was filed in June 2008. 7. The review s Executive Summary contains the following findings: - The concept of progressive discipline (increasing penalties) related to police misconduct committed by Police Constable Glen Turpin has not been a consideration for recent penalty assessment. Further to this point, police complaint investigations appear to be mutually exclusive investigations and do not take into consideration previous similar acts. - Police Constable Glen Turpin is responsible for 10% (4/40) of all DPR related Special Investigations Unit (SIU) investigations. - Police Constable Glen Turpin demonstrates that he has the knowledge and skill to complete excellent police work, but fails to perform at an acceptable level on a regular basis; as highlighted through his notebooks, reports and criminal investigations. This is reinforced through his failure to follow proper protocol when dealing
with accused; either through arrest procedures or the proper documentation / submission of General Occurrence reports. 5 8. On May 1, 2008 Superintendent J. Douglass of Policing Operations wrote to the Grievor, as follows, advising him of the operational review report and providing him with a copy: The Service has strived to help you succeed through various performance improvement plans however the results have been temporary at best. Your future success with this organization now solely depends on you and your future conduct and work performance. Until such time as we develop a workable solution you will continue to be assigned to the CARU [Central Alternative Response Unit]. We would ask that you carefully review [the report] as it is our intent to follow through after this review to determine what remedial action will resolve all of these issues in a satisfactory manner. During this review conduct was identified that was beyond the scope of this operational review. As a result some items of concern have been provided to the Professional Standards Branch for their further review. 9. The grievance concerns the Chief s decision to initiate the operational review, the manner in which the review was conducted, and its findings. The grievance claims that: The Association hereby grieves that the Order of the Chief of Police dated November 27, 2007, the transfer of the grievor to the Central Alternate Response Unit, the fact of and the manner in which the operational review was conducted, and the findings of the operational review, dated April 2008 and May 1, 2008, breach Article 5.01 of the Uniform Collective Agreement, in that they:
6 1. Violate section 68(9) of the Police Service Act, R.S.O. 1990, c. P. 1, as amended ( the Act ); 2. Were not produced or conducted in accordance with a policy for the assessment of police officers work performance established pursuant to section 13 of O. Reg. 123/98; 3. Are otherwise inconsistent with section 56, 57, 58, 59, 64, 68, 69 and 72 of the Act, section 13 of O. Reg. 123/98, section 13 of O. Reg. 926 and section 11 of O. Reg. 673/98; 4. Constitute a discriminatory, arbitrary or capricious exercise of the Board s management functions; 5. Constitute an unreasonable exercise of the Board s management functions; 6. Violate natural justice by virtue of bias and the Board s failure to meet its duty of fairness to the grievor; 7. Attribute fault to the grievor for problems with the Board s own policies and procedures, or for circumstances that are beyond his control; and 8. Constitute an improper use of power over, and harassment of, the grievor. 10. The relief sought by the Association is a declaration of the above; a declaration that the findings of the operational review are void; and orders that the operational review findings be expunged from the Grievor s employment record, that the Grievor be returned to the position he was in prior to his transfer to the Central Alternative Response Unit, that the Board apologize to the Grievor and the Association for alleged improper use of its power over, and for the alleged harassment of, the Grievor, that the Board establish a policy for the assessment of police officers work performance, as required by section 13 of O. Reg. 123/98, that the management employees of the Board attend training courses on the lawful
conduct of performance reviews, and that the Board pay the Grievor $25,000.00 in general damages. 7 Submissions 11. Employer counsel relies principally on s.126 of the Act. It reads: Restriction 126. Agreements and awards made under this Part [PART VIII LABOUR RELATIONS] do not affect the working conditions of the members of the police force in so far as those working conditions are determined by sections 42 to 49, subsection 50 (3), Part V (except as provided in subsection 64 (17)) and Part VII of this Act and by the regulations. 12. Employer counsel submits that the allegations in No. s 1 to 3 of the grievance, above, fall under Part V of the Act [Complaints and Disciplinary Proceedings], and so are outside of my jurisdiction. 13. Employer counsel refers to s.42(1)(g) of the Act: Duties of police officer 42. (1) The duties of a police officer include, (g) performing the lawful duties that the chief of police assigns;
8 14. Employer counsel says the above provision precludes the grievance because the transfer of the Grievor to a particular unit, the fact of the operational review, and its findings all fall within the duties of a police officer. The review of those duties is not subject to an arbitration, by virtue of s.126 of the Act. 15. Employer counsel argues that the remaining allegations in the grievance, No. s 5-8, have no basis, or reference, in the collective agreement, and so cannot describe a violation of the collective agreement. 16. As regards No. 4 of the grievance, Employer counsel submits the following. The language of No.4 is taken out of Article 5.01 of the collective agreement, the management s rights clause, which reads: ARTICLE 5 MANAGEMENT RIGHTS 5.01 (a) The Association and its Members recognize and acknowledge that, subject to the provisions of the Police Services Act, it is the exclusive function of the Board to: (i) (ii) maintain order, discipline and efficiency; discharge, direct, classify, transfer, promote, demote or suspend, or otherwise discipline any Member; (iii) hire. (b)if a Member claims that the Board has exercised any of the functions outlined in paragraph (a)(ii) in a discriminatory, arbitrary or capricious manner then such a claim may be the
9 subject of a grievance under the provisions of the grievance procedure outlined in this Agreement or dealt with under procedures within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services, as prescribed by the Police Services Act. (c) The Board will not exercise any of the functions set out in this Article in a manner inconsistent with the provisions of the Agreement or the Police Services Act. 17. Employer counsel points out that, in order for Article 5.01(b) to be engaged, Article 5.01(a)(ii) must have been exercised. Employer counsel says that the Grievor was not transferred, he was re-assigned temporarily to other duties. Accordingly, in Employer counsel s submission, the ouster of jurisdiction under s.126 of the Act applies. 18. The Association takes the position that what occurred to the Grievor was a transfer, not merely a re-assignment of duties. 19. Employer counsel relies on Waterloo (Regional Municipality) Police Services Board v. Waterloo Regional Police Assn. (Beard Policy Grievance), [1999] O.L.A.A. No. 919 (Knopf), and the judicial review, upholding the award, Waterloo Regional Police Services Board v. Waterloo Regional Police Association, [2000] O.J. No. 2264. Arbitrator Knopf described an arbitrator s
10 jurisdiction as follows: 47 Section 126 of the Police Services Act does preclude an arbitrator from making an award that affects working conditions determined by sections 42 to 49, 50(3) and Parts V and VII of the Act. This clearly precludes an arbitrator from taking jurisdiction over any discipline issued to a police officer because it is covered by Part V. But nothing in the restrictions under section 126 precludes an arbitrator from asserting jurisdiction over working conditions in the general sense. Therefore, it is clear that I have no jurisdiction over the question of the propriety of any discipline arising from the beard policy. But nothing in section 126 precludes my jurisdiction to determine the reasonableness of the policy itself. 20. Employer counsel points out that this approach was upheld by the Court on review: 11 Authority over employment issues involving police officers is bifurcated by statute. As noted in Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, [2000] S.C.J. No. 15, S.C.C. March 2, 2000, if the "essential character" of the dispute was disciplinary, the arbitrator had no jurisdiction. If the dispute arose from the interpretation, application, administration or violation of the collection agreement, and the essential character of the dispute was not disciplinary, the arbitrator had jurisdiction. 21. The Supreme Court of Canada, in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] S.C.J. No. 15, sets out the test to be applied by arbitrators to determine whether they have jurisdiction over the issue in dispute. At 25, the Court said:
11 25 To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see [Weber v. Ontario Hydro, [1995] 2 S.C.R. 929], at para. 43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decisionmaker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide: see, e.g., Weber, at para. 54; [New Brunswick v. O'Leary, [1995] 2 S.C.R. 967], at para. 6. 22. Employer counsel argues that the grievance is really about discipline against the Grievor, and that the Grievor has another forum within which to contest any discipline arising from the operational review, even if the Association itself cannot. 23. Union counsel stresses that the grievance is not about discipline, but about the operational review itself. 24. Employer counsel refers to Abbott v. Collins, [2003] O.J. No. 1881 (Ont.
C.A.), to demonstrate that the principles applied in Regina Police Assn. apply equally in Ontario: 12 [2] the respondent OPP officers allege that they were transferred or reassigned as a form of disguised discipline, and seek civil redress and compensation from the alleged responsible officers. The appellant officers moved for an order dismissing the claim on the basis that the pleading disclosed no cause of action which could be pursued in the civil courts and that the matter must be pursued through arbitration. [3] The motion judge held that the essential element of the claim was disciplinary in nature and clearly outside the collective agreement. He therefore dismissed the motion and ordered the action to proceed. [4] For the reasons which follow, I would allow the appeal, set aside the order of the motion judge and dismiss the action. Although the claim is disciplinary in nature, the provisions of the Police Services Act, R.S.O. 1990, c. P.15, together with the limited provisions of the collective agreement, form a complete code relating to police discipline, leaving no room for redress by court action. [19] The issue and legislative context in this case are very similar to those in the recent Supreme Court of Canada decision in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, supra, although the question the court had to answer there was different in that the claim was originally brought not to court, but to an arbitrator who declined jurisdiction. The issue therefore was whether the arbitrator was correct to decline jurisdiction, which required the court to determine whether the dispute arose out of the collective agreement. [26] What may distinguish this case from the Regina Police Assn. case on the
13 facts, is that s. 26 of the Public Service Act deems certain matters to be included in the OPP collective agreement as management rights matters, including discipline. It is because of this provision that the appellants took the position throughout that the matter must go to arbitration. Arguably, s. 26(4) could be taken as the expression of an intention by the legislature that there are some matters of discipline that are beyond the areas covered by the Police Services Act regime and are left to management within the context of the collective agreement. In that context, although they may be grievable matters, because they are left to the discretion of management, the scope of grievance would be very limited. The Informal Disciplinary Procedure which is set out in article 33 of the collective agreement, is the only discipline matter referred to in the collective agreement. It contemplates the potential for informal discipline in respect of a matter which might result in a charge under the Police Services Act, and provides a regime for a meeting with an Association representative present. [27] With that exception, the legislative scheme in Ontario, like the one in Saskatchewan, is intended to create a complete substantive and procedural code for discipline of police officers within the provisions of the Police Services Act and its regulations. As stated by the Supreme Court, this scheme accords with a well founded public policy which gives police boards the "exclusive responsibility for maintaining an efficient police force in the community. The ability to discipline members of the force is integral to that role" (para. 31). I see no basis on which to distinguish the analysis and conclusion reached by the Supreme Court in the Saskatchewan case from this case and the Ontario scheme for police discipline. 25. Employer counsel relies also on Heasman v. Durham (Region) Police Services Board, [2004] O.J. No. 1744 (Ont. Superior Court of Justice) in which an action for damages by a police officer arising from an investigation was stayed because the dispute arose essentially from the discipline issued to the claimant.
14 26. Employer counsel refers to Edmonton Police Assn. v. Edmonton (City), [2007] A.J. No. 456. In that case the Alberta Court of Appeal made clear that the form or characterization of the grievance is less important than its substance. One must glean the essential character, which in that case, in part, was disciplinary in nature. 27. Similarly, in Toronto Police Assn. v. Toronto Police Services Board, [2007] O.J. No. 4156 (ABCA), the Ontario Court of Appeal pointed out, at 11, that by focusing on the relief sought in the application the true nature of the dispute may be obscured. The subject matter of the dispute is to be determined from the factual context. Employer counsel argues that, in this case, my focus should be the factual context and the terms of the collective agreement, rather than on the relief sought and the characterization of the dispute in the grievance. 28. Employer counsel relies particularly on a case between the parties themselves, Durham Regional Police Services Board and Durham Regional Police Assn. (Watts) (Re) (2000), 95 L.A.C. (4th) 323 (Jackson); [2000] O.L.A.A. No. 1003. In that award, Arbitrator Jackson reviewed each of the many allegations in the grievance and found that only 6 of the 16 allegations related to matters covered by the collective agreement, and then only tenuously. Further, at
15 32, the arbitrator found there was no overall duty of fairness in the collective agreement. Applying the test in Weber v. Ontario Hydro, above, to determine the essential character of the dispute, Arbitrator Jackson found, at 36, that this grievance is much more of the police world than of the police labour-relations world. He therefore upheld the Employer s objection to his jurisdiction to hear the grievance. Employer counsel argues that the same principles should be applied in this case. 29. Union counsel takes the primary position that I have clear jurisdiction over this matter, and in the alternative, because the analysis of jurisdiction involves a review of the factual underpinnings of the case, it is premature to determine the issue at this preliminary stage. 30. Association counsel points to the reference in the preamble of the Police Chief s letter to his power to transfer under the collective agreement, and to the Grievor s assignment to the Central Alternative Response Unit. He suggests the assignment constitutes a transfer and, to the extent that is in doubt, I will need to hear evidence before ruling on the preliminary objection. 31. Union counsel suggests that a performance review of the Grievor s
16 conduct could readily have been undertaken by the Police Chief under the powers vested in him by s.13 of Reg. 123/98, which reads: 13. (1) Every chief of police shall establish policies for the assessment of police officers' work performance. (2) The chief of police shall make the policies available to the police officers. (3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance, (a) the police officer's work performance shall have been assessed in accordance with the established procedures; (b) the chief of police shall advise the police officer of how he or she may improve his or her work performance; (c) the chief of police shall accommodate the police officer's needs in accordance with the Human Rights Code, if the police officer has a handicap that requires accommodation because of handicap, within the meaning of the Human Rights Code; (d) the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer's work performance; and (e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. 32. Association counsel argues that the Police Chief had the above process available to him, but failed to use it. Association counsel refers also to the Police Chief s powers to address public complaints against police officers, under Part V of the Act. The Police Chief has specific powers under s.64 of the Act to investigate the conduct of a police officer. A procedure is set out in the Act, with possible disciplinary consequences for the police officer concerned, if found to be guilty of misconduct.
17 33. Union counsel points out that the Police Chief made clear to the Grievor, in his letter informing him of the pending operational review, that he was exercising his powers under the collective agreement. The Association says that, in doing so, the Chief exercised his managerial authority under the collective agreement and therefore he must do so in compliance with the collective agreement. The Association does not claim the Chief s action is veiled discipline. It claims the Chief s conduct amounted to harassment; to the unreasonable exercise of the Board s management functions. 34. Furthermore, according to Association counsel, the Grievor was directed to transfer to the CARU. Counsel argues that transfer is reviewable on the standard of whether the decision was arbitrary, discriminatory or capricious. Decision 35. As was stated in Edmonton Police Assn. v. Edmonton (City), above, at 1, the issue before me is whether the grievance concerns a labour relations matter that arises expressly or inferentially from the collective agreement, or whether it
18 is a matter of police discipline that should be dealt with under the Act. Edmonton Police Assn. v. Edmonton (City) further describes, at 15, the duality recognized by the statute, between ordinary employment disputes dealt with by grievances under the collective agreement and matters of discipline of police officers acting in their public roles dealt with under the relevant statute. 36. An operational review is a term of art. It has no reference in the Act or in the collective agreement. Employer counsel explains it to be a term used among senior management to describe a process whereby a situation of potentially high risk is investigated, where due diligence requires a closer examination of the risk. The Employer had not conducted an operational review with respect to an individual officer prior to this concerning the Grievor. 37. In Regina Police Assn., above, at 29, the Court said, to determine the essential character of the dispute, we must examine the factual context in which it arose, not its legal characterization. That is the inquiry to be made in this case, applying the statutory scheme governing the parties (Haesman v Durham (Region) Police Services Board, above, at 8). 38. The Association claims the grievance is not about veiled discipline. It is
19 about whether a process undertaken by the Police Chief ostensibly under the management rights provisions of the collective agreement rather than under his express powers in the Act and the Regulations was in violation of Article 5.01(b) of the collective agreement. 39. At first blush this case looks very much like discipline what informed the Police Chief s decision to undertake the internal review was concern he had with the Griever s performance and conduct. The quick response to this observation might be, as the Employer suggests, to treat the whole case as therefore falling within the statutory process for dealing with performance and conduct issues, and to declare that I do not have jurisdiction to hear this grievance. That response would be wrong in my view. To determine whether or not I have jurisdiction it is necessary to review what this grievance is about, and how the Act addresses what falls under a collective agreement and what under the statutory processes. 40. The grievance is that, if the operational review was an assessment of the Grievor s work performance, then the Police Chief did not exercise his power consistently with the procedures he established under Part IV of Ont. Reg. 123/98. That, it says, is a violation of Article 5.01(c) of the collective agreement.
20 Similarly, since the operational review was not an investigation as contemplated in Part V of the Act, the procedure adopted by the Police Chief was not consistent with the requirements of Article 5.01 of the collective agreement. Further, if the Grievor s assignment to the Central Alternate Response Unit was a transfer, then the Association says it was done contrary to Article 5.01(b) of the collective agreement. 41. In Sault Ste. Marie Police Service Board and Sault Ste. Marie Police Assn. (Premo) (Re) (2005), 144 L.A.C. (4 th ) 221 (Trachuk); [2005] O.L.A.A. No. 787, Arbitrator Trachuk said the following: 29 The Act contemplates in Part V that any discipline taken against a police officer including actions related to poor work performance will be subject to a statutorily prescribed process. There is no dispute that the actions taken against [the grievor] were not subject to that process. Therefore, either the Board's actions were not within the scope of Part V, or they were disciplinary acts for which the Part V process should have been implemented. The appropriateness of the discipline, if that is what the Board's actions were, is not within my jurisdiction. However, there is no question that the Board purported to make its decision to prohibit [the grievor] from relieving duties under the management rights clause set out in the collective agreement and not under the Act. If it was a decision under the collective agreement then I have the jurisdiction to decide whether the Board violated that collective agreement in making that decision. I cannot lose jurisdiction because an allegation has been made that the actions of the Board were disciplinary. 42. In my view, similar considerations apply in this case. The Association is
21 not seeking to challenge discipline issued to the Grievor. It is not seeking to challenge a performance review under the Regulations. It is challenging the process used by the Police Chief to investigate the Grievor s conduct and the Grievor s transfer. It says that process is in violation of the collective agreement and it claims the Grievor s re-assignment, pending the review, was a transfer in violation of the collective agreement. 43. The Police Chief had a number of options under the Act to address the Grievor s conduct and performance. The starting points for understanding the procedures available to the Police Chief are s.42(1) of the Act, which sets out the duties of a police officer, and s.74, which describes misconduct. If a police officer does not perform their duties properly, in other words if their conduct (what the Act refers to as poor or unsatisfactory work performance, or as misconduct) gives cause for concern, there are defined ways in which that deficient conduct can be investigated and addressed. Firstly, under s.22(1) 1, the Ontario Civilian Commission on Police Services ( the Commission ), the supervening civilian statutory body responsible to ensure the proper functioning of police services in 1 Powers and duties of Commission 22. (1) The Commission s powers and duties include, (e) conducting inquiries, on its own motion, in respect of a complaint or complaints made about the policies of or services provided by a police force or about the conduct of a police officer and the disposition of such complaint or complaints by a chief of police or board;
22 Ontario, may conduct an inquiry into the conduct of a police officer. Secondly, the Employer may, under s.25(1) 2, request the Commission to investigate, inquire into and report on the conduct or performance of a police officer. Thirdly, under s.64(1.1) 3, the Police Chief may, on his own motion, make a complaint against a police officer and thereby usher in an investigation. Fourthly, under s.64(1) 4, the Police Chief is obliged to investigate every complaint about the conduct of a police officer. Fifthly, under s.56(3) and (5) 5, if a complaint regarding the conduct of a police officer being investigated is withdrawn by the complainant, the Police Chief must consent to such withdrawal and may continue to deal with the 2 Investigations into police matters 25. (1) The Commission may, at the Solicitor General s request, at a municipal council s request, at a board s request or of its own motion, investigate, inquire into and report on, (a) the conduct or the performance of duties of a police officer, a municipal chief of police, an auxiliary member of a police force, a special constable, a municipal law enforcement officer or a member of a board; 3 Complaints by chief 64. (1.1) The chief of police may, of his or her own motion, make a complaint about the conduct of a police officer on his or her police force, other than the deputy chief of police, and shall cause such complaint to be investigated and the investigation to be reported on in a written report. 4 Complaints about police officer s conduct 64. (1) Subject to subsections 59 (3), (4) and (5), the chief of police shall cause every complaint made about the conduct of a police officer, other than the chief of police or deputy chief of police, to be investigated and the investigation to be reported on in a written report. 5 Withdrawal of complaint 56. (3) A complainant may withdraw his or her complaint at any time, but if the chief of police or board has begun to hold a hearing in respect of a complaint, the complaint shall not be withdrawn without the consent of the chief of police or board, as the case may be. Same (5) The chief of police or board may continue to deal with a complaint after the complaint is withdrawn, if the chief of police or board, as the case may be, considers it appropriate to do so.
23 complaint. 44. Under s.64(7) 6, following the investigation the Police Chief initiates, if the Chief thinks the police officer s behaviour may constitute misconduct or unsatisfactory work performance, he must hold a hearing into the matter. Certain procedures apply to such a hearing. Among them, there must be written notice to the police officer of the complaint or charges, the officer has a right to legal representation, due process under the Statutory Powers Procedure Act, 1997 applies, and there is a right of appeal to the Commission against any finding of misconduct or unsatisfactory work performance, with a further right of appeal to the Divisional Court on questions of law or mixed fact and law. Most important for this grievance, under s.68(9) 7, referred to in the grievance, the Police Chief may not make reference to any complaint, and may not take account of it for any 6 Hearing to be held (7) Subject to subsection (11), if, at the conclusion of the investigation and on review of the written report submitted to him or her, the chief of police is of the opinion that the police officer s conduct may constitute misconduct, as defined in section 74, or unsatisfactory work performance, he or she shall hold a hearing into the matter. 7 Police officer s employment record (9) The chief of police or board, as the case may be, may cause an entry concerning the matter, the action taken and the reply of the chief of police, deputy chief of police or other police officer against whom the action is taken, to be made in his or her employment record, but no reference to the allegations of the complaint or the hearing shall be made in the employment record, and the matter shall not be taken into account for any purpose relating to his or her employment unless, (a) the complaint is proved on clear and convincing evidence; or (b) the chief of police, deputy chief of police or other police officer resigns before the matter is finally disposed of.
purpose, unless it has been proved on clear and convincing evidence. 24 45. Similarly, the Police Chief could have initiated a review of the Grievor s performance under s.13 of Ont. Reg. 123/98. 46. The Police Chief did not purport to utilize any of these statutory procedures in his decision to undertake the internal review. Although he referred to powers he possesses under the Act (s. 31(4) and s.41(1)), the review was avowedly not an investigation that is expressly contemplated under the provisions referred to in s.126 of the Act or under the Regulations (as, for example, under s.56(5), s.61 8 or s.64 of the Act, or under s.11(1) of O. Reg. 673/98 9 ). Further, the Police Chief invoked his managerial authority under the collective agreement to initiate the operational review and to re-assign or transfer the Grievor. 47. It is notable also that the action the Union complains of the transfer of the Grievor to the CARU is not among the possible disciplinary or corrective 8 Complaints about municipal force, review by chief and board 61. (1) Subject to subsections 59 (3), (4) and (5), the chief of police shall review every complaint that is made about the policies of or services provided by a municipal police force and shall take any action, or no action, in response to the complaint as he or she considers appropriate. 9 11. (1) The chief of police shall also cause an investigation to be conducted forthwith into any incident with respect to which the SIU has been notified, subject to the SIU s lead role in investigating the incident. O. Reg. 673/98, s. 11 (1).
25 responses available to the Police Chief under s.68(1) of the Act 10. This suggests it is not discipline contemplated under the Act. 48. So, what we have in this case is the following: the Police Chief has procedures available to him under the provisions referred to in s.126 of the Act to investigate the conduct of the Grievor. He has chosen not to utilize them. The Employer does not suggest, nor does the Association allege, that the operational review was an investigation by the Police Chief as contemplated under those provisions of the Act. Instead the Police Chief invoked his general authority as a manager under sections of the Act not referred to in s.126 and under his management rights in the collective agreement as the legal foundation for initiating the operational review and for re-assigning the Grievor. Despite this, the Employer argues that the Grievor s remedies lie under Part V of the Act, and not under the collective agreement. 10 Powers of chief of police, subs. 64 (10) 68. (1) The chief of police may, under subsection 64 (10), (a) dismiss the police officer from the police force; (b) direct that the police officer be dismissed in seven days unless he or she resigns before that time; (c) demote the police officer, specifying the manner and period of the demotion; (d) suspend the police officer without pay for a period not exceeding 30 days or 240 hours, as the case may be; (e) direct that the police officer forfeit not more than three days or 24 hours pay, as the case may be; or (f) direct that the police officer forfeit not more than 20 days or 160 hours off, as the case may be.
26 49. The Association s complaint that the Police Chief has not complied with the Employer s obligations under the management rights Article of the collective agreement is a labour relations issue falling under the collective agreement. Among those obligations is the duty, in Article 5.01(c) of the collective agreement, to not exercise any of the [managerial] functions set out in this Article in a manner inconsistent with the provisions of the Agreement or the Police Services Act. The Association s grievance includes the complaint that, by conducting the operational review and transferring the Grievor, the Police Chief has exercised the Employer s management rights in a manner that is not consistent with the provisions of the Act. This falls within the Employer s contractual obligations under the collective agreement. The Association is therefore entitled to argue that the Police Chief s operational review constitutes a violation of s.68(9) of the Act, and that the violation can be remedied under this grievance, pursuant to the Employer s contractual obligation under Article 5.01 of the collective agreement. 50. This is not to say that any breach of a statutory duty by the Employer will confer jurisdiction on an arbitrator. The Employer s management rights in Article 5.01 are subject to the provisions of the Act. If the Police Chief had invoked the procedures available to him under Part V of the Act, as described, and he erred in
27 some respect, that would not confer jurisdiction on an arbitrator. The procedural defects would properly lie for decision by the Commission and ultimately the Divisional Court because the process would be one that fell squarely within Part V of the Act, over which an arbitrator does not have jurisdiction. 51. But this case is not about the substance of the Grievor s conduct or performance. It about whether the Police Chief acted in accordance with the management s rights Article of the collective agreement when he initiated the operational review in the manner he did. It is also about how the review was conducted and its result. These are issues that fall under Article 5.01 of the collective agreement. Section 126 of the Act is not engaged by them. 52. For these reasons the Association is entitled, through the grievance, to contend that the Board, as represented by the Chief, failed to exercise the functions set out in Article 5.01(a) in a manner consistent with the provisions of [the collective agreement] or [the Act] (Article 5.01(c)), among its other contentions. 53. The re-assignment of the Grievor to the Central Alternative Response Unit is arguably a transfer. Transfers may be done by management, subject to the terms
of Article 5.01 of the collective agreement. The propriety of the transfer is a 28 matter that falls under the management rights Article of the collective agreement. 54. I find therefore that I have jurisdiction to hear the grievance. DATED at TORONTO on August 31, 2009. Christopher J. Albertyn Arbitrator