Abbott v. Collins, 2003 CanLII 46127 (ON CA)

Abbott et al. v. Collins et al. [Indexed as: Abbott v. Collins]

64 O.R. (3d) 789

[2003] O.J. No. 1881

Docket No. C38166

Court of Appeal for Ontario

Morden, Doherty and Feldman JJ.A.

May 15, 2003

*Application for leave to appeal dismissed with costs March 4, 2004 (McLachlin C.J.C., Major and Fish JJ.).

Courts -- Jurisdiction -- Section 26(4) of Public Service Act deeming discipline to be incorporated into collective agreement between OPP [page790] and Crown as management right -- Part V of Police Services Act dealing with handling of complaints against OPP officers -- Police Services Act as supplemented by s. 26(4) of Public Service Act forming complete code governing all discipline for OPP -- Superior Court not having jurisdiction to hear action by OPP officers for damages for actions which allegedly constituted disguised discipline which was designed to circumvent disciplinary procedures -- Police Services Act, R.S.O. 1990, c. P.15 -- Public Service Act, R.S.O. 1990, c. P.47, s. 26(4).

Police -- Discipline -- Section 26(4) of Public Service Act deeming discipline to be incorporated into collective agreement between OPP and Crown as management right -- Part V of Police Services Act dealing with handling of complaints against OPP officers -- Police Services Act as supplemented by s. 26(4) of Public Service Act forming complete code governing all discipline for OPP -- Superior Court not having jurisdiction to hear action by OPP officers for damages for actions which allegedly constituted disguised discipline which was designed to circumvent disciplinary procedures -- Police Services Act, R.S.O. 1990, c. P.15 -- Public Service Act, R.S.O. 1990, c. P.47, s. 26(4).

The plaintiffs were Ontario Provincial Police detectives who were assigned to the Windsor Drug Enforcement Unit. Investigations into the plaintiffs' conduct resulted in their transfer by the defendant senior OPP officers to other duties and alleged retraining in other locations within the province. The plaintiffs alleged that these actions, which appeared to be administrative or operational, amounted to a disguised form of discipline without following the appropriate procedures, for the bad faith purpose of embarrassing the plaintiffs. The plaintiffs brought an action for damages. The defendants moved for an order dismissing the action on the basis that the court had no jurisdiction over its subject matter as the claim in its essence involved the terms and conditions of employment covered by the OPP collective agreement with the Crown. The motions judge dismissed the motion, finding that the essential element of the claim was disciplinary in nature and clearly outside the collective agreement. The defendants appealed.

Held, the appeal should be allowed.

In considering the nature of a dispute in order to determine whether it arises out of the collective agreement, the goal is to determine the essential character of that dispute. This determination must proceed on the basis of the facts surrounding the dispute, and not on the basis of how the legal issues may be framed. The next question is whether the collective agreement contemplates this factual situation. 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.

Part II of the Public Service Act provides for collective bargaining between OPP members and the Crown. Section 26(4) of the Public Service Act defines the matters which are deemed to be included in every collective agreement as the exclusive functions of the employer. These matters include "discipline" and "transfer". The collective agreement in this case defined "grievance" to exclude matters that arise under the Police Services Act and its Code of Conduct. Part V of the Police Services Act deals with the handling of complaints regarding the professional conduct of all OPP officers, including the holding of misconduct hearings, the range of outcomes where misconduct is found, and appeals. It was conceded that the dispute in this case was disciplinary in nature. The provisions of the Police Services Act and Regulations dealing with police discipline matters, as supplemented [page791] by s. 26(4) of the Public Service Act, which deems discipline to be incorporated into the OPP collective agreement as a management right, formed a complete code governing all discipline for the OPP. There was no gap which would give the Superior Court jurisdiction to hear the matter as a civil cause of action, the essential nature of which matter was discipline, including disguised discipline.

Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 189 Sask. R. 23, 183 D.L.R. (4th) 14, 251 N.R. 16, 216 W.A.C. 23, [2000] 4 W.W.R. 149, 50 C.C.E.L. (2d) 1, 2000 C.L.L.C. Â220-027, apld

APPEAL from an order dismissing a motion to dismiss an action.

Other cases referred to Allen v. Hamilton (City), [2001] O.J. No. 596 (QL), [2001] O.T.C. 105 (S.C.J.); Durham Regional Police Services Board and Durham Regional Police Association (Re) (2000), 2000 50095 (ON LA), 95 L.A.C. (4th) 323 (Ont. Arbitrator); Goudie v. Ottawa (City), 2003 SCC 14, 223 D.L.R. (4th) 395, 301 N.R. 201, 2003 C.L.L.C. Â220-028, 30 C.P.C. (5th) 207, [2003] S.C.J. No. 12 (QL); Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601, 216 D.L.R. (4th) 410, 2002 C.L.L.C. Â220-038, 19 C.C.E.L. (3d) 36 (C.A.); Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (QL), 253 N.R. 305 (F.C.A.); Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 181 N.S.R. (2d) 356, 182 D.L.R. (4th) 373, 560 A.P.R. 356, 40 C.P.C. (4th) 1, 6 C.C.E.L. (3d) 215 (C.A.) [Leave to appeal to S.C.C. refused (2000), 262 N.R. 399n, 190 N.S.R. (2d) 200n, 594 A.P.R. 200n], affg (1999), 1999 36345 (NS SC), 181 N.S.R. (2d) 111, 560 A.P.R. 111, 37 C.P.C. (4th) 344 (S.C.); Praskey v. Metropolitan Toronto Police Services Board (1997), 1997 1780 (ON CA), 143 D.L.R. (4th) 298, 26 C.C.E.L. (2d) 251, 97 C.L.L.C. Â220-033 (Ont. C.A.), affg (1994), 95 C.L.L.C. Â210-007 (Ont. Gen. Div.); Saxon v. Fryer (1997), unreported (Ont. Gen. Div.); Vaughan v. Canada (2003), 2003 FCA 76, 224 D.L.R. (4th) 640, [2003] F.C.J. No. 241 (QL) (F.C.A.), affg (2001), 213 F.T.R. 144, 2001 FCT 1233, [2001] F.C.J. No. 1734; Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. Â210-027 Statutes referred to Police Act, 1990, S.S. 1990-91, c. P-15.01 Police Services Act, R.S.O. 1990, c. P.15, ss. 68(1), (5), 70(1), 74 Public Service Act, R.S.O. 1990, c. P.47, s. 26 Rules and regulations referred to O. Reg. 123/98 ("Police Services Act"), Part V "Code of Conduct"

Harry W. McMurtry, for appellants. Craig J. Allen, for respondents. Elaine Atkinson, for intervenor, Attorney General for Ontario.

The judgment of the court was delivered by

1FELDMAN J.A.: -- This case represents another in a number of recent cases arising in the employment context, following the seminal case of Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583, where the issue is where lies the jurisdiction to [page792] hear and determine the claim. I refer to Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 183 D.L.R. (4th) 14; Allen v. Hamilton (City), [2001] O.J. No. 596 (QL), [2001] O.T.C. 105 (S.C.J.); Goudie v. Ottawa (City), 2003 SCC 14, [2003] S.C.J. No. 12 (QL); Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (QL), 253 N.R. 305 (F.C.A.); Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373, 40 C.P.C. (4th) 1 (N.S.C.A.); Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601, 216 D.L.R. (4th) 410 (C.A.); Vaughan v. Canada, 2003 FCA 76, [2003] F.C.J. No. 241 (QL), 224 D.L.R. (4th) 640 (F.C.A.); Re Durham Regional Police Services Board and Durham Regional Police Association (2000), 2000 50095 (ON LA), 95 L.A.C. (4th) 323 (Ont. Arb.).

2In this case, 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.

3The 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.

4For the reasons which follow, I would allow the appeal, set side 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.

Facts

5The underlying "facts" are contained in the only pleading before the court which is the statement of claim. As the appellants neither filed a statement of defence nor any evidence on the motion, for the purposes of jurisdiction, the parties have impliedly agreed on those underlying facts.

6The respondents are OPP detectives who were assigned to the Windsor Drug Enforcement Unit. The appellants are senior officers of the OPP. Investigations into certain conduct of each of the respondents resulted in their transfer by the appellants to other duties and alleged retraining in other locations within the province. The respondents claim that these actions by the [page793] appellants that appeared to be administrative or operational, amounted to a disguised form of discipline without following the appropriate procedures, and for the bad faith purpose of embarrassing the appellants. They claim that the respondents took these actions for the purpose of dislodging the respondents as a working group in Windsor drug enforcement. They knew that the respondents had not done anything that would warrant discipline. Therefore they avoided the discipline process by the improper transfers and job assignments in order to embarrass, harass and intimidate the respondents. The respondents seek compensation damages as well as punitive, aggravated and exemplary damages from the appellants.

7Following delivery of the statement of claim, the appellants moved for an order dismissing the action on the basis that the court has no jurisdiction over its subject matter. The appellants' position was that the claim in its essence involves the terms and conditions of employment covered by the OPP collective agreement with the Crown.

8The motion judge made a brief endorsement dismissing the motion which stated: "[E]ssential element of claim is disciplinary in nature and clearly outside the Collective Agreement."

9On this appeal, the appellants agree that the matter is disciplinary in nature, but take the position that discipline is a matter that is part of the management rights clause which is incorporated into the collective agreement by s. 26 of the Public Service Act, R.S.O. 1990, c. P.47 and therefore any disciplinary complaint must be grieved in accordance with the grievance provisions of the collective agreement.

10The Attorney General for Ontario was granted the right to intervene. The intervenor's position is that if the claim is disciplinary in nature, it is properly dealt with under the Police Services Act which sets out the code for discipline of police officers, or by judicial review of action or inaction under that Act, and not by civil action.

The Statutory Framework and the Memorandum of Understanding

The Public Service Act

11There are two statutes as well as the collective agreement which govern employment matters for OPP members: the Public Service Act, the Police Services Act and the collective agreement, which is titled Memorandum of Understanding.

12Part II of the Public Service Act provides for collective bargaining between OPP members and the Crown. Section 26(3) of [page794] the Act makes the Ontario Provincial Police Association the exclusive bargaining agent for the members of the force of certain named ranks (s. 26(2)) from cadet to sergeants to whom the section applies in respect of collective bargaining. (All of the respondents are of the affected ranks.) The Association and the Crown were parties to the Memorandum of Understanding for the period January 1, 2000 to December 31, 2002 (herein, the "collective agreement").

13Section 26(3) of the Public Service Act provides a non- exclusive definition of the terms and conditions of employment for which the Association can bargain, including: "the procedures applicable to the processing of grievances, the methods of effecting promotions, demotions, transfers, lay- offs or reappointments . . .".

14Section 26(4) defines the matters which are deemed to be included in every collective agreement as the exclusive functions of the employer including "discipline" and "transfer":

26(4) Except in relation to matters governed by or under the Police Services Act, every collective agreement shall be deemed to provide that it is the exclusive function of the employer to manage, which function, without limiting the generality of the foregoing, includes the right to determine employment, appointment, complement, organization, work methods and procedures, kinds and location of equipment, discipline and termination of employment, assignment, classification, job evaluation system, merit system, training and development, appraisal and the principles and standards governing promotion, demotion, transfer, lay-off and reappointment, and that such matters will not be the subject of collective bargaining nor come within the jurisdiction of the Negotiating Committee or an arbitration board.

The Collective Agreement

15The only provisions in the collective agreement specifically dealing with transfer or discipline are article 33 dealing with informal disciplinary procedure, and articles 22 and 23 dealing with notice of transfer and temporary postings.

16The collective agreement contains a grievance procedure, but s. 4.01(c) defines "Grievance" to exclude matters that arise under the Police Services Act and its Code of Conduct:

"Grievance" means a personal complaint of an employee, made in writing, concerning a working condition or term of employment which is applicable to employees covered by this Memorandum of Understanding and which is set out in the Memorandum, the Regulations under the Public Service Act or the Police Services Act, the Manual of Administration, or the Management Board of Cabinet Directives and Guidelines. Matters which arise pursuant to the Police Services Act and the Code of Offences thereunder, other than a working condition or term of employment, shall not be the subject of a grievance under this Memorandum of Understanding.

(Emphasis added) [page795]

The Police Services Act

17Part V of the Police Services Act deals with the handling of complaints regarding the professional conduct of all OPP officers, including supervisors, raised both by members of the public as well as internally by the police service. Part V deals with the making of complaints, the investigation of complaints, the resolution of complaints without a hearing, the holding of a hearing to determine if misconduct has occurred, a range of outcomes where misconduct is found, an appeal to the Ontario Civilian Commission on Police Services (the "police commission" [or the "Commission"]) and a further appeal to the Divisional Court. Section 74 of the Act as well as the Code of Conduct set out in Regulation 123/98 under the Act, define professional misconduct for the purposes of Part V.

The Issue

18Does the Superior Court have jurisdiction to hear and determine the respondents' claims?

Analysis

19The issue and legislative context in this case are very similar to those in the recent Supreme Court of Canada decision in Regina Police Association v. Regina Police Commissioners, 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.

20The court ultimately agreed with the arbitrator that the dispute did not arise out of the collective agreement. However, in order to make that determination, the court was required to examine the legislative scheme which governed the relationship between the parties in order to determine which forum was intended to determine the particular dispute. In that case the dispute was also disciplinary in nature, arising from the forced resignation of a police officer without using the disciplinary procedures set out in the Police Act.

21The Saskatchewan Police Act, 1990, S.S. 1990-91, c. P- 15.01 contained provisions similar, although not identical, to those in the Ontario Police Services Act regarding discipline of officers. The collective agreement grievance procedure also contained a similar exclusion from arbitration for circumstances covered by the Police Act and its regulations. [page796]

22The Supreme Court described the analytical process for determining jurisdiction in paras. 25 and 26 as follows:

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, supra, 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 decision-maker 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, supra, at para. 6.

Before proceeding to an analysis of the ambit of the collective agreement, it is important to recognize that in Weber this Court was asked to choose between arbitration and the courts as the two possible forums for hearing the dispute. In the case at bar, The Police Act and Regulations form an intervening statutory regime which also governs the relationship between the parties. As I have stated above, the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature. The question, therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act and Regulations. If neither the arbitrator, nor the Commission have jurisdiction to hear the dispute, a court would possess residual jurisdiction to resolve the dispute. I agree with Vancise J.A. that the approach described in Weber applies when it is necessary to decide which of the two competing statutory regimes should govern a dispute.

23It is the position of the respondents, relying on this passage from the Supreme Court, that this is a case where neither an arbitrator nor the police commission have jurisdiction and therefore it is a case where the court has the residual jurisdiction to resolve the dispute.

24I do not agree with this submission. In my view the analysis and conclusion reached by the Supreme Court are equally applicable in this case. There the union claimed that the dispute regarded resignation, which fell within the collective agreement. The court analyzed the issue based on the facts, which were agreed, and concluded that the true nature of the dispute regarded discipline. The court then stated at paras. 30-32:

I turn now to the collective agreement to determine whether the dispute falls within the ambit of its provisions. In determining whether the dispute falls [page797] within the ambit of the collective agreement, we must bear in mind that the legislature intended that the members of the Regina Police force be governed by two separate schemes, the collective agreement and The Police Act and Regulations. In determining whether the dispute is arbitrable, we cannot interpret the collective agreement in a manner that would offend the legislative scheme set out in The Police Act and Regulations. The provisions of the collective agreement, therefore, must be interpreted in light of the scheme set out in The Police Act and Regulations. This is recognized in Article 8 of the collective agreement itself, which emphasizes that the collective agreement is not intended to be utilised in any circumstances where the provisions of The Police Act and Regulations apply. . . .

As Vancise J.A. outlined extensively in his dissent, both The Police Act and the Regulations specifically address the procedural issues at the investigative, adjudicative and appeal stages of a disciplinary process. The detailed provisions in the legislative scheme governing disciplinary matters are a clear indication that the legislature intended to provide a complete code within The Police Act and Regulations for the resolution of the disciplinary matters involving members of the police force. This is reflective of a well-founded public policy that police boards shall have the exclusive responsibility for maintaining an efficient police force in the community. The ability to discipline members of the force is integral to this role. Accordingly, no discretion exists to select another legal mechanism, such as arbitration, to proceed against a police officer in respect of a disciplinary matter: see, e.g., Re Proctor and Sarnia Board of Commissioners of Police (1979), 99 D.L.R. (3d) 356 (Ont. C.A.), at p. 371 (per Wilson J.A. in dissent), majority reversed, 1980 48 (SCC), [1980] 2 S.C.R. 727; P. Ceyssens, Legal Aspects of Policing (loose-leaf), at p. 5-2. Generally, when both parties agree that it is appropriate, a resignation is an acceptable means of resolving a disciplinary dispute. However, where a mutually agreed settlement is impossible, both parties to the dispute must resort to the disciplinary procedures provided under the collective agreement and/or the legislation governing their labour relationship. These procedures are meant to be all- inclusive in order to ensure certainty and fairness when the parties cannot reach a negotiated agreement.

Having examined the ambit of the collective agreement, and of The Police Act and Regulations, it is clear that the dispute between Sgt. Shotton and the Employer did not arise, either explicitly or inferentially, from the interpretation, application, administration or violation of the collective agreement. The essential character of the dispute was disciplinary, and the legislature intended for such disputes to fall within the ambit of The Police Act and Regulations. As a result, I agree with Vancise J.A. that the arbitrator did not have jurisdiction to hear and decide this matter.

25In this case, it is clear that this matter, as characterized, is disciplinary in nature. That is effectively conceded on the appeal.

26What may distinguish this case from the Regina Police Association case on the 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, [page798] 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.

27With 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 [Note 1].

28The respondents also argue that because the appellants did not use the procedures under the Police Services Act, there is no remedy for them through the Act to seek redress. In Weber, the court stated that where an arbitrator is not empowered to grant a remedy, the court of inherent jurisdiction may then take jurisdiction. The court had in mind, for example, the imposition of an injunction in labour matters. In any event, Bastarache J. also dealt with a similar argument raised in the Regina Police Association case, that because the police officer was forced to resign, he was not disciplined under the provisions of the Act and therefore [page799] he had no procedural avenue to access the Commission and appeal the decision under the Act.

29Bastarache J. did not accept this argument. He pointed out that the rationale for the exclusive jurisdiction approach articulated in Weber was that violence would be done to the comprehensive statutory scheme contemplated by the legislature by allowing disputes to be heard in a forum that was not the one specified in the legislative scheme. Consequently, the court in Weber held that disputes which arose both expressly as well as those which arose only inferentially out of a collective agreement, had to go to arbitration. Extrapolating from that approach, Bastarache J. concluded that the legislature had provided a comprehensive scheme regarding discipline within the Police Act and Regulations, which included the investigation and adjudication of discipline matters, and that formalistic interpretations of the Act must be avoided if they would deny the Commission jurisdiction in such cases. As a result, although the chief of police did not follow the correct procedure in disciplining the police officer, the officer's constructive dismissal could be appealed to the police commission. Bastarache J. went on to note that the Commission would have the jurisdiction to determine its own jurisdiction in the case, although he stated that it did have jurisdiction in that case.

30A similar analysis applies in this case. Section 70(1) of the Police Services Act allows a police officer to appeal to the Commission after receiving notice of the decision made by the chief of police after a hearing. In this case there was no hearing and no notice. However, giving the Act a liberal interpretation, although the procedure of the Act was not followed, the Commission is not deprived of jurisdiction and an appeal would lie to the Commission. Again, it would be for the Commission to decide its own jurisdiction on the evidence placed before it.

31Finally, the respondents submit that under s. 68(1) and (5) of the Police Services Act, transfer is not one of the consequences that can be imposed by the chief of police as a disciplinary measure and, therefore, the disguised discipline complained of is outside the scope of the Act. There are two responses to this submission. The first is that s. 68(5) includes a direction that an officer undergo specified training or participate in a specified program or activity. Applying a liberal interpretation of these provisions, they can be viewed as encompassing what occurred in this case, where the respondents were temporarily reassigned to other duties and told that they were going to be given further training. [page800]

32Second, a similar argument was made in the Regina Police Association case, that constructive dismissal was not one of the consequences that could be imposed as discipline under the Police Act, and therefore there was no recourse under the Act. Bastarache J. dealt with the issue, applying his admonition that formalistic interpretations must be avoided, stating that "even if the Police Act and Regulations do not expressly provide for the type of disciplinary action that was taken in the case at bar, the action may still arise inferentially from the disciplinary scheme which the legislature has provided" (para. 35).

Conclusion

33The provisions of the Police Services Act and Regulations dealing with police discipline matters, and supplemented by s. 26(4) of the Public Service Act which deems discipline to be incorporated into the OPP collective agreement as a management right, form a complete code governing all discipline for the OPP. There is no gap which would give the Superior Court jurisdiction to hear the matter as a civil cause of action, the essential nature of which matter is discipline including disguised discipline.

34I would therefore allow the appeal with costs, set aside the order of the motion judge and dismiss the action with costs. If the parties cannot agree on costs, the appellants may provide a bill of costs [within] seven days and the respondents may make any submission on the bill of costs within five days thereafter. All submissions are to be addressed to the Chief Legal Officer of the Court of Appeal.

Appeal allowed.

Notes

Note 1: The respondents rely on two Ontario cases, Praskey v. Metropolitan Toronto Police Services Board (1997), 1997 1780 (ON CA), 26 C.C.E.L. (2d) 251, 143 D.L.R. (4th) 298 (C.A.) and Saxon v. Fryer (1997), unreported (Ont. Gen. Div.), which effectively held that because the Police Services Act and Regulations set out a complete disiplinary scheme for police officers, discipline matters are outside the collective agreement, and therefore the collective agreement does not oust the jurisdiction of teh court over such a matter. Those courts did not have the benefit of the Supreme Court analysis in the Regina Police Association case and of the conclusion in that case.