ST Hamilton-Wentworth 1983
s.23 (2) Status Hearing/Hamilton-Wentworth/Senior Off.
Re: Hamilton-Wentworth Regional Board of Commission (D. Buist)
S. MacGrath, Chairman J.P. MacBeth, Q. C., Vice – Chairman January 14, 1973
Appearances: L. Pinelli for the Appellant B. Chercover for the Police Association
Whether chief clerk, D. Buist is senior officer – Labour Relations Act, R.S.O. 1980, c.228 not applicable to members of police force. Confidential capacity – applicant participated in in camera Board meetings concerning confidential budget and salary information – possible conflict of interest as applicant participated in Association meetings concerning salary discussions – Associations could not, therefore, fairly represent the applicant.
This proceeding arose as an application by the Board pursuant to s.23 (2) of The Police Act, R.S.O. 1980, c.381, to have the status of Chief Clerk D. Buist determined as a senior officer as defined in s. 30(1) of the Act.
Authorities
Statuses referred to: Labour Relations Act, R.S.O.1980 c. 228, s.2 (b); Police Act, R.S.O. 1980, c.381, s.30 (1).
Reasons:
This is an application by The Hamilton-Wentworth Regional Board of Commissioners of Police to have the status of Chief Clerk Dan Buist, a civilian member of the force determined as a senior officer.
The application was opposed by The Hamilton-Wentworth Regional Police Association on a number of grounds and particularly on the ground that the position of Chief Clerk is a position within the bargaining unit as evidenced by the reference to it in Schedule “A” of exhibits 9 and 10 being copies of the 1980 and 1981/82 respectively Agreements for Civilian Police Personnel between the force and the Association.
Counsel for the Association contended that any change in the nature of the position was a matter for contract negotiation and was subject to article 14 of the said agreements.
In the support of this position, counsel referred us to a number of Decisions as to the practice developed under the Labour Relations Act, R.S.O. 1980, c.228.
Although such comparisons may under certain situations have some relevance as guidelines we believe them to be inapplicable to the present facts.
Section 2(b) of the Labour Relations Act explicitly exempts that Act from applying “to a member of a police force within the meaning of the Police Act” and section 23(2) of the Police Act places the responsibility for the determination of whether or not any person is a member or senior officer of a police force upon this Commission. The application may commenced by “ any person affected”.
It was also contended that the position of Chief Clerk , although it might involve the necessity of knowing confidential information, did not come within the meaning “confidential capacity” as set out in section 30(1) of the Police Act.
The evidence showed that the Chief Clerk not only had certain confidential information concerning budget particulars and salary negotiations but attended and took part in in camera meetings of the Commission when budget policy and salary negotiation strategy were being considered.
If Mr. Buist should have attended a meeting of the Association when matters of salary were under discussion we believe that the Board of Commissioners would have had valid grounds for concern. We therefore do not see that Mr. Buist could be fairly represented by the Association.
The Commission is satisfied on the evidence presented that the Chief Clerk’s position is one of a “confidential capacity” and find that Dan Buist’s position warrants his inclusion in the “senior officer “ definition.
The Ontario Police Commission
Citation: 1983 ONCPC 2301
IN THE MATTER OF The Police Act, R.S.O., 1980, c.381, and amendments thereto and Regulations thereunder,
- and –
IN THE MATTER OF an Application by the Hamilton-Wentworth Regional Board of Commissioners of Police to determine the status of Dan Buist , Chief Clerk, on the said Force.
Before: Shaun MacGarth, Esq., Chairman John P. MacBeth, Esq., Q.C., Vice-Chairman
Appearances: L. Pinelli, Esq., Counsel for the Applicant Barrie Chercover, Esq., Counsel for the Hamilton-Wentworth Police Association
Held: Friday, 14th of January, 1983
- Decision -
This is an application by The Hamilton-Wentworth Regional Board of Commissioners of Police to have the status of Chief Clerk, Dan Buist a civilian member of the force determined as a senior officer.
This application was opposed by the Hamilton-Wentworth Regional Police Association on a number of grounds and particularly on the fact that the position of the Chief Clerk was and remained a position within the bargaining unit as evidenced by the reference to it in Schedule “A” OF exhibits 9 and 10 being copies of the 1980 and 1981/82 respectively Agreements for Civilian Police Personnel between the Force and the Association.
Counsel for the Association contended that any change in the nature of the position was a matter for contract negotiation and subject to Article 14 of the said Agreements.
In support of this position counsel referred us to a number of decisions as to the practice developed under the Labour Relations Act, R.S.O., 1980 , Chapter 228.
Although such comparisons may under certain situations have some relevance as guidelines we believe them inapplicable to the present facts.
Section 2 (b) of the Labour Relations Act explicitly exempts that act from applying “to a member of a police force within the meaning of the Police Act” and Section 23(2) of the Police Act places the responsibility for the determination of whether or not any person is a member or senior officer of a police force upon this Commission. The application maybe commenced by “any person affected”.
It was also contended that the position of the Chief Clerk although it might involve the necessity of knowing confidential information did not come within the meaning of “confidential capacity” as set out in Section 30(1) of the Police Act.
The evidence showed that the Chief Clerk not only had certain confidential information concerning budget particulars and salary negotiations but attended and took part in “in camera” meetings of the Commission when budget policy and salary negotiation strategy were being considered and debated.
If Mr. Buist should attended a meeting of the Association when matters of salary were under discussion we believe that the Board of Commissioners would have valid grounds of concern. We therefore do not see that Mr. Buist could be fairly represented by the Association.
The Commission is satisfied on the evidence presented that the Chief Clerk’s position is one of a “confidential capacity” and find that Dan Buist’s position warrants his inclusion in the “Senior Officer” definition.
The application is therefore granted.
Dated at the City of Toronto, in the Municipality of Metropolitan Toronto, this 31st day of January , A.D., 1983