Gordon MacPherson v. Board of Commissioner of Police for the City of Ottawa, 1984 CanLII 3105

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF Ontario Regulation 791, R.R.O. 1980 made under The Police Act, R.S.O. 1980, c.381 and amendments thereto;

AND IN THE MATTER OF an appeal to the Ontario Police

Commission by GORDON MacPHERSON.

DECISION

Panel: John P. MacBeth, Q.C., Vice-Chairman

W. T. McGrenere, Q.C., Member

Hearing Date: September 5, 1984

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Before:

John P. MacBeth, Q.C., Vice-Chairman

W. T. McGrenere, Q.C., Member

Appearances:

Emilio S. Binavince, Counsel for the Appellant

and Robert Richards

John Murray, Counsel for the Respondent

Hearing: September 5, 1984

1. This is an appeal from a decision of the Board of Commissioner of Police for the City of Ottawa dated March 20, 1984, wherein the Board terminated the employment of Constable Gordon MacPherson pursuant to s.27(3) of Ontario Regulation 791, on the grounds that he was incapable of performing his duties in a manner fitted to satisfy the requirements of his position as a result of a physical disability.

2. Constable MacPherson was a member of the Ottawa Police Force for a period of nine years. Throughout the period of his employment, the Appellant performed his duties capably and satisfactorily.

3. On June 2, 1982, the Appellant, while in the course of his duties, was assaulted and sustained injuries to his face, stomach and left leg. He developed a deep-vein thrombosis where he had been kicked in the leg and it was discovered, during the course of treatment, that he had a condition known as anti-thrombin 3 deficiency. This is an inherited and congenital disorder that persists throughout the life of an individual. The deficiency made the Appellant's blood much more susceptible to clotting than normally would be the case. It was recommended by the doctors treating the Appellant that he take an anti-coagulant drug and that he remain on this medication indefinitely. The physicians' evidence clearly indicated that the Appellant was susceptible to a significant increase in the risk of hemorrhage while he remained on the medication.

4. Drs. William T. Depew and William J. Westwick, in reports filed before the Board, indicated that the Appellant ought not t return to any sort of work which exposes him on a routine basis to threat of trauma. Dr. Sam Krane, the Appellant's own physician, indicated that "he is unable to resume an active role in a job position that may predispose him to trauma." It was on the basis of the evidence of these doctors that the Board concluded that the Appellant was incapable of performing his duties in a manner fitted to satisfy the requirements of his position.

Preliminary Motion

5. The Appellant brought an application at the outset of the hearing of this appeal for permission to file further documentary evidence and to call three further witnesses.

6. The document sought to be filed was a report of Dr. Taylor dated February 21, 1983 which counsel for the Appellant candidly admitted did not contradict the evidence of the other doctors, but rather "neutralized same." No explanation was forthcoming as to why this medical report, which was addressed to the Appellant's former counsel, was not tendered in evidence at the hearing before the Board.

The Appellant sought leave to call the following three witnesses:

1. Mr. Boecker - this gentleman is a retired

officer from the Hamilton-Wentworth Force

who allegedly suffered from the same condition

as the Appellant and had taken Coumadin

for some period.

2. Detective Callaghan - this officer is with

the Ottawa Police Force and allegedly suffers

from the same medical condition and is apparently

on the anti-coagulant drug.

3. Superintendent D. Lyon - this officer was

subpoenaed and asked to bring with him the

files of eight officers of the Ottawa Force

who allegedly suffer from some physical disability

but are nevertheless enjoying employment

as officers with the Force

7. It was submitted by counsel for the Appellant that the Commission had authority to admit new evidence pursuant to s.!5(l) of The Statutory Powers Procedure Act, which reads as follows:

"15(1). Subject to subsections (2) and (3), a

tribunal may admit as evidence at a hearing,

whether or not given or proven under oath or

affirmation or admissible as evidence in a

court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject matter of the proceedings

and may act on such evidence, but the

tribunal may exclude anything unduly repetitious."

Counsel for the Respondent submitted that s.15 was limited by sub-section (3) which reads:

'15(3). Nothing in subsection (1) overrides

the provisions of any Act expressly limiting

the extent to or purposes for which any oral

testimony, documents or things may be admitted or used in evidence in any proceedings."

8. It was suggested that the Commission's jurisdiction is strictly appellate in nature and that the only authority to permit the Commission to hear evidence was found in s.24(6) of Regulation 791, which reads:

"24(6). The Commission shall decide the

appeal from the record but may, in special

circumstances, hear such evidence as the

Commission considers advisable."

9. This proposition was supported by the Divisional Court's decision in Re Cardinal and Board of Commissioners of Police of City of Cornwall (1974), 1973 CanLII 714 (ON HCJDC), 2 O.R. (2d) 183.

10. It was further suggested that the Commission was bound by the guidelines set out in the Court of Appeal decision of Mercer v. Sijan (1977), 1976 CanLII 654 (ON CA), 14 O.R. (2d) 12. The Court stated that before an appeal tribunal exercises its discretion to receive evidence, three conditions must be satisfied:

(a) that the evidence was not discoverable

before the end of trial by reasonable

diligence;

(b) that the evidence is wholly credible;

(c) that the evidence must be practically

conclusive of an issue in the action.

11. We are satisfied that all of the evidence sought to be relied upon by the Appellant was available prior to the hearing before the Board of Police Commissioners on March 19, 1984. We had considerable doubt as to the qualifications of the witnesses to give the evidence which the Appellant's counsel intended to elicit from them. We were not satisfied that the evidence intended to be led by the Appellant's counsel would be conclusive of the issue under appeal.

12. The application for leave to file further documentary evidence and call viva voce evidence was therefore dismissed.

The main thrust of the Appellant's position was threefold:

1. the evidence before the Board fell far short

of disclosing what duties this particular

officer was required to perform and thus the

doctors were not in a position to comment on

the Appellant's inability to perform such

duties;

2. the medical evidence did not demonstrate that

the Appellant was incapable of doing any of

his duties;

3. the Board's decision offends the Ontario Human

Rights Code.

13. In support of the Appellant's first submission, it was simply contended that no evidence of what an officer was expected or required to do, was related in the doctors' medical reports. There is no reference in these reports which would indicate that the doctors understood what duties they were suggesting the Appellant would be incapable of performing.

14. In support of the Appellant's second submission, it was contended that the Board failed to make the necessary distinction between an officer's incapacity to perform his normal duties and an officer's incapacity to withstand an injury suffered in the course of performing his duties. It was contended that the medical evidence made no mention of the officer's inability to perform any function, but simply stated that the officer was at greater risk than an officer who did not suffer from the same deficiency. The Appellant has always suffered from the anti-thrombin 3 deficiency, a congenital disorder. The Coumadin medication merely reduces the Appellant's capacity to survive an injury suffered in the performance of his duties. It does not, and has not been shown, to affect the actual performance of those duties. It was were minimal in that the officer had performed his duties withoutincident for approximately eight years.

15. It was further suggested that the waiver signed by the Appellant and his wife afforded the Board any protection from recourse that was necessary.

16. In support of the Appellant's third submission, it was submitted that the Respondent Board offended the Ontario Human Rights Code by discharging the Appellant and s.4(l) of the Code was relied upon. It states as follows:

"4(1). Every person has a right to equal

discrimination because of race, ancestry,

place of origin, colour, ethnic origin, citizenship,

creed, sex, age, record of offences,

marital status, family status or handicap."

17. It was submitted on behalf of the Respondent that the broad duties of an officer are clearly set out in s. 57 of The Police Act and that the Appellant took an oath to perform such duties. It was put in evidence that since 1977, the Ottawa Force has no category of assignment to "light duty." Section 57 reads as follows:

"57. The members of police forces appointed

under Part II, except assistants and civilian

employees, are charged with the duty of preserving

the peace, preventing robberies and

other crimes and offences, including offences

against the by-laws of the municipality, and

apprehending offenders, and commencing proceedings

before the proper tribunal, and prosecuting

and aiding in the prosecuting of offenders,

and have generally all the powers

and privileges and are liable to all the

duties and responsibilities that belong to

constables."

18. The Respondent submitted that the Board had a responsibility not only to ensure that an officer is not unduly exposed to risk of harm, but also to ensure that such officer is not a risk to fellow officers, the public or property. It was urged that the medical evidence was more than satisfactory for supporting the findings of the Board under s.27(e) of Regulation 791.

19. It was further contended that the Commission had no jurisdiction to deal with any alleged breach of the Ontario Human Rights Code.

Decision

20. Insofar as the submission relating to the alleged breach of the Ontario Human Rights Code is concerned, we are of the view that it is not the purpose of this Commission to deal with such matters.

21. The medical reports of Drs. Depew, Westwick and Krane were annexed to the Board's decision and the following quotes from two of those reports were specifically referred to in the decision:

Dr. Depew, April 13, 1983:

"In Mr. MacPherson's case, I think it is

completely unreasonable to return this

man to any sort of work which exposes

him, on a routine basis, to the threat

of important trauma. A gunshot wound,

stab wound, or blunt trauma to the head

which might be sustained reasonably well

under normal circumstances could result

in a fatal episode of hemorrhage in Mr.

MacPherson's case as long as he remains

on Coumadin."

Dr. Westwick, February 7, 1983:

"The risks to this constable in suffering

serious bleeding disorders following any

form of trauma to his body are extremely

high as long as he is on anticoagulants

and therefore considering the duties of

an active police officer I must reluctantly

recommend that he be placed on long term

disability as he is not fit to return to

work as an active police officer."

22. Dr. Krane, the Appellant's own physician, in a report dated

March 14, 1984, stated:

"As a result of his antithrombin III deficiency

he is unable to resume an active

role in a job position that may predispose

him to trauma. This in essence is the only

logical employment restriction in my mind

and I would encourage him to seek other

forms of employment in the area of his

expertise."

23. Other medical information that was before the Board included:

Kingston General Hospital records

report of Dr. Depew to Dr. Mullins dated August 16,

report of Dr. Depew to Dr. Mullan dated September

17, 1982

report of Dr. Giles to Dr. Taylor dated September

27. 1982

report of Dr. Taylor to Dr. Giles dated September

28. 1982

report of Dr. Westwick to Superintendent Lyons

dated September 30, 1982

letter from Dr. Taylor to Sergeant Boothe dated

January 24, 1983 enclosing Ottawa Civic Hospital

Records

24. The above medical information clearly indicates the seriousness of the Appellant's condition. That the officer has a disability is not contested and indeed, the Workers' Compensation Board has awarded the Appellant a 20% permanent disability pension

25. It is common ground that the Force has offered the Appellant an administrative position, but in a civilian capacity. It was further made clear by counsel for the Appellant that the Appellant was not seeking a light-duty job, but wanted to return to the Force as a first class constable, prepared to do regular duties regardless of the risks.

26. A number of cases were referred to and while most were Labour Arbitration Cases which are not entirely applicable because of the nature of a police officer's status, they are nevertheless instructive on some of the points in issue. The rights and duties of an employer in circumstances not dissimilar to those in issue here are referred to in Re Niagara Regional Board of Commissioners of Police and Niagara Regional Police Association (1975), 1975 CanLII 2184 (ON LA), 9 L.A.C (2d) 272, at 273:

"It has long been established in arbitrations

in the private sector that an employer may set,

as a qualification for continued employment,

the condition that an employee be physically

fit for the task which he is to undertake,

and indeed, that in an appropriate case, an

employer may discharge an employee who has

ceased to meet this qualification of fitness

for employment: see Re U.A.W. Local 525, and Studebaker-Packard of Canada Ltd. (1960),

11 L.A.C. 139 (Cross); Re Lindsay Printing

Specialties Union, Local 512, and Union

Carbide Canada Ltd. (1961), 12 L.A.C. 159

(Cross); Re U.S.W., Local 6500, and Int'1

Nickel Co. of Canada Ltd. (1965), 16 L.A.C.

277 (Hanrahan); Re Martindale Sash & Door

Ltd. and United Brotherhood of Carpenters

& Joiners of America, Local 802 (1972), 1

L.A.C. (2d) 324 (Fox); and Re Motor Transport

Industrial Relations Bureau of Ontario and

Teamsters Union, Local 141 (1973), 3 L.A.C.

(2d) 275 (Palmer). In the last-mentioned

of these cases, it was made particularly

clear that where the safety of the public

is involved in any way or where there is a

possibility of danger to the employee or to

his fellow employees, the employer must of

necessity be able to reserve the right to

discharge an employee. The importance of

this principle seems to have been recognized

by the Lieutenant-Governor in Council by the

inclusion in the general regulations affecting

police employment in Ontario of s.27(e)

of Reg. 680, which permits Boards of Commissioners

of Police to dispense with the

services of police officers who 'due to

mental or physical disability' are incapable

of performing police duties satisfactorily."

27. We are 'of the view that s. 57 of The Police Act establishes tne duties of a police officer in sufficient detail to support the conclusions of the doctors and the Board. It may well be argued that doctors, like other citizens, are deemed to know the law and thus should know the duties of a police officer, but that apart, a simple common-sense perspective would satisfy the doctors as to the duties of a constable and the inherent risks associated with such duties.

28. As expressed by counsel for the Respondent, it may be a "noble sentiment" that the Appellant is prepared to undertake the risks feared by the doctors, but that does not mean that the Board can condone such assumption of risk. The Board, by condoning the Appellant's assumption of risk, leaves itself open to not only the criticism of permitting the officer's conduct, but to the potential breach of its financial responsibility. The Board could properly be criticized for exposing fellow officers and the public to greaterrisk in the event that the Appellant suffered injury, by way of example a brain hemorrhage, while on duty.

29. We are satisfied that the Board acted properly in terminating the Appellant's employment based upon the medical evidence before it. In this instance, the governing portion of s.27(e) is the underlined words "incapable of performing his duties in a manner fitted to satisfy the requirements of his position..." It is our view that these words connote an understanding that not only should the officer be capable of performing his duties, but that he should not knowingly be exposed to more risk of grievous harm than is reasonably necessary. It would seem contrary to public policy that a person with a so-called "thin skull" be knowingly exposed to, or permitted to assume, the inherent risk of policing.

30. We agree with the sentiments expressed in the Board's decision, "The Board recognizes his sincere desire to remain a part of the uniform Force. His medical condition makes this impossible. But recognizing his past services and his desire to be associated with police work, the Board is prepared to offer to Constable MacPherson a civilian position within the Police Station at Level 2, which commands a salary of approximately $22,000.00."

The appeal is therefore dismissed.

DATED at Toronto this 11th day of October , 1984

John P. MacBeth, Q.C., Vice-Chairman

W. T. McGrenere, Q.C., Member