ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF The POLICE SERVICES ACT, R.S.O. 1990, c. P.15, as amended
BETWEEN:
JOHN McLANE Appellant
-and-
BOARD OF COMMISSIONERS OF POLICE FOR DURHAM REGION Respondent
DECISION
Panel: W.D. Drinkwalter, Q.C., Chairman G. Normand Claude, Member
Hearing Date: Toronto, Thursday, February 1, 1990 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
Presiding Members: W.D. Drinkwalter, Q.C., Chairman G. Normand Claude, Member
Appearances: James M. Flaherty, Solicitor for the Appellant David J.D. Sims, Solicitor for the Board
Hearing Date: Toronto, Thursday, February 1, 1990
1This is an appeal by John McLane from a decision of the Durham Regional Board of Commissioners of Police dated November 9th, 1989 pursuant to which he was discharged from his position as a First Class Constable with the Durham Regional Police Force. The hearing was conducted pursuant to Section 27(e) of Regulation 791 made pursuant to the Police Act.
2Because of our disposition of this appeal it is unnecessary to deal with the facts at any length. Suffice it to say that Constable McLane, who joined the police service in 1969, suffered a series of injuries to his jaw which make it highly probable that in the event that he should sustain another blow to the jaw he would be permanently and seriously disabled. In addition to the physical injury Mr. McLane suffers from fear and anxiety arising from the possibility of further injury.
Section 27 (e) of Regulation 791 provides that a Board may "discharge or place on retirement, if he is entitled thereto, any member of the Force who, on the evidence of two legally qualified medical practitioners is, due to mental or physical disability, incapable of performing his duties in a manner fitted to satisfy the requirements of his position".
3The Board's decision to discharge Constable McLane was expressed in these words: "The Board concludes on the basis of the evidence that Constable McLane has not in the past demonstrated the requisite ability to deal calmly and rationally with stressful situations and that he is not psychologically fit to discharge properly the duties of a police officer." In the next Paragraph the Board said "The Board is not prepared to run the risk that Constable McLane will overreact or that he will respond in an irrational manner to a hostile situation."
4Pursuant to Section 27(e) of the Regulation the Board may discharge an officer for "mental or physical disability". From reading the reasons of the Board it is clear to us that they made their decision based upon a mental disability and not upon the physical disability from which Constable McLane suffers. The section requires that such a decision be based "on the evidence of two legally qualified medical practitioners . . .". The medical evidence was presented by way of two written reports.
5The medical witnesses were not called to testify; Dr. Harvey C. Stancer, a Professor of Psychiatry at the University of Toronto gave it as his opinion that "Mr.McLane's psychological state is within normal limits." With respect to Mr. McLane' s fear Dr. Stancer said "I believe it is fair to say that most normal individuals would feel frightened of going back into a setting where they might have the chance of being hurt after so much previous trauma." The other medical witness was Dr. J.T.S. Brown, Medical Director, Industrial Health Services. Dr. Brown described Constable McLane's fear and anxiety and said that "his fear is justified and not phobic". He gave it as his opinion that Mr. McLane "cannot be relied upon to function calmly and efficiently under pressured and hostile conditions due to his fear and anxiety."
6As we read Section 27 (e) it requires that the conclusion of the Board be supported by the evidence of two legally qualified medical practitioners. The decision appealed from is not so supported.
7For the above reasons we have no alternative but to quash the decision and order that the appellant be reinstated as a First Class Constable.
8While the above is sufficient to dispose of this appeal we want, before leaving the issue, to comment briefly on the current operation of Section 27 (e) of the Regulation.
9Since 1986 this Section has been subject to, and must be interpreted in light of, the Human Rights Code. With respect to incapacity, Section 16(la) of the Code provides that "the commission, a board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship ...".
10In our view the above noted Section of the Human Rights Code places an onus on a police force that would discharge a police officer because of inability. That onus is to establish on clear and convincing evidence that reasonable efforts have been made to accommodate the incapacity but that such accommodation cannot be made without "undue hardship".
11Assuming, but without finding, that Mr. McLane's physical disability is captured by Section 27 (e) of the Regulation he still cannot be discharged unless the Force can meet the onus cast by the Human Rights Code as discussed above.
DATED THIS 1st DAY OF FEBRUARY, 1990
per
W.D. Drinkwalter, Q.C., Chairman