ONTARIO POLICE COMMISSION
REASONS FOR DECISION
CITY OF BRANTFORD POLICE ASSOCIATION Applicant
BOARD OF COMMISSIONERS OF POLICE FOR THE CITY OF BRANTFORD Respondent
IN THE MATTER OF an application with respect to the status of certain members of the Senior Officers Association pursuant to Section 23(2) of the Police Act.
Presiding Members: W.D. Drinkwalter, Q.C., Chairman Frank Marc D'Andrea, Member
Appearances: Cliff Bingleman, President of the Association David Pass, Chairman of the Bargaining Committee of the Association Mark Ireland, Secretary of the Association Christopher White, Solicitor for the Board Chief Alvin Barber Staff Inspector Pickering for the Senior Officers Association
Hearing Date: Friday, March 30, l990
This application was brought by the Police Association for the City of Brantford. Initially the Association challenged the status of three commissioned officers and six civilians. The application was abandoned with respect to the commissioned officers. At the opening of the hearing the Association abandoned their application with respect to the Director of Administration and the Secretary to the Chief of Police.
The hearing proceeded with respect to the status of the following:
Mr. Ron Adie, Director of Planning and Research Mrs. S. Rigglesford, Secretary to the Deputy Chief Mrs. O. Todd, Supervisor of Central Records Mrs. M. Usher, Assistant Director of Administration
At the opening of the hearing Mr. Bingleman indicated that the Association did not have job descriptions of the individuals in question; neither were they able to describe the functions of these people.
Mr. White filed brief and recently prepared job descriptions with respect to the four positions in issue. He also filed the job description of the Director of Administration, the person to whom Mrs. Usher reports.
The definition of "senior officer" is found in Section 30(l) of the Police Act and is as follows:
"30(l) In this Section, "senior officer" means a member of a police force of the rank of inspector or higher or a civilian employee employed in a supervisory or confidential capacity, but does not include a chief of police or deputy chief of police."
Mr. Adie, the Director of Planning and Research, operates substantially without staff. His function relates to research and analysis with respect to policing issues and the preparation of plans for the Board and the Chief.
Mrs. Rigglesford is Secretary to the Deputy Chief of Police. The organization of the Force is such that the Deputy Chief is responsible for all internal disciplinary matters. She also replaces the Chief's Secretary when she is on vacation. When the Chief is absent the Deputy Chief acts in that capacity.
Mrs. Todd, Supervisor of Central Records, is responsible for 22 clerks in her department and performs the normal management functions with respect to hiring, firing, discipline, grievances, work schedules, etc.
Mrs. Usher, the Assistant to the Director of Administration, works very closely with the Director of Administration and accordingly is privy to all matters relating to grievances, etc. labour relations including discipline,
With respect to Section 30 of the Act the Board relies upon the words "confidential capacity" with respect to all of these persons except Mrs. Todd, the Supervisor of Central Records. In her case the Board relies upon the words "employed in a supervisory ... capacity".
In challenging the status of these persons the Association compared the supervisory functions of Mrs. Todd with the functions of a Sergeant or a Staff Sergeant. With respect to the confidentiality the Association makes reference to the oath of secrecy.
The Association also referred to the fact that the Senior Officers Association in the Hamilton-Wentworth Regional Police Force has only one civilian member and that the London Police Force either has no Senior Officers Association or, if it has one, there are no civilian members. We are unclear as to whether Mr. Bingleman told us that there was no Association or that there was no civilian member of such an Association. In any case, we were not presented with the organization of those forces or any suggestion of the reasons for the lack of civilian members in the Senior Officers Association. The creation of such an Association is voluntary and membership in such an Association is voluntary.
Definition of Senior Officer:
Section 30(l), previously referred to, provides that a senior officer is a police officer of commissioned rank or a civilian employed in a supervisory or confidential capacity.
Confidentiality:
Since all members of the police service are employed in a confidential capacity with respect to the public the word "confidential" as used in Section 30 of the Act must surely refer to matters which are confidential within the police force. Otherwise the word would be meaningless as a definition of a "senior officer".
Supervisory Capacity:
Mr. Bingleman compares the supervisory functions of a civilian position with the supervisory functions of a sergeant or staff sergeant. These officers are not "senior officers" within the meaning of the definition. The section contains two definitions of "senior officers". The first refers to police officers and with respect to these people a "senior officer" is one of the rank of inspector or higher. With respect to civilians there is a different test. The test with respect to civilians is based upon the function performed by the individual. If those two tests are to be read conjunctively then it is appropriate to relate the functions of civilians to the functions of police officers. If those definitions are to be read disjunctively then such comparisons are not helpful.
We are satisfied that the legislators intended that there be two quite different and quite distinct officer''. test is a definitions of what constitutes a ''senior Accordingly, with respect to civilians, the management test which may be comparable to systems in the private sector but is not comparable to systems which depend upon a rank structure.
Accordingly we examine the question of "supervisory ... capacity" without reference to the functions of police officers of any rank.
Mr. Adie, Director of Planning and Research, very clearly acts in a confidential capacity and is accordingly a "senior officer".
Mrs. Todd, Supervisor, Records and Communications, very clearly acts in a supervisory capacity and is accordingly a "senior officer".
With respect to Mrs. Rigglesford, Secretary to the Deputy Chief of Police, and Mrs. Usher, Assistant to the Director of Administration, the information put before us is not sufficient to permit us to make a determination with any degree of satisfaction. Based upon the information put before us we are unable to determine the issue.
The Character of the Proceeding:
The above leads us to the question whether this proceeding is an inquiry or a hearing. If it be an inquiry then the Commission has an obligation to do its own investigation and gather its own information in order to determine the issue. If this proceeding can be characterized as a hearing, on the other hand, it is our function to consider only the information put before us by the parties.
Section 23(2) of the Police Act is the section which gives the Commission jurisdiction in this respect. The operative words of that subsection are " ... the Commission shall, upon the application of any person affected and after a hearing, determine the question, ...". We note that the Commission's authority, or jurisdiction, is triggered by an application. Without an application we are without jurisdiction. The section requires that we determine the question "after a hearing". We are satisfied that the legislators intended not only that this jurisdiction be triggered only by an application by some person affected but that when triggered it is our obligation to determine the issue as between the parties. Accordingly we conclude that this proceeding is in the nature of a hearing.
We find that Adie and Todd are senior officers. With respect to Rigglesford and Usher we are unable to make a determination but since he who alleges must prove we find that the applicant has failed to satisfy us that they are not senior officers and accordingly dismiss the application as it relates to these two persons.
Before the hearing concluded Mr. White applied for an adjournment in order to call evidence. Mr. Bingleman on behalf of the Association opposed that application and we refused to adjourn the matter.
For the above reasons the application is dismissed.
DATED THIS DAY OF APRIL, 1990.
per W.D. Drinkwalter, Q.C., Chairman