Citation: 1991 ONCPC 3901
ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
REASONS FOR DECISION
VANIER POLICE SERVICES BOARD CITY OF VANIER
Applicant
OTTAWA POLICE SERVICES BOARD CITY OF OTTAWA
Respondent
Presiding Members:
W.D. Drinkwalter, Q.C., Chairman
Raymond G. Leclair, Member
Appearances:
Paul Lalonde, Chair, Vanier Police Services Board
Gisele Lalonde, Mayor, City of Vanier
Denise Leroux, Member, Vanier Police Services Board
Daniel Ouimet, Chief Administrative Officer, Vanier
Douglas Wallace, Solicitor for the City of Ottawa
Vincent Westwick, Solicitor for the Ottawa
Police Services Board Deputy Chief Brian Ford Superintendent Brian Skinner
Hearing Date: Tuesday, November 5, 1991
Background:
In 1984 Vanier and Ottawa negotiated an agreement pursuant to which policing in the City of Vanier would be provided by the City of Ottawa and that Vanier would pay the City of Ottawa in accordance with a formula established in the agreement. Accordingly the Vanier Police Force was abolished as of January 1,
The cost sharing formula provides for the establishment of a cost figure for the combined cities of Vanier and Ottawa. The share to be paid by Vanier
is computed in accordance with a formula which takes into account the tax base of each municipality and the population of each municipality.
As of January 1, 1990 the cost of providing security in connection with court proceedings was imposed on certain Police Services Boards by the Police and Sheriffs Statute Law Amendment Act. Prior to the passing of this legislation police forces had provided security only with respect to their own prisoners when attending court. Security with respect to the building, judges, participants, etc. had been provided by the Sheriff. The imposition of these new costs was totally unforeseen at the time the agreement was negotiated.
The Application:
By this application the Vanier Board is asking the Commission to rule that the costs involved in providing security with respect to court proceedings ought not to be included in the cost base used to determine the costs imposed on the City of Vanier by the aforesaid agreement. The second branch of the application is for an order that the City of Ottawa repay to the City of Vanier monies paid in the past on account of the inclusion of "court security costs" in the calculation.
The people in Vanier are extremely frustrated by the fact that they have been contributing to the costs of court security while other municipalities in the region such as Gloucester and Nepean have not.
Jurisdiction:
Mr. Wallace had previously advised the Commission by letter that he would be appearing only to contest jurisdiction and that in the event that his submission was not successful that he would request an adjournment in order to seek judicial review. We want to thank Mr. Wallace for that advance notice. Such disclosure makes the task of any tribunal easier.
Mr. Wallace and Mr. Westwick both challenge our jurisdiction to hear this application.
The agreement in question was negotiated in 1984 with the active participation of members of staff of the Ontario Police Commission. When the agreement was in final form it was approved by the Ontario Police Commission. The Ontario Civilian Commission on Police Services is the successor to the Ontario Police Commission (Section 21(1) Police Services Act) and accordingly it is our view that this Commission has whatever jurisdiction had been previously conferred on the Ontario Police Commission.
Section 23 of the Agreement provides:
"23. In the event of any dispute arising among the parties
hereto regarding any provision of this agreement or the performance or non performance of any obligations hereunder such dispute shall be submitted to the Ontario Police Commission whose decision shall be final and binding."
It is our opinion that pursuant to Section 23 of the Agreement this Commission has jurisdiction to determine the first issue brought before us by the Vanier Board, that is to say, whether or not the cost of providing "court security" ought to be included in the calculations under the agreement. We cannot find, however, that this Commission has any jurisdiction to order one party to the agreement to pay money to another. Therefore we will consider whether the cost of providing "court security" is to be included in the calculations under the agreement. We will not, however, consider whether one of the parties ought to pay money to the other.
Adjournment:
Following the above ruling Mr. Westwick sought an adjournment in order that the Ottawa Police Services Board could consider whether it would be appropriate for them to apply for judicial review, and to instruct counsel accordingly.
This matter did not arise on the sudden. As previously mentioned the city had given us notice of their intent and it is our view that both the City of Ottawa and the Ottawa Board have had adequate time to consider what action they might take in the event that their argument on jurisdiction failed. We find no substantial prejudice to either party if we proceed and accordingly we rule against the motion to adjourn and elect to proceed.
Court Security:
The Act imposing upon police forces the duty to provide security in connection with court proceedings, in part, reads as follows:
"(1) A Board responsible for the policing of a municipality has the following responsibilities, with respect to premises where court proceedings are conducted: ...
(2) The Ontario Provincial Police Force has the responsibilities ... in those parts of Ontario in which it has responsibility for policing."
Vanier asks us to rule that the above quoted portions of the Act clearly impose responsibility only upon a municipality within whose jurisdiction court proceedings are conducted and that accordingly there is no obligation on any other municipality such as Vanier to contribute to such costs.
In the view we take of this application it is unnecessary for us to
decide this issue and we expressly refrain from doing so.
In our analysis of the situation we have assumed, but without finding, that the statutory obligation to provide court security falls upon the Ottawa Police Services Board. The parties agree that there is no difference in substance in the distinction that may be made between a Board and a force. The cost of operating a police force is ultimately paid by the taxpayers in the municipality whether the legal obligation falls upon the Board or the force.
While it is true that this financial obligation was imposed after the contract was in place, and was not in contemplation of the parties when the contract was negotiated, it is not necessarily excluded simply by that fact.
The agreement is for a period of ten years and was structured in such a way as to accommodate the evolution of human affairs. The method of calculating the share to be paid by the City of Vanier is simplicity itself. The contract does not deal with specifics relating to the number of officers or the amount of equipment or the hours of patrol for example. The agreement simply provides that Ottawa "shall provide a level of police services in the City of Vanier equivalent to the services provided in the City of Ottawa." Paragraph 24 of the agreement provides that "all efforts will be made to provide the policing services in accordance with this agreement in the City of Vanier in the official languages (English and French) of this country."
The Agreement requires the calculation of a cost of policing for the two municipalities, and provides a formula for sharing that cost. The cost base for the formula is referred to as "direct costs" and "imputed capital costs". The "direct costs" are defined as "all operating costs of the City of Ottawa Police Force, including capital expenditures financed from current revenues, excluding the cost of the servicing of debenture debt, net of any revenues and recoveries other than the provincial grant for police services, other than revenues contemplated by this agreement and any revenues derived by virtue of the levying of taxes on property within the City of Ottawa, but excluding costs of parking control services and the effect of any prior year surplus or deficit."
Mr. Lalonde argues that the costs imposed by the legislation in question here fall only upon the City of Ottawa and thus the burden is not one of general application to all police forces and accordingly can be distinguished from other costs on this ground. For instance, the cost associated with the employment equity plans mandated by the Police Services Act is a cost that must be borne by all police forces. However, because the City of Ottawa is the nation's capital the "operating costs of the City of Ottawa Police Force" include many services which do not burden other municipalities. Public figures from other countries frequently visit the City of Ottawa and this requires significant expenditures for security. A portion of the population of the City of Ottawa is internationally protected persons and this also imposes a security burden on the police force, as does the physical presence
of foreign embassies. We think it noteworthy that none of these costs are excluded from the calculations in the Agreement. The definition of "direct costs" in the Agreement (operating costs of the City of Ottawa Police Force) is sufficiently broad to encompass the costs in question here. If "court security" costs were to be excluded from the calculation we find it difficult to understand why other costs, such as those described above, are not also excluded.
Ruling:
The costs associated with providing security relating to court proceedings are to be included in calculating the cost of policing pursuant to the Policing Agreement between Ottawa and Vanier.
DATED THIS DAY OF NOVEMBER, 1991.
per
W.D. Drinkwalter, Q.C., Chairman