ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES
IN THE MATTER OF A HEARING UNDER SECTION 25 OF THE POLICE SERVICES ACT INTO THE CONDUCT AND PERFORMANCE OF DUTIES OF THE MEMBERS OF THE WALLACEBURG POLICE SERVICES BOARD
Presiding Members:
Murray W. Chitra, Chair Karlene J. Hussey, Member Bob Saracino, Member
Appearances:
Leslie M. McIntosh, Counsel, Ontario Civilian Commission on Police Services
David I. Wakely, Counsel, Wallaceburg Police Services Board Daryn M. Jeffries, Counsel, Wallaceburg Police Services Board Martin J. Doane, Counsel, Wallaceburg Police Association and Police Association of Ontario
Ian J. Roland, Counsel, Wallaceburg Police Association and Police Association of Ontario
Hearing Dates: April 24, 25, 26 and May 14, 1996
This is a hearing held pursuant to subsection 25(1)(a) of the Police Services Act, R.S.O. 1990, c. P. 15 as amended (the "Act") into the conduct and performance of duties of the members of the Wallaceburg Police Services Board (the "Board").
The specific allegations under consideration are as follows:
That the members of the Wallaceburg Police Services Board failed to comply with the direction of the Commission pursuant to section 9(2) of the Police Services Act issued on or about the 29th day of March, 1996; and
That members of the Wallaceburg Police Services Board failed to comply with the Police Services Act, in that, on or about the 22nd day of March, 1996 they laid off three members of the Wallaceburg Police Service without following the requirements of section 40.
These allegations give rise to concern that members of the Board may be guilty of misconduct, are not performing or are incapable of performing their duties in a satisfactory manner.
Subsection 25(5) of the Act provides that if, after a hearing, such concerns are established the Ontario Civilian Commission on Police Services (the "Commission") may remove or suspend any member of a police services board.
Background
The Town of Wallaceburg is located in Kent County in southern Ontario. Its current population is approximately 12,000.
Policing in the community is provided by a municipal police force headed by Chief Delvyn Lunn. The authorized strength of the Wallaceburg Police Service (the "Service") is 30 members (22 uniformed officers and 8 civilian employees). At the beginning of 1996 the actual strength of the Service appears to have been 29 members (19 uniformed officers, 2 cadets and 8 civilians).
The responsibility for the overall governance of the Service in Wallaceburg is vested in the Board. In early 1996 the Board consisted of five members. The two municipal appointees were Mayor Jeff Wesley and Counsellor Ron Tack. Mr. Tack also served as Board Chair. The provincial appointees were Max Heath, Richard G. Foster, and Wendy Murru. Mr. Foster's appointment has since expired and not been renewed.
The events which gave rise to this hearing commenced in January of 1996. They are complex.
In early January the Town was advised by the Province of Ontario that its municipal grant would be reduced by approximately $759,000. The Town allocated $200,000 of this sum to the Board for its 1996 budget.
This provoked a series of meetings and requests for ideas on how this cut was to be managed. On February 7, 1996 the Board passed a motion which read in part:
That the Wallaceburg Police Services Board provide the opportunity to the Wallaceburg Police Association to offer $200,000 in cost saving (based on 1995 costs) ideas through sick leave credits or other means by February 12, 1996 and failing this that the Wallaceburg Police Service Board hereby take the following steps immediately:
(1) Cancellation of all overtime except in emergencies only ... (2) Lay off 1 full time communicator ... (3) Lay off 1 full time data entry person ... (4) Reduce level of janitorial service ... (5) Lay off 2 most junior cadets/officers ...
The original sheet which contained the handwritten motion had a note to the effect that there was unanimous support "to take this all the way".
The president of the Wallaceburg Police Association (the "Association) contacted the Commission office in Toronto the same day and expressed concern that the Board was proposing to unilaterally lay off members of the Service without complying with the provisions of section 40 of the Act.
The Association faxed a letter to the Commission which read in part:
We have advised the Wallaceburg Police Service's Board members previously regarding section 40 of the Police Services Act, however considering this notice by them we feel they have every intention on violating this Act.
We feel it is necessary to move quickly on this matter as it is obvious this Board plans on implementing these layoffs as of Monday, February 12, 1996 without going through the provisions stipulated in the Police Services Act.
We are requesting your intervention immediately ...
A copy of this letter was directed to Mr. Tack in his capacity as Chair of the Board.
On February 8, 1996 Mayor Jeff Wesley wrote a letter to the Commission in response to the Association's correspondence. In his letter he expressed concern about provincial cuts, lack of cooperation on the part of the Association, and described the process by which the various reduction targets were set.
At about the same time Michael Federico, Senior Investigator to the Commission contacted Maurice Hodgson. Mr. Hodgson is the Police Services Advisor of the Ministry of Solicitor General and Correctional Services ( the "Ministry") responsible for Wallaceburg. Mr. Hodgson provided background information on the situation and was instructed to ensure that the Board understood that any layoffs or terminations must take place in accordance with section 40 of the Act.
Mr. Hodgson wrote the Chair of the Board on February 12, 1996. The salient aspects of his letter was as follows:
This correspondence will confirm our telephone conversations of February 2 and 7, 1996, regarding the proposed reduction of the Wallaceburg Police Service.
The Police Services Board, as governing authority, ensures that the police service is staffed, structured and organized in a manner which supports its efficient operation (Policing Standard 0302.01) ...
Legislation provides through Section 40 of the Police Services Act that "a Board may terminate the employment of a member of the police force for the purpose of abolishing the police force, or reducing its size if the Commission consents". This process involves a hearing by the Ontario Civilian Commission on Police Services (OCCPS), who will adjudicate on the adequacy and effectiveness of the police service as mandated in Section 4(1) of the Police Services Act.
You will note it refers to a 'member' of a police force. This includes full-time and part-time civilian members, all special constables and all sworn police officers.
I have discussed this issue separately with the Association and the Chief of Police, and my advice and guidance has been consistent with what I have discussed with you. I understand some offer has been made by the Association in terms of salary adjustments and other benefits, and I support that initiative to settle the matter locally.
The point that has to be made, however, is that the Board should not take unilateral action in downsizing the Wallaceburg Police Service without requesting a Section 40 hearing of the OCCPS. Given that fact, and the timeframe involved, no severance action should be taken without the consent of the OCCPS.
Trusting this correspondence will remove the possibility of misinterpretation of the facts and that it clearly defines the requirements placed upon the governing authority.
I am advising the Ontario Civilian Commission on Police Services of this critical issue by way of a copy of this correspondence ...
Mr. Hodgson also indicated in his testimony that he had a number of telephone discussions and exchanged phone messages with both Mr. Tack and Mr. Wesley to reiterate his advice. He also stated that he made it clear that it applied to layoffs of both a short or long term nature or whether the employees in question were probationary or otherwise (assuming cause was not involved).
In his testimony, Mr. Wesley indicated that he had no such discussions with Mr. Hodgson. Leaving this aside however, Mr. Hodgson's statements with respect to his conversations in this regard with Mr. Tack, the Chair of the Board are undisputed.
No layoffs took place on February 12, 1996. On February 22, 1996 a number of business leaders from the Town came forward and offered their assistance in trying to find ways to resolve the financial concerns.
The minutes of the Board meeting of March 4, 1996 note that Mr. Hodgson's letter of February 12, 1996 was "presented by chair Ron Tack". On the basis of a motion made by Wendy Murru which was seconded by Richard Foster the correspondence was simply 'received and filed'.
On March 12, 1996 Mayor Wesley wrote to the President of the Association indicating:
This letter is to advise the W.P.A. that any action to be taken on the motion that was to be effective Feb. 12, 1996 will be postponed until the day after Thursday March 21, 1996. All parties must realize that this is over 1 month past the original deadline and still no written offers have been received by the W'burg Police Services Board from the W.P.A. This extension is being granted on the understanding that the W.P.A. are working on a proposal to present to the W.P.S.B. that would assist in the cost cutting of the Town of Wallaceburg and thereby reduce or eliminate the need for a reduction in personnel.
We await your proposal and stress that there can be no more extensions beyond March 21st.
No copy of this correspondence was directed to the Commission.
It would appear that business leaders were unsuccessful in their efforts and no Association proposal was received which was satisfactory to the Board. As a result, on March 22, 1996 the Board served layoff notices on Cadet Jonathan Hart, Cadet Jeff Rovers and Third Class Communicator Janet VanCaille. These individuals appear to have been the most junior members of the Service. Cadet Hart was hired on October 2, 1995, Cadet Rovers on September 11, 1995 and Communicator VanCaille on November 29, 1995.
The wording for all three notices was similar. The relevant portions read:
Due to severe financial cuts and constraints placed upon the Town of Wallaceburg by the Province of Ontario, we must, with sincere regrets, advise you that you will be layed off effective Monday, March 25, 1996. This layoff will be in accordance with Section 2.01 (f) of our local collective agreement and you will receive the appropriate pay in lieu of the required ten (10) working days notice. The period of layoff will be indefinite but we are hopeful that it will be short term. We will conduct any recall in accordance with Section 2.01(f) of our collective agreement.
While we must act now to offset the funding cuts before us, we do believe that the Province of Ontario will undertake and finish the police services review as well as impose a charge on rural communities to reflect the cost of current police services sometime in 1996 or 1997. We believe that this will allow police services such as Wallaceburg's, to expand their area of coverage with a resulting increase in revenues which will allow for your call back as early as possible.
Under Section 44(1) and (3) of the Police Services Act the Wallaceburg Police Services Board could have considered termination for employees still on probation but we have instead opted for a layoff to address our financial crisis while also allowing us to once again retain your services once the Province is finished their review and makes the necessary decisions. We feel this is the best approach for all concerned and we apologize for the inconvenience caused to you and hope the layoff will be short term in duration.
If the Police Association or other parties determine this layoff not to be acceptable, then we will have no other choice but to reconsider Section 44(3) and look at our action as terminations. This action being taken should not be seen as a reflection of your fine employment record with the Wallaceburg Police Service, but rather it is a direct and attributable result of the severe funding cutbacks imposed on our community by the Province of Ontario.
No consent or authorization was obtained from the Commission prior to this action.
The same day the Board sent a 4 page letter to the Honourable Robert Runciman, Solicitor General and Minister of Correctional Services (the "Minister") justifying the action. It cited a number of provisions of the Act, including section 44. It concluded by stating:
Very clearly we can terminate the probationary employees under this section (we have three (3) constables and one (1) administrative person under the one (1) year period), and in order to be reasonable we have instead chosen to temporarily lay off two (2) constables and one (1) administrative person in accordance with our local collective agreement. If it is felt that we can not properly lay off these individuals, then we will follow the act by the letter and advise them, with reasons, that they have been terminated. Once the province completes its police services review we will rehire if financially able to do so.
In summary, the actions being taken by the Wallaceburg Police Services Board, with the full support of Wallaceburg Town Council, do NOT in any way:
contravene the Police Services Act
detrimentally affect the effectiveness or adequacy of the police force.
necessitate the need for a hearing which will only represent a further waste of scarce taxpayer money while at the same time putting the town of Wallaceburg in an ever deepening financial hole.
contravene what the Wallaceburg Police Services Board or Town Council, (as representatives of our taxpayers), deem to be an "adequate and effective police services in accordance with its (read our) needs" ...
This correspondence was on Town of Wallaceburg letterhead and signed by Mr. Tack in his capacity as Board Chair and Mr. Wesley as Mayor.
On March 25, 1996 legal counsel for the Wallaceburg Police Association wrote the Commission reporting the actions of the Board and expressing concern about the effect of a unilateral layoff of so many employees on the ability of the Service to provide an adequate level of service to the public. This correspondence concluded by stating:
The lay-off flagrantly breaches the Police Services Act. Mr. Maurice Hodgson, of the Ministry of the Solicitor General's Policing Standards Division, advised the Board repeatedly over the last few months that any reduction in the size of the Force through layoff or termination was contingent on the Board making a successful s. 40 application under the Act. In ignoring Mr. Hodgson's advice and the clear requirements of the Act, the Board has treated with disdain the members of the Wallaceburg community, the Police Association, the Policing Standards Division of the Ministry and the Commission. The competence of the Police Services Board of Wallaceburg to carry out the responsibility of providing police services is compromised by its intentional illegal conduct.
The Police Association therefore requests that the Commission make an order pursuant to s. 9(2) of the Act directing the Police Services Board to reinstate immediately, with back pay, the three laid off members of the Police Force. The Association further asks that if the Board does not comply with the direction, the Commission request that the Commissioner of the O.P.P. have the O.P.P. take over responsibility for the Force and effect the reinstatement of the three members, pursuant to s. 9(3) of the Act.
On behalf of the Commission Mr. Federico was requested to confirm the information set out in the letter.
Mr. Federico ascertained that the three employees had indeed received layoff notices. It was determined that Cadet Hart reported for duty for his regularly scheduled shift on March 25th and was turned away. Third Class Communicator VanCaille reported for duty for her regularly scheduled shift on March 26th and was turned away. Cadet Rovers reported for duty for his regularly scheduled shift on March 28th and was turned away.
Mr. Federico obtained a copy of the Board's correspondence of March 22nd to the Minister setting out the justification for their actions. As well, Policing Services Advisor Mr. C.F. Brennan was requested to interview Chief Lunn to obtain his assessment of the impact of the layoffs on the ability of the Service to provide adequate and effective policing to the community of Wallaceburg. This interview took place on March 27th.
On March 28th, the Commission received a detailed report of the interview. It included a formal statement from Chief Lunn with 23 attachments. Two parts of this document are worth noting. In it Chief Lunn states:
... I do not feel that the Wallaceburg Police Service is able to provide an adequate police service for this community as a result of recent lay-offs of two cadets and one police communicator. Those lay-offs are the result of the direction of the Wallaceburg Police Services Board which were effective on March 25, 1996. I base my opinion that the police service is inadequate as result of my personal knowledge and almost twenty-seven years of policing experience in this community of Wallaceburg....
The Wallaceburg Municipal Council had determined that a reduction of $300,000.00 be made to the Wallaceburg Police Service budget with $200,000.00 reduction in 1996 and a $100,000.00 reduction in 1997. I would like to say that these reductions have given me some very grave concerns! I have taken great pride in operating this police service like and as a business by being fiscally responsible to this community. However, I have a responsibility both morally and legally to manage an adequate police service to the residents of this community. The layoff of the two cadets and one civilian communicator clearly puts this Police Service in providing inadequate policing to this community and I am unable to ensure the safety and security of the members of this community and other members of this police service. With such service and drastic reductions as proposed it became obvious that there was no other way than reducing staff but at the same time I felt we were obligated to review every expense of the police service and make any reduction that we could but at no time did I indicate or did I recommend a reduction in staff or do I now. This process did not only include myself but I communicated and provided information concerning the budget to the Wallaceburg Police Association and the Wallaceburg Police Services Board ...
The substance of this statement and the other information that Mr. Federico obtained was communicated to Commission members.
As a result, on March 29, 1996 a Direction was faxed to the Chair of the Board. It read:
The Commission has been informed that on March 22, 1996 the Wallaceburg Police Services Board issued lay off notices to three members of the Wallaceburg Police Service. This notice purported to take effect on March 25, 1996.
Under the provisions of section 40 of the Police Services Act members of a police force may only be terminated with the consent of the Commission. This requirement extends to "lay offs". In this regard, I enclose for your information a copy of a decision of the Commission dated February 9, 1994 concerning the Stratford Police Services Board.
The Commission has not consented to either the "lay off" or termination of the members in question. Accordingly, the action of your Board is not in compliance with the Act.
Further, leaving aside the question of the Board's authority in this matter, its actions in reducing the number of members of uniformed and civilian staff raise serious concerns about the ability of your force to provide adequate and effective police services.
Given the above, the Wallaceburg Police Services Board is hereby directed under the authority of subsection 9(2) of the Police Services Act to reinstate the three members laid off on March 22, 1996 forthwith.
Please provide faxed written confirmation of the Board's compliance with this direction by the end of business, Tuesday, April 2, 1996.
The same day, following receipt of the fax, Mayor Wesley telephoned the Commission and spoke to Mr. Federico. He expressed strong concern with the actions of the Commission, suggested that the complete facts were not known, and indicating that either the Board or Council should have been contacted for the "other side of the story" before the Directive was issued. This view was repeated in a subsequent letter dated April 1, 1996.
The Board met on April 1, 1996. The minutes of the meeting report a motion by Max Heath which was seconded by Mayor Wesley to "receive and file" the Directive from the Commission. Further, the minutes indicate that Mayor Wesley submitted a copy of his response. On a motion made by Wendy Murru, seconded by Max Heath this letter was also received and filed.
On April 2, 1996 the Commission received a letter from solicitors representing the Board. Referring to the Direction of March 29th, it read:
Your letter sets out certain alleged facts upon which your conclusions were reached. We can only assume that your information was based upon the information you received from counsel for the Wallaceburg Police Association by letter dated March 25, 1996. No representative from the OCCPs contacted any member of the Wallaceburg Police Services Board, nor does there appear to have been any effort on the part of the OCCPS to conduct an independent investigation of the facts and allegations relied upon in reaching its decision. To base any decision on the information received from only one party to a situation such as this is a flagrant breach of the rules of natural justice and does grave disservice to the policing community in Ontario.
We wish to correct some misconceptions that you may have. The employees in question are probationary employees, covered by Section 44(3) of the Police Services Act, not sworn officers. Further, the Wallaceburg Police Services Board is not reducing the size of its police force within the meaning of Section 40(1) of the Police Services Act, as these employees are maintaining recall rights and will eventually return to active duty. At its highest, it can be said that the Wallaceburg Police Services Board is reducing the active complement of officers at the present time. To exemplify the temporary nature of these layoffs, it can be noted that one of the three probationary employees who was laid off will be recalled on April 8, 1996, due to the resignation of a full-time sworn officer.
Applying the provisions of the Police Services Act to the actual facts of this case, it is apparent that the Wallaceburg Police Services Board has acted in compliance with this legislation at all times. The Board has the unfettered right pursuant to Section 44(3) of the Police Services Act to terminate the employment of probationary employees. Further, neither Section 40(1) or Section 9(2) of the Police Services Act are relevant to this matter.
Section 40(1) is only operative where there is a reduction in the size of the police force (which has not occurred in the present case), and section 9(2) is only applicable if "a municipal police force is not providing adequate and effective police services". This is simply not the case in the Town of Wallaceburg. There is no evidence whatsoever, and there has been no attempt made to gather any such evidence, which would support a finding that the Wallaceburg Police Force is not providing adequate and effective police services.
A determination that a police force is not providing adequate and effective police services is a prerequisite to the application of Section 9(2). It is difficult to ascertain how the OCCPS was able to determine whether the Wallaceburg Police Force was providing adequate and effective police services without conducting an investigation and without contacting any member of the Wallaceburg Police Services Board.
We trust, on the basis of the foregoing, you will reconsider and rescind your decision of March 29, 1996, regarding the reinstatement of these probationary employees. At the very least, a full hearing into this matter should be held in order to provide all parties with an opportunity to provide their input and express their views ...
Mr. Federico made a telephone call to the Board's solicitors on April 3, 1996 to clarify this correspondence. He was advised that the Board had not and did not intent to reinstate the laid off members of the Service.
This matter was reviewed by Commission members the same day. A determination was made to initiate these proceeding under subsection 25(1)(a) of the Act. Board counsel was notified of this fact and the specific matters at issue April 4, 1996.
The Law
To place these events in context, it is essential to have a clear understanding of the role and responsibilities of municipalities, police service boards, chiefs of police, the Ministry and the Commission with respect to policing. This must be viewed in light of the specific requirements of the Act.
Municipalities
Section 4 of the Act provides that unless exempted, every municipality in the province is obliged to locally provide "adequate and effective police services in accordance with its needs".
This responsibility can be discharged in a number of different ways. One involves the establishment and maintenance of a municipal police service. This is the situation in Wallaceburg. In such cases, subsection 5(1) of the Act provides that "municipal council shall pay the cost of the police force".
Thus the legal duty rests on the municipality to fund an adequate and effective police service. The precise mechanism of the funding (i.e. from municipal tax revenues, reserves or a combination of both) rests with the municipality.
Police Services Boards
Every municipality in Ontario that maintains a police force is required by law to have a police services board. The members function in essence as a "board of directors" to their police service. Their role is central to our concept of independent civilian governance of police services in Ontario. In a very real way they act as public stewards in ensuring that police forces are representative of and accountable to the communities that they serve.
There are approximately 100 police services boards in Ontario. Membership varies from three to seven members. Subsection 27(4) of the Act provides:
27(4) The board of a municipality whose population according to the last enumeration taken under section 15 of the Assessment Act does not exceed 25,000 shall consist of,
(a) the head of the municipal council, or another member appointed by resolution of council; and
(b) two persons appointed by the Lieutenant Governor in Council.
Subsection 27(6) of the Act permits a municipal council by resolution to increase the membership of its board to five (i.e. one additional municipal member and one additional provincial appointee).
This is the case in Wallaceburg. As noted earlier, during the events in question, the Board was composed of five members. These particular five individuals are not new to their role. Both Mayor Wesley and Counsellor Tack have served on the Board for approximately 6 years. Richard G. Foster had been a member for just under 4 years. Max Heath and Wendy Murru were well into the second year of their appointment.
The duties and responsibilities of the board are formally set out in the Act. They are significant. Section 31(1) makes it clear that it is the Board which is directly "responsible for the provision of police services and for law enforcement and crime prevention in the municipality ..." This obligation is fulfilled in a number of ways. It includes, the determination of policing priorities, the establishment of policies, the appointment of members of the service, the chief of police, special constables, and auxiliaries.
Indeed, section 38 of the Act states that a "municipal police force shall consist of a chief of police and such other police officers and other employees as the Board considers adequate, and shall be provided with the equipment and facilities that the board considers adequate". The Board is also responsible for the preparation of the services's annual estimates for submission to municipal council.
It is by fulfilling these duties in a careful, and considered manner that police services boards ensure an adequate and effective police service.
Chiefs of Police
The chief of police performs the role of Chief Administrative officer of the service. It is the chief's responsibility to oversee the operation of the force in accordance with the objectives, priorities and policies of the board. The chief, however, has an important role to play in developing these instruments. Indeed, subsection 31(1)(b) of the Act makes it clear that the Board is to set objectives and priorities for the services "after consultation with the chief of police".
In essence, it is the chief's responsibility to effectively manage the officers, employees, equipment and facilities of the service. This ensures operationally that adequate and effective policing takes place.
The Ministry
One of the key responsibilities of the Ministry of the Solicitor General and Correctional Services is the monitoring and support of policing in the province. This is accomplished in a number of different ways. It includes the development of standards.
Specifically, subsection 3(2) of the Act directs:
3(2) The Solicitor General shall,
(a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels ...
(g) consult with and advise boards, municipal chiefs of police, employers of special constables and associations on matters relating to police and police services ...
(i) provide to boards and municipal chiefs of police information and advice respecting the management and operation of police forces, techniques in handling special problems and other information calculated to assist ...
This describes the role undertaken by Police Services Advisors C.F. Brennan and Maurice Hodgson.
The Commission
The Commission is an independent agency with ultimate responsibility for the oversight of municipal policing in Ontario. It is assigned a number of specific duties by the provincial legislature. Some are clearly relevant for the purposes of this proceeding.
a) Sections 40
One key responsibility is to assess and approve of proposed levels of policing service and adjudicate disputes relating to adequacy. Section 40 is a key element of this scheme.
Subsection 40(1) of the Act requires that any municipal police service that wishes to "terminate the employment of a member of the police force for the purpose of ... reducing its size" must obtain the consent of the Commission. The purpose of this provision is to ensure a consistent level of policing coverage throughout Ontario. The rationale being that no matter where a citizen may live or work they can be assured of the presence of sufficent police services to protect their safety and security.
Normally, the Commission conducts a public meeting to hear presentations and receive submissions on the question of whether or not what is being proposed would adversely impact on the adequate and effective policing in the community in question and thus contravene the act.
In such cases the Commission considers adequacy against an objective standard in relation to core policing functions which should largely be consistent throughout the province, regardless of the size and location of the community; and on a subjective standard, having regard to the particular community's unique circumstances and its perception and expectations. A number of specific means to measure adequacy which have been developed by the Commission in over 30 years of decision making are applied.
If a reduction is approved, subsections 40(2) and (3) require the Commission to ensure that a mechanism is in place so that affected employees receive appropriate severance. This mechanism can either be a signed agreement or referral to an arbitrator.
The purpose of these provisions are to make sure that no member of a police service in the province of Ontario is removed from of duty without proper consideration being given to possible entitlement to severance pay.
A narrow exception to the requirements of section 40 can be found at section 44. This provision reads:
44(1) A municipal police officer's probationary period begins on the day he or she is appointed and ends on the later of,
(a) the first anniversary day of the appointment;
(b) the first anniversary of the day the police officer completes an initial period of training at the Ontario Police College.
(2) The police officer shall complete the initial period of training within six months of the day of appointment.
(3) A board may terminate a police officer's employment at any time during his or her probationary period but, before doing so, shall give the police officer reasonable information with respect to the reasons for the termination and an opportunity to reply, orally or in writing, as the board may determine ...
The purpose of this provision is to permit a board to terminate police officers during their probationary period. It has been the subject of judicial interpretation.
b) Section 9
In addition to assessing adequacy in the context of a reduction of a service under section 40 of the Act, the Commission also has been granted by the legislature general power to respond when the requirements of the Act are not being met. The source of this authority is section 9 of the Act.
Section 9 has two distinct aspects. The first relates to a failure to provide adequate policing. The second relates to a failure comply with the provisions of the Act. Subsection 9(2) reads:
9(2) If the Commission finds that a municipal police force is not providing adequate and effective police services or is not complying with this Act or the regulations, it may communicate that finding to the board of the municipality and direct the board to take the measures that the Commission considers necessary.
This provision, was the source of the Commission Directive to the Board of March 29, 1996. This specific Direction focused on both a failure to provide adequate services and to comply with a particular section of the Act (i.e. section 40).
c) Section 25
The final relevant provision is section 25. As part of its oversight function the Commission must ensure that members of boards perform their duties in a satisfactory manner and comply with the Act.
The salient parts of section 25 read:
25(1) The Commission may ... of its own motion ... inquire into ... (a) the conduct of the performance of duties of ... a member of a board ...
(5) If the Commission concludes, after a hearing, that a member of a board is guilty of misconduct or is not performing or is incapable of performing the duties of his or her position in a satisfactory manner, it may remove or suspend the member.
These are the provisions under which this hearing is being held.
The Hearing
The hearing commenced on April 24, 1996. At that time two motions were raised.
The first was by Mr. Wakely on behalf of the Board. It took the form of an application "for Direction from the Ontario Civilian Commission on Police Services on the issue of whether Section 40 of the Police Services Act applies to the particular fact situation facing Wallaceburg. Specifically, whether or not section 40 consent is required in the event of short-term temporary layoff of probationary employees".
The second motion was made by Mr. Ian Roland on behalf of the Wallaceburg Police Association and Police Association of Ontario. It was a request for standing to participate in the proceedings.
The first motion was not granted. We concluded that the focus of the proceedings under section 25 was the conduct of the Board members and that the application of section 40 could appropriately be dealt with in the context of the hearing.
The second motion was granted. We concluded that the layoff had a direct impact on the Association and its members. We felt that there were facts in dispute and that the Association could provide information which would assist the panel. Finally, we felt that the issue raised by the hearing generated important legal questions on which the Association could provide valuable assistance.
For the balance of April 24th and the two following days we heard testimony from Mr. Federico, Mr. Hodgson, and Mr. Wesley. As well we received a substantial number of exhibits.
Final submissions were scheduled to be heard on April 30th. However, prior to that date the Board passed a motion reinstating the remaining laid off cadet and civilian communicator pending the conclusion of the hearing, without prejudice to its position. With the agreement of all concerned submissions were rescheduled for May 14, 1996.
Positions of the Parties
Mr. Wakely asserts that the actions of the Board on March 22, 1996 were both proper and lawful. He indicates that a short term layoff of probationary staff does not constitute a "termination" or "reduction" within the meaning of section 40. He states that the fact situation in this case can be distinguished from prior Commission decisions. He cites Village of Hastings (Ontario Civilian Commission on Police Services), 15 July, 1991 as providing the correct approach to this issue.
He states that at no point was the Board advised that it could not undertake the short term layoff of probationary staff. Any advice received, did not apply to the Board's particular situation. Further, the Board's requests for support, information and assistance were ignored.
Mr. Wakely argues that the Board has an unfettered right under section 44 to terminate probationary staff. He suggests that even if this were not the case, that the Board was acting in good faith, with an understandable, reasonable and honest belief that they had the need and authority to act as they did.
He characterizes the incidents giving rise to the events in question, as a "labour dispute" that is properly the subject of either grievance or arbitration under the terms of the collective agreement, rather than formal proceedings under section 25 of the Act.
He argues that the Commission's Direction of March 29, 1996 was unlawful. He states that a precondition to the making of a direction is a "finding" of "inadequacy". He asserts that no such "finding" was made. He suggests, that given the "operational" complement of the Service, compared to past years, it cannot be said to be inadequate.
Mr. Wakely also, asserts that the Direction is invalid because of a failure on the part of the Commission to observe natural justice, procedural fairness and the audi alteram partem rule. He points to the fact that Board members were not consulted before the Directive was issued, did not receive a copy of Chief Lunn's statement or advised of its existence. He suggested that if the latter had been the case the Board would have responded to the Commission in a different fashion.
In support of these arguments, Mr. Wakely cities Cardinal and Oswald v. Director of Kent Institution, 1985 CanLII 23 (SCC), [1985] 2 S.C.R. 643 (S.C.C.), Re Pergamon Press Ltd, [1970] 3 All ER 535 (C.A), Selvarajan v Race Relations Board, [1976] 1 All ER 12 (C.A.), Echo Bay Mines Ltd. v. Labour Standards Board, 92 C.L.L.R. 979 (S.C.N.W.T.), and Robert Brothers Farming Ltd. v. Alberta, 1994 CanLII 9007 (AB QB), [1994] 9 W.W.R. 493 (Alb. Q.B.).
In contrast, Ms. McIntosh argues that the essential facts in this case are not in dispute. The Board laid off 3 members of the Service on March 22, 1996 for an indefinite period of time. She asserts that a purposive view of section 40 and a plain reading of Stratford Police Services Board (Ontario Civilian Commission on Police Services), 9 February, 1994 makes it clear that these individuals should have been the subject of a formal application before the Commission.
She suggests that this was known to the Board. She argues that the only other reasonable explanations were that the Board was wilfully blind to the law or egregiously unprepared to deal with its important responsibilities. Ignorance of the law, she asserts is no defence to an allegation of misconduct. Ms. McIntosh states that if the Board had any doubt about the application of section 40 that it has a duty to inform itself.
In this regard, she cites Faragher and Owen Sound Police Services Board (Ontario Civilian Commission on Police Services) 16 January, 1995. Further, she also suggests that the Board failed in its responsibility to consult with the Chief as required by subsection 31(1)(b) of the Act.
She argues that the requirements of section 9 have been met in this case. She states that the Commission had sufficient credible evidence of both non-compliance with section 40 and inadequate police coverage to issue an emergency Direction to the Board.
She suggests that the exercise of an emergency authority, in a situation where individual rights and privileges (i.e. Board members) are not affected, does not attract all of the requirements of procedural fairness. In any event, she notes that the Commission had the Board's position as expressed in their letter of March 22, 1996 to the Minister before it acted.
She states that if the Board had difficulty with the Direction of March 29, 1996 that the correct response was either to "obey and then grieve", or make application for judicial review. Better yet, Ms. McIntosh suggests the Board should have made application to the Commission under section 40 for a ruling prior to taking any action, as it was advised.
Mr. Doane, on behalf of the both the local and provincial associations, adopts Ms. McIntosh's position. He suggested however, that he takes a less charitable view of the Board's actions.
He argues that the Board was aware that section 40 was a concern as early as January. Despite this, he states that the Board passed its original motion, threatening the Association with illegal acts to extort monetary concessions.
He states out that section 44 cannot apply to the facts of this case given the status of the individuals in question and the lack of cause. In this regard he cites Mitchell v. The Queen, 1979 CanLII 1922 (ON HCJ), 23 O.R. (2d) 65 (Ont. H.C.J.), Makila v. Sault Ste. Marie, (1995) 8 C.C.E.L. (2d) 134 (Gen. Div.), and Roy v. Beresford et al., 1986 CanLII 5385 (NB QB), 72 N.B.R. (2d) 19 (Q.B.).
He asserts that despite clear and consistent advice the Board elected to proceed with its illegal action and then chose to openly, defiantly, and insolently reject the Commission's Direction. He states that their actions were absent of any genuine belief that they were obeying the law.
He characterizes the Board's conduct as a clear failure to appreciate the rule of law and the important symbolic and function of the role that they perform under the Act. He suggests that Board members failed to understand their duties and that some members confused their municipal and board responsibilities.
He argues that there has been no denial of procedural fairness or natural justice in the issuing of the Direction under section 9. He argues that looking at the statutory scheme as a whole, it is clear that the power in question is an interim urgent authority of a preliminary nature. He asserts that this is a well recognized and understood exception to the audi alteram partem rule. He asserts in such situations no hearing or individualized assessment of urgency is required.
In support of this position, Mr. Doane cites Attorney General of Canada v. Inuit Tapirisat et al., 1980 CanLII 21 (SCC), [1980] 2 S.C.R. 735 (S.C.C.), Board of Education of Indian Head School Division No. 19 of Saskatchewan v. Knight 1990 CanLII 138 (SCC), 69 D.L.R. (4th) 489 (S.C.C.), Reggio Foods Inc. et al. v. Communaute Urbaine de Montreal et al. (1985) 21 Admin. L.R. 266 (Que. C.A.), section 57 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 as amended, Bishop v. Ontario Securities Commission 1963 CanLII 228 (ON CA), 41 D.L.R. 24 (Ont. C.A.), affirmed 1964 CanLII 627 (SCC), 46 D.L.R. (2d) 601 (S.C.C.) and R. v. Birmingham City Council, [1993] 1 All ER 530 (C.A).
Decision
The first count against the Board relates to their alleged failure to comply with the Commission's Direction of March 29, 1996.
On the clear facts of this case it is evident that the Board received a copy of the Direction and did not comply with its requirements.
That being said, we accept Mr. Wakely's assertion that common law principles of procedural fairness attach to an exercise of authority under subsection 9(2). This must however, be seen in the context of the nature of the power in question.
Section 9 is an emergency authority. It exists to permit the Commission to respond quickly where the safety of the public is at risk either because of inadequate police coverage or unlawful conduct on the part of police officials.
On March 28, 1996 the Commission received a formal statement from the Chief of Police of the Wallaceburg Police Service indicating that, given the layoff of three employees, he was "unable to ensure the safety and security of the members of this community and other members of this police service". This alone was sufficient foundation for action under subsection 9(2).
Accordingly, we are satisfied with the propriety of issuing the Direction of March 29, 1996. However, on reflection, we believe that the Direction should have contained an opportunity for the Board to respond to the finding. This conclusion flows from our understanding of the logic of the Supreme Court of Canada in Cardinal. This does not necessarily mean a formal hearing or proceeding, but rather a summary and time limited opportunity to provide an explanation or answer to the essential concerns.
In this regard, we wish to make clear that in the future when a Board receives such a Direction its primary obligation is to comply. In the same manner that chiefs of police are required to obey the lawful directions of their boards and police officers are required to obey the lawful directions of their chiefs, board members are obliged to obey the lawful direction of the provincial civilian agency responsible for municipal police oversight.
If after complying, Board members still take issue with the Direction or the finding upon which it is based, they should take advantage of the opportunity which will be provided to respond. Failing this, there is the remedy of judicial review.
For the above reasons, we do not propose to sanction the Board with respect to the first count.
The second allegation relates to the Board's failure to follow the requirements of section 40 of the Act. In this regard, our assessment of the evidence, relevant law, and submissions of counsel have led us to a number of conclusions.
First, the employees in question were laid off and not the subject of a probationary termination under section 44. This is clear in the actual notices which they received on March 22, 1996. Even if this were in doubt, probationary termination under section 44 was not an option available to the Board on the facts of this case.
The application of section 44 is restricted to "police officers". The three employees in question are not "police officers". They are two cadets and a civilian third class communicator. Under subsection 31(1)(a) of the Act, it is the Board who appoints members of the Service. The Board must be deemed to have knowledge of the status of individuals whom they appointed just a few months prior to these events.
As well, it is evident to us that probationary termination under section 44 can only take place for cause. There must be a demonstration that the probationary employee has failed to fulfil the expectations of the position in a competent and diligent manner. There is no suggestion of that in this case. Indeed, the layoff notices of March 22, 1996 make a point of commenting on all three employee's fine employment record.
That then raises the application of section 40 to the facts of this case. To our mind, two elements must be in place before that section comes into play. These are:
- membership in a police force
- termination for the purposes of reducing the size of that force (as opposed to termination for disciplinary reasons or failure to meet probationary requirements)
Some assistance, in assessing the application of these requirements can be found in the Act. The term "member of a police force" is defined by section 2 to mean "a police officer, and in the case of a municipal police force includes an employee who is not a police officer". To clarify this matter further, subsection 51(2) of the Act states that "a police cadet is a member of the municipal police force". Thus, it is evident that section 40 applies to both cadets and civilian employees.
Given this, Mr. Wakely urges upon us that the layoffs in question were only temporary (and thus would not constitute a "termination") and not undertaken for the purposes of reducing the size of the Service. We have great difficulty with these assertions.
First, the actual notices to the employees in question state that the "period of layoff will be indefinite". There are vague offers of hope that this will not turn out to be the case, but this hope is contingent on the occurrence of a series of events outside the control of the Board. Even this is well qualified. As Mr. Wesley and Mr. Tack stated in their letter of March 22, 1996 to the Minister "Once the province completes its police services review we will rehire if financially able to do so".
In our view, given the language of the notice and the speculative nature of the promises of recall, the actions of the Board in this case constituted de facto termination of the three employees in question for the express purposes of reducing the size and therefore the payroll of the Service.
Even if we felt that the layoffs were to clearly be for a limited period of time, we believe that the application of section 40 would not be avoided. In Stratford the Commission was asked to consider whether or not an application under section 40 was required for a proposed layoff of three civilian communicators. At pages 6 and 7 of this decision the Commission stated:
Having decided that the thrust of Section 40 is the abolition or reduction in size of a police force, we are led directly to the requirement in Section 4(1) of the Act that the municipality provide "adequate and effective police services in accordance with its needs". Whether the reduction is characterized as temporary or permanent, layoff or termination, it may affect the adequacy or effectiveness of policing in the community. The Section requires that this Commission examine that issue.
It may seem strange to some that severance pay is to be considered for people who are laid off as opposed to people who are dismissed. The answer to this is that the arbitrator, in making a finding with respect to severance pay, will weigh all the factors including notice, length of layoff, probability of recall, and benefits retained during the layoff period, such as seniority, pension accrual, health coverage, etc.
This Commission concludes that it has jurisdiction under Section 40 of the Police Services Act whether a reduction in size of a police force is to be accomplished by severance or layoff ...
In our view this wording acknowledges the application of section 40 to "temporary layoffs" of time limited duration. We adopt this conclusion and the logic on which it is based.
This then leads to the question of the state of mind of the Board members. Mr. Wakely argues that the Board had an honest belief that they had the necessary authority to act as they did. Our assessment of the evidence does not support this conclusion.
There is little doubt that the Board was advised on numerous occasions about the application of section 40 to their proposed layoff plans. They were told by the Association in January. They received a copy of the Association's letter to the Commission with respect to the motion of February 8, 1996.
If there was any doubt prior to this time, the Board was told clearly and directly by Police Services Advisor Maurice Hodgson, in his correspondence of February 12, 1996 "that the Board should not take unilateral action in downsizing the Wallaceburg Police Service without requesting a Section 40 hearing of the OCCPS". Further, we accept Mr. Hodgson's testimony that he reiterated this advice to both Mr. Tack and Mayor Wesley and made it clear that section 44 did not apply to the proposed action.
Given this, we cannot find that the Board had a genuine and honest belief that they had the legal authority to act as they did. Indeed, they acted in the face of clear information to the contrary.
Even assuming, for the sake of argument, that the Board had some notion that section 44 might apply to the facts of their case, they clearly knew there was an issue with respect to section 40. That being the case, they would have had a duty and obligation to ascertain the proper state of the law prior to acting. They did not. Ignorance of the law is no excuse.
Subsection 25(5) of the Act provides that board members can be sanctioned for misconduct, or failure or incapacity to perform their duties in a satisfactory manner.
The Act does not specifically define what constitutes "misconduct" on the part of a board member. However, some assistance in this regard can be found in Black's Law Dictionary. Page 999 of the 1990 edition of that publication defines the term "misconduct in office" as:
Any unlawful behavior by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder has no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.
In our view a wilful failure to abide by the provisions of the Act would constitute misconduct. Further, any board that undertake significant actions respecting its service, being wilfully blind to the provisions of the Act would also be guilty of misconduct. Certainly, it could not be said that board members acting in either fashion would be performing their duties in a satisfactory manner.
All board members have an obligation to respect, uphold and follow the law. While this is true for every citizen, it is even more so for men and women who have the legislated responsibility for ensuring "law enforcement and crime prevention" in their community.
Indeed, section 32 of the Act requires that "before entering on the duties of office, a member of a board shall take an oath or affirmation of office ..." This oath is found at R.R.O. 1991, Chap. 144. It reads:
I solemnly swear (affirm) that I will be loyal to Canada, that I will uphold the Constitution of Canada and that I will, to the best of my ability, discharge my duties as a member of the .... Police Services Board faithfully, impartially and according to the Police Services Act, 1990, and any other Act, and any regulation, rule or by- law ...
This is a significant and unqualified commitment. In our view, it has not been met in this case.
We conclude that this Board's actions with respect to section 40 constitute both misconduct and a failure to perform duties in a satisfactorily manner.
This conduct cannot be excused by lack of proper advice or information. It is not mitigated by lack of experience. The Board unilaterally reduced the complement of its Service a full 10% in what appears to have been a headlong rush to achieve an arbitrarily imposed savings target. This was done in a particularly aggressive and confrontational fashion.
It would seem that the Board saw the provisions of the law designed to ensure consistency of policing service across the province as a hindrance to its stated purpose. Given this, it chose to bypass the process put in place by the Act to deal with such situations. This in our view was exacerbated by a failure to clearly and directly consult with the Chief as required by subsection 31(1)(b).
We can sympathize with the great difficulty, frustration and even anguish that may arise in dealing with serious financial constraints. However, this can never be an excuse for lawless behaviour. Rather, it calls for careful thought, a proper understanding of the law, creativity, cooperative effort, a willingness to accept advice and the highest levels of honesty and integrity. As hard as this may be in some situations, the safety of the public calls for no less.
In our view the behaviour of the Board in this case does not meet this standard. Neither, have we received any meaningful acknowledgement from the Board to suggest that they appreciate the seriousness of this matter or their role in it. As such we are of the view, that the only possible penalty in this situation is removal.
Accordingly, pursuant to the authority vested in us by subsection 25(5) of the Act we remove Mr. Ron Tack, Mr. Jeff Wesley, Mr. Max Heath, and Ms. Wendy Murru from their positions as members of the Wallaceburg Police Services Board. If the appointment of Mr. Richard Foster had not expired, we would have made a similar decision with respect to his appointment.
Further, we would request that pursuant to subsection 25(8) of the Act, municipal council and the Lieutenant Governor in Council appoint the necessary replacements so that a new board can be properly reconstituted.
DATED THIS DAY OF JUNE, 1996.
Murray W. Chitra, Chair
Karlene J. Hussey, Member
Bob Saracino, Member