Holder v. Ontario Provincial Police, 2002 CanLII 76736

ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

REASONS FOR DECISION

Citation: Holder v. Ontario Provincial Police, 2002 ONCPC 6

SERGEANT DAVID HOLDER

Appellant

and

ONTARIO PROVINCIAL POLICE

Respondent

Presiding Members:

Karlene J. Hussey, Member

Sam Cancilla, Member

Appearances:

Ms. Kelly Dawtrey, Counsel for the Appellant

Steven M. Boorne, Counsel for the Respondent

Hearing Date: Tuesday, December 4, 2001

Sergeant Holder brings this appeal under section 70 of the Police Services Act, R.S.O. 1990, c. P. 15 (the “Act”). He alleges that he was harassed by the Ontario Provincial Police (the “O.P.P.”), causing him to relinquish his employment, and that the O.P.P. used the Crown Attorney to assist in doing so through the threat

of criminal prosecution.

As a result, Sergeant Holder alleges that his resignation from the O.P.P. was involuntary, that he was constructively dismissed, and that he was denied his statutory right to a hearing under section 64 of the Act.

Preliminary Issue:

The preliminary issue to be decided at this hearing is whether the Commission has jurisdiction to hear the Appeal.

Background:

Sergeant Holder is 52 years of age. He started his employment with the O.P.P. in July of 1971, and was stationed at the Glencoe Detachment. He was promoted to the rank of Sergeant in March 1991. He had an unblemished record for twenty- seven and a half years.

On January 25, 1999, the Appellant’s daughter-in-law, S1, contacted the O.P.P. about an incident involving her husband, J, Sergeant Holder’s son. During an interview, she told the police about an earlier incident of domestic violence which had occurred in June 1997 when J fired five shots into the door jam and ceiling of a room in their home where she was hiding with their one and a half year old son. S fled the home, taking her children. She later returned to the home and discovered that J had taken sleeping pills in an apparent suicide attempt.

S told the O.P.P. that she had called Sergeant Holder (off duty) who came to the home. She told Sergeant Holder about the events involving the weapon. Sergeant Holder was alleged to have placed the weapon in his personal vehicle, but did not report the incident to the police or turn over the rifle.

On May 13, 1999, Sergeant Holder was charged with one count of willfully obstructing justice contrary to section 139(2) of the Criminal Code of Canada. On May 14, he was suspended from his duties as a result of the criminal charge.

On June 11, 1999, Sergeant Holder was served with Notices of Hearing for two charges of discreditable conduct contrary to section 2(1)(a)(xi) of the Code of Conduct found at O. Reg. 123/98. One of these charges related to the 1997 incident involving the weapon. The Appellant was notified that the prosecutor for the disciplinary hearing was seeking his dismissal from the force. One of the charges was stayed. The other, involving the weapon incident, was adjourned pending the outcome of the criminal trial. No disciplinary hearing ever took place.

On June 14, 1999, Sergeant Holder submitted a letter to the Western Region Headquarters of the O.P.P. stating that he intended to retire under the Factor 80 programme and that his last day of employment would be August 31, 2000.

On or about September 20, 1999, the Crown prosecutor advised Sergeant Holder that the Crown would withdraw the criminal charge against him if he agreed to resign his employment with the O.P.P.

On September 27, 1999 Sergeant Holder wrote a letter to the Commissioner of the O.P.P. stating:

RE: Retirement the Factor 80 Programme

Be advised that I intend to take advantage of the above. This letter serves to confirm that I will retire from the Ontario Provincial Police effective Friday December 31st, 1999.

Sergeant Major Hutchingame, Manager, Professional Standards Western Region, received this letter, on October 26, 1999, from Mr. Norman Peel, Sergeant Holder’s legal counsel.

1The names of all non-police personnel have abbreviated

On November 10, 1999, Sergeant Holder notified the Ontario Pension Board of his decision to terminate his membership, stating as his reason: “Retirement on immediate Pension”. Sergeant Holder received and accepted a sum of money in severance pay, to which he was entitled as a retiree under Factor 80 and which he directed to be rolled over into an RRSP account. He has also received and accepted payment for unused vacation credits, overtime and lieu days not taken.

On December 31, 1999, Sergeant Holder officially retired from the O.P.P and on January 11, 2000, the Crown Attorney withdrew the criminal charges pursuant to the agreement. On February 7, 2000, the remaining disciplinary charge was withdrawn by the O.P.P. for lack of jurisdiction (i.e. Sergeant Holder was no longer employed by the O.P.P.).

On March 20, 2000, Sergeant Holder commenced an Appeal pursuant to section

70 of the Act.

The Law:

Section 70 of the Act governs the conditions under which the Commission may hear an appeal. It provides:

70. (1) A police officer or complainant may, within 30 days of receiving notice of the decision made after a hearing held under subsection 64(7) or 65(9), appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based ….

(5) A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.

The Appeal:

On October 30, 2000, the parties appeared before us to determine the preliminary issue of whether the Commission has jurisdiction under the Act to hear the Appeal.

At the commencement of argument, Counsel for the Appellant objected to the inclusion of the affidavit of Sergeant Major Hutchingame in the Record of the O.P.P. filed with the Commission. Counsel for the Appellant argued that the affidavit was new evidence and that the Respondent failed to comply with the Commission’s Rules of Practice, that is, there was no motion by the Respondent for an application to submit new evidence in compliance with rule 13.

As set out above, section 70 (5) of the Act allows the Commission to receive such evidence as it deems just. The Rules of Practice have been put in place to provide an orderly submission of such evidence. However, rule 3.4 provides that the Commission may at any time waive or vary any of these Rules on such conditions, as the Commission considers appropriate.

The matter before us is unique. There has been no disciplinary hearing and therefore no factual record. It is necessary for us to be properly informed of what had occurred for a decision to be made in this matter. Therefore, we ruled that this Appeal would be adjourned to allow the Appellant to file a responding affidavit and for the witnesses to be cross-examined with respect to the facts in dispute. In particular, the parties were instructed to limit cross-examinations to whether Sergeant Holder was a serving police officer who was the subject of a disciplinary decision, which was appealed within the timeframe contemplated by the Act.

The parties submitted the transcripts of the cross-examinations and this proceeding was re-convened on December 4, 2001.

Appellant’s Position:

The Appellant argues that his decision to take early retirement was not voluntary, that it was done under duress and coercion and that the criminal and disciplinary charges were laid at a time when he was suffering mental and emotional

distress.

He alleges he suffered alienation and harassment at the hands of his superiors who intentionally schemed to procure his resignation. Examples of these allegations include the following:

(a) the lock on his personal locker was replaced without his knowledge;

(b) his briefcase was opened and his service handgun and recent notebooks removed without notification or explanation;

(c) surveillance was placed on his home during visits with his grandchildren;

(d) he was suspended and required to report to the Strathroy detachment, 40 km from his home, despite the fact that he lived and worked in Glencoe; and

(e) he was required to sign in the same book with parolees and individuals on bail release conditions.

Counsel for the Appellant argued that a resignation obtained under threat of criminal prosecution coupled with undue pressure or an abuse of power and authority by an employee, may not be considered voluntary.

In this regard she cited: Re Head and Commissioner of the Ontario Provincial Police (1983), 1981 CanLII 1865 (ON CA), 40 O.R. (2d) 84 at 85 (C.A.) [Appeal to the S.C.C. dismissed, 1985 CanLII 77 (SCC), [1985] 1 S.C.R. 566] and Toronto (Metropolitan) Police Assn. v. Toronto (Metropolitan) Commissioners of Police (1978), 1978 CanLII 3406 (ON LA), 18 L.A.C. (2d) 7 [Application for Judicial Review dismissed]. Counsel for the Appellant submitted that if there is any evidence of constructive termination, the Commission must find that it has jurisdiction.

Counsel also argues that the dispute centers on discipline arising out of an internal complaint and the laying of charges of discreditable conduct pursuant to the Act, which provides a complete procedural code for the resolution of disciplinary matters, including the Appeal of a dismissal, whether explicit or inferential, and therefore it is within the Commission’s jurisdiction to hear and decide this dispute.

In support of this argument she cited the following: Regina Police Assn. v. Regina (City) Board of Police Commissioners [2000], 1 S.C.J. No. 15 (S.C.C.), Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995], 2 S.C.R. 929 (S.C.C.) and Toronto (Metropolitan) Police Assn. v. Toronto (Metropolitan) Commissioners of Police [1979], O.J. No.

424 (Ont. Div. Ct.).

The Appellant submitted that, given that this was not a case in which a decision has been rendered after a hearing held under section 67 (7) of the Act, he is not precluded from commencing an appeal outside of the 30 day limitation period set out in section 70 (1).

Respondent’s Position:

The O.P.P. submitted that the Commission lacks the jurisdiction to hear the Appeal since the mandatory pre-conditions set out in section 70 of the Act have not been met in the following respects:

1. Notice of the Appeal was not filed within 30 days of the “decision” and the Commission does not have the jurisdiction to extend the time limit.

2. There was no decision rendered after a hearing under sections

64(7) or 65(9) of the Act.

The Respondent submitted that the Appellant either resigned or retired and was not dismissed.

The test for making this determination has been articulated by the Courts and Arbitrators in the following cases: Brown and Betty, “Canadian Labour Arbitration”, paragraph 7:7100 at 7-272-3; McGavin Toastmaster Ltd. v. Ainscough et al. (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1, (S.C.C.); Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan; Police Association (1978), L.A.C. (2d) 7, (Adams), (application for judicial review dismissed, 22 L.A.C. (2d.)

63n (Div. Ct.); Re Miracle Food Mart Steinberg Inc. (Ontario) and United Food and Commercial Workers, Local 175 (1985), 1985 CanLII 5367 (ON LA), 19 L.A.C. (3d) 65 (Brunner) at pp.8-

9 (QL).; Re Canadian Liquid Air Ltd. and E.C.W.U., Loc 777 (1990), 35 L.A.C.

(4th ) 72 at p10 (QL); Conestoga College and Ontario Public Service Employment

Union (1988), 3 L.A.C. (th) 26 AT PP 4-5(Q.L.), (Swan).

The Respondent argued that the “decision” which the Appellant appeals was his own “decision” to retire. The Respondent urged that the date which should be used to calculate the commencement of the thirty day period should be September 20, 1999, when, at the meeting with Crown Attorney to resolve the criminal charge, Sergeant Holder, accompanied by his legal Counsel, advanced his intended resignation date from August 31, 2000, to December 31, 1999. The Notice of Appeal should therefore have been filed on October 19, 1999.

In the alternative, Counsel for the O.P.P. argued that the limitation period began to run on one of the following days:

1. September 27, 1999: when, by correspondence, Sergeant Holder confirmed his intention to retire, having had the benefit of legal advice. In this case the mandatory requirement for filing a notice of Appeal would have expired on October 26, 1999.

2. January 1, 2000: the first day after which he was no longer entitled to work for the O.P.P. In this case, the notice of Appeal should have been filed with the Commission by January 31, 2000.

3. February 2, 2000: the day the notice of hearing motion was withdrawn;

In the last scenario, Sergeant Holder would have been required to file his notice of Appeal by March 1, 2000. The notice of Appeal was, in fact, filed on March

20, 2000.

In support of these arguments the Respondent cited the following cases: Memis Sipar and Detective John Schertzer et al (O.C.C.P.S., Decision on preliminary motion, dated November 29, 1999), Hegney and Metropolitan Toronto Police Service (O.C.C.P.S., Decision on preliminary motion, dated January 29, 1998).

Aff’d 1999, O.J.2049 (Div. Ct.); and Farrell and Durham Regional Police Service

(O.C.C.P.S., February 11, 1999). Aff’d 1999, O.J.3985 (Div. Ct.).

Decision:

The issue to be determined is whether the Commission has jurisdiction to hear this matter. The Appellant faces a number of hurdles in order to establish that he is entitled to have his Appeal heard by the Commission. It is necessary to prove that he was dismissed as a result of a decision made by the O.P.P. on a disciplinary issue, and that an appeal was filed within the time frame contemplated by the Act. We find that the Appellant has failed to establish that

he has met these pre-conditions.

The facts of this case reveal that Sergeant Holder came to an agreement with the Crown Counsel on September 20, 1999, that the criminal charges against him would be dropped if he tendered his resignation to the O.P.P. effective December

31, 1999. Sergeant Holder gave written notice of his intention to resign, which was received by the O.P.P. on October 26, 1999, in the presence of his legal representative. He ceased being a member of the O.P.P. on December 31, 1999. He collected his severance package due to him under the terms of his retirement and has since been collecting his pension. He filed a notice of Appeal on March

20, 2000.

The Commission does not have jurisdiction to deal with persons who are not members of a police service and Sergeant Holder did not file a notice of Appeal

in sufficient time to stay what he characterizes as constructive dismissal. Counsel for Sergeant Holder argues that this is not a case in which a decision has been rendered under section 64(7) and therefore the Appellant is not precluded from commencing this appeal by the thirty day limitation period as required by section

70(1) of the Act.

In our view the Appellant cannot have it both ways. The Appellant cannot claim there was a decision to dismiss him either explicitly or by inference, and then claim there was no decision for the purposes of the limitation period, so that his appeal may be heard. If there was no decision, the Commission lacks jurisdiction to hear this matter. If there was a decision then it must have been effective as of a particular date, 30 days after which, the appeal was out of time.

Because the letter of resignation was accepted by the O.P.P. October 26, 1999, and because Sergeant Holder ceased being a police officer on January 1, 2001, his “dismissal” would have been effective at least as early as one of these two days. Whichever date is used, the limitation period was exceeded by the time the Appellant filed the notice of Appeal. The Appellant is obliged, by statute, to file a Notice of Appeal within thirty days. The Commission has no discretion to extend this period. On this issue alone this appeal fails for lack of jurisdiction.

Accepting, without deciding, that there was a “decision”, the issue of the limitation

period is therefore dispositive. In any event, in the view of the Commission, a

“decision” necessary to trigger the limitation period did not in fact take place.

Counsel for the Appellant has relied on Regina Police Association, supra.

in support of her argument that the essential character of this dispute arises, inferentially, from a disciplinary matter and so it falls within the ambit of the statutory scheme which deals with the disposition of disciplinary matters.

Without making a decision on the merits of the case but instead, dealing with the means by which the validity of a claim of dismissal for disciplinary reasons can be tested, we agree that the Commission has jurisdiction to hear all appeals

arising from a disciplinary issue whether or not they have followed the procedural requirements.

In Regina Police Association, supra. Bastarache J. stated at paragraph 36:

… it is clear that the legislature intended hearing officers and, if necessary, the Commission, would hear all appeals arising from the dismissal of members of the police force. In my view, the fact that a member may not be subject to an order for dismissal is not

sufficient to deprive the Commission of this jurisdiction. In addition, the fact that the Chief of Police may not have followed the procedural requirement that he provide written reasons for his decision is not sufficient to deprive the Commission of jurisdiction. The essential character of the dispute remained a disciplinary one, even if the Chief of Police did not follow the specific scheme in imposing a punishment. While it is not necessary in this case to decide whether the actions of the Chief of Police in refusing to accept Sgt. Shotten’s withdrawal of his resignation amounted to a dismissal, the Police Act must be interpreted liberally, to ensure

that all forms of dismissal, including constructive dismissal, may be appealed to the adjudicative body designated by the legislature.

However, to determine whether the dispute arises from a disciplinary matter we again are guided by paragraph 25 in which the Court held that:

In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties and not on the basis on how the legal issues may be framed…Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision- maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations.

The facts in this case, which are undisputed, reveal the Appellant, a seasoned police officer of thirty years, who had independent legal advice, decided to accept a resolution offered to him at the discretion of the Crown Counsel instead of

facing a criminal trial. There is no evidence that the O.P.P. had any part in his arrangement with the Crown Counsel and there is no evidence that the O.P.P. was ever consulted by the Appellant before he made this decision. His letter of resignation was provided to the O.P.P. by Sergeant Holder’s lawyer. We are convinced that this action was undertaken by the Appellant of his own free will.

Sergeant Holder confirmed his commitment to his decision to retire by making the necessary financial arrangements to take advantage of the benefits which ensued with early retirement under the Factor 80 programme. He accepted the financial package, part of the proceeds of which he rolled over into an RRSP, and has been collecting a pension since January 2000.

We find, therefore, that the issue in this case centers on an agreement to avoid a criminal matter and not, as in Regina Police Association, on a disciplinary matter and therefore, again, is not within the Commission’s jurisdiction.

We have therefore reached the conclusion that, based on the reasons outlined above, there is no right of appeal available to Sergeant Holder under the Act. He has failed to demonstrate that this matter arises from a decision on a disciplinary issue and, in any event, that such a decision was appealed within the statutory timeframe.

The Appeal is therefore dismissed as the Commission is without jurisdiction to hear it.