OCPC#12-07
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED
BETWEEN:
PROVINCIAL CONSTABLE TERRY RICHARDSON
APPELLANT
-and-
ONTARIO PROVINCIAL POLICE
RESPONDENT
DECISION
Panel: David C. Gavsie, Chair
Dave Edwards, Vice Chair
Hearing Date: May 3, 2012
Hearing Location: Toronto, Ontario
Ontario Civilian Police Commission
250 Dundas Street West, Suite 605
Toronto, ON M7A 2T3
Tel: 416-314-3004
Fax: 416-314-0198
Website: www.ocpc.ca
Appearances
Brian Lawson, Counsel for the Appellant
Norman W. Feaver, Counsel for the Respondent
Introduction
- Constable Richardson (also the “Appellant”) brought an appeal in relation to certain actions involving him taken by the Ontario Provincial Police (“OPP”). The purpose of this Motion is to determine the Commission’s jurisdiction. The Appellant’s position is that the Commission does have jurisdiction. The Respondent’s position is that the Commission does not.
Decision
- For the reasons set out below, the Panel:
a. grants the Motion;
b. dismisses the appeal presently before the Commission, which is brought under section 87(1) of the Police Services Act, R.S.O. 1990, C.P. 15, as amended (the “Act”), as premature, and without prejudice to the Appellant’s right to appeal from the final decision of a hearing officer following a hearing into the alleged misconduct which forms the subject matter of this proceeding;
c. strikes down the Record of Informal Discipline against the Appellant;
d. invokes section 78(1) of the Act and directs the Commissioner of the OPP1 to hold a hearing under section 76(9) into the alleged misconduct of the Appellant as set out in the Commissioner’s Notice of Internal Complaint dated April 19, 2010 (the “Internal Complaint”); and
e. orders that the OPP take no further action to implement any penalty (including the restitution requested) related to the alleged misconduct set out in the Internal Complaint.
Background
As the Panel had only a sparse and incomplete record, the following background material is taken from the factums of the parties.
Constable Richardson received the Internal Complaint from the Professional Standards Bureau of the OPP on April 19, 2010. On July 29, 2010 the Appellant accepted Informal Discipline (the “Informal Discipline”) wherein the penalty for Neglect of Duty for not having engaged in “meaningful work” during November 18, 2010 to January 31, 2010 was a forfeiture of 24 hours from his overtime bank.
Subsequently, the OPP informed the Appellant that the OPP would be taking steps to recoup 34 days for which it determined the Appellant could not account for his time. According to the Respondent’s factum, this occurred at a meeting held on July 27, 2010, whereas according to the Appellant’s factum, the meeting occurred on August 30, 2010. In addition, the Appellant disputes the number of days he was not able to account for his time.
On August 30, 2010 the OPP transferred the Appellant to permanent detachment uniform duties.
The Appellant filed a grievance dated September 21, 2010 under his Collective Agreement challenging the OPP’s earlier decision to permanently reassign him to detachment uniform duties and to have him forfeit 34 days’ wages.
Arbitrator Abramsky, by her decision dated December 15, 2011, determined that she did not have jurisdiction to deal with the matter. She concluded that the dispute is disciplinary in nature and is to be dealt with under Part V of the Act.
The Appellant subsequently appealed to the Commission alleging that the request for restitution of the 34 days pay and the transfer were also disciplinary in nature. He requested an order that the discipline was imposed contrary to the provisions of Part V of the Act.
Alternatively the Appellant argued that the penalty was excessive, and in the further alternative he requested an order striking down the Record of Informal Discipline and remitting the entire matter to a hearing.
The Respondent argued that the Commission does not have jurisdiction to hear this matter and that both the transfer and recouping of 34 days pay were administrative in nature, and hence not subject to appeal to the Commission.
The Commission directed that the Appellant bring a Motion to determine the jurisdiction of the Commission.
The Motion
The Panel heard the parties’ motion concerning the Commission’s jurisdiction on May 3, 2012. At the commencement of oral argument the Chair cautioned counsel to restrict their argument to the issue of jurisdiction.
The Chair received confirmation from both counsel on the following:
There was no hearing, nor a decision as contemplated by section 87(1) of the Act.
The restitution of 34 days pay which the OPP indicated it wanted to recoup from the Appellant is in respect of the same 34 days referred to in the Internal Complaint.
Subsequent to the resolution of the Informal Discipline Constable Richardson was transferred to uniform detachment duties.
Payment by the Appellant of the 34 days pay to the OPP had not yet occurred.
Appellant’s Submissions
Mr. Lawson asserted that the transfer and the request for payment of 34 days pay were quasi-discipline in nature and therefore the Commission had jurisdiction to deal with this appeal.
He acknowledged the difficulties inherent in this case. In the absence of a hearing and the findings of fact which a hearing officer’s decision would contain, he asserted that the Commission should order the production of affidavits and cross-examination thereon. He noted that the Commission had ordered such a process in Sergeant David Holder and Ontario Provincial Police (May 31, 2002, OCCPS).
He urged the Panel to adopt the approach enunciated by the Supreme Court of Canada in Regina Police Association Inc. and City of Regina Board of Police commissioners 2000 SCC 14, [2000] 1 S.C.R. 360 (S.C.C.). In that case the officer resigned rather than face disciplinary action. He later withdrew his resignation, but the Chief of Police refused to accept the withdrawal. A grievance was filed under the collective agreement. The question was whether the arbitrator had jurisdiction.
The Supreme Court stated, at para. 29, that, “[t]o determine the essential character of the dispute, we must examine the factual context in which it arose, not its legal characterization”.
Further, at para. 36, the Court stated, “... 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”.
Finally, at para. 35, the Court stated, “...even if The Police Act and Regulations do not expressly provide for the type of disciplinary action that was taken in the case at bar, the action may still arise inferentially from the disciplinary scheme which the legislature has provided”.
Mr. Lawson argued that in determining jurisdiction one must first determine the essential character of the dispute. In his view the transfer and the request for restitution of 34 days pay arose inferentially from the discipline initiated by the Internal Complaint and therefore the matter falls within the Commission’s jurisdiction. Only after making this determination should the Panel examine the issue of timeliness (ie., of compliance with the time periods set out in Part V of the Act.).
He asserted that there were two possible disciplinary processes. One process, which he termed a “legal” discipline process, is one which follows the procedures laid out in the Act. “Legal” discipline, being founded in the Act, requires strict adherence to the procedural aspects described in the Act, including timeliness.
Discipline which follows the scheme described in the Act requires that all parties comply with the prescribed timelines. For example, an appeal under section 87(1) of the Act must be filed within 30 days “of receiving notice of the decision made after a hearing held under subsection 66(3), 68(5) or 76(9)...” However, both parties acknowledge that a hearing was not held, nor was a decision rendered in this matter. Therefore, as the precondition to the invocation of section 87(1) had not been satisfied, this matter could not be an appeal under that section.
Mr. Lawson described the second process as “illegal” in the sense that the disciplinary process did not comply with the mandatory provisions of the Act. He asserted that, as this was an appeal of “illegal” discipline, the time limits contained within the Act are not relevant.
He suggested that the Commission’s jurisdiction is derived from the case law and the Act generally. He noted that if the Commission declined jurisdiction, then the Appellant would be left without a forum to contest the OPP’s actions.
He highlighted that in Regina Police Association, supra, the Supreme Court dealt with a matter which was 4 years old. The Saskatchewan Police Act contained a provision which required the officer to file an appeal within 30 days of receiving notice of the decision, and yet the Court stated:
In my view, the Commission has the power to determine its jurisdiction in the case at bar. Should Sgt. Shotton apply for an appeal, it is my view that pursuant to a liberal interpretation of ss. 60 and 61 of The Police Act,
which is consistent with the approach set out in Weber, supra, the Commission has jurisdiction to hear his dispute. Para 38 [emphasis added]
- In summary, Mr. Lawson asserted that the essential character of this dispute is disciplinary, and the Commission has jurisdiction under Part V of the Act. The Commission should interpret the Act liberally to find its jurisdiction. In the absence of a factual record, the Commission should order the production of affidavits and cross-examination thereon to provide the Commission with a proper record for it to determine the appeal.
Respondent’s Submissions
Mr. Feaver asserted that two elements were relevant in determining the Commission’s jurisdiction: time and subject matter. Further, the timeliness of the appeal must be analyzed first. If the appeal is out of time, that settles the matter. The subject matter is irrelevant at that point.
He noted that in Durham Regional Police Services Board and Durham Regional Police Assn. (Watts)(Re) 2000 CanLII 50095 (ON LA), [2000] 95 L.A.C. (4th) 323 paras. 11 and 12 the Arbitrator concluded that he did not need to determine the nature of the dispute prior to determining jurisdiction and compliance with applicable appeal periods.
Mr. Feaver argued that no matter which date one selected-----the date of the Appellant’s acceptance of the Informal Discipline, the date when the OPP requested the Appellant make restitution of 34 days pay, or the date when the Appellant was advised of the transfer----all appeal periods prescribed in the Act have expired. The Commission is therefore without jurisdiction.
He asserted that the Supreme Court of Canada in Regina Police Association, supra, at para. 38 was stating that the Commission had the jurisdiction to determine the timeliness of the appeal. It was not directing that the 30 day appeal period should be ignored.
He submitted that the request for restitution of the 34 days pay and the transfer are administrative matters and not disciplinary in nature.
It is the OPP’s position that at the time that the Appellant accepted Informal Discipline, he was aware that in addition to the penalty of 24 hours forfeiture of pay, the OPP required restitution of the 34 days pay.
He submitted that a transfer could in certain circumstances be considered to be disciplinary in nature. However, in the instant case, the transfer did not occur at the time of the Informal Discipline; it was not disciplinary in nature and fell within the management rights of the OPP.
In summary he asserted that the Commission has no jurisdiction to hear the appeal as the Appellant failed to file his appeal within the appropriate time period and, secondly, the subject matter of the appeal was not disciplinary in nature. He requested that the Panel dismiss the Motion.
Reasons for Decision
Three issues arise on this motion:
Does this Commission have jurisdiction where an Appellant alleges that the chief of police has imposed discipline without complying with Part V of the Act?
If the answer to question #1 is positive, is the dispute between the Appellant and the OPP disciplinary in nature?
If the answer to question #2 is positive, what is the appropriate disposition of this matter?
It is clear that discipline may only be imposed upon a police officer in compliance with Part V of the Act. Indeed, this Commission has found that a failure of the chief of police to follow the procedures imposed by Part V constitutes misconduct: see, Chief Bruce Davis of the South Simcoe Police Service (September 8, 2011, OCPC).
The Supreme Court of Canada has also provided direction for determining whether actions are disciplinary in nature. “...We must examine the factual context in which it arose...” We are directed to take “...a more liberal interpretation of the scheme governing the relationship between the parties, emphasizing that a dispute could arise either expressly or inferentially from that scheme...”: Regina Police Association, supra, at paras. 29 and 34.
The failure of the chief of police to follow the appropriate procedure is not a bar to 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”: Regina Police Association, supra, at para 36.
The Supreme Court concluded that “...the legislature has shown its intention to have all matters relating to discipline governed by The Police Act and Regulations. It has attempted to provide a comprehensive scheme for both the investigation and adjudication of such disputes.”: Regina Police Association, supra, at para. 34.
The Ontario Court of Appeal in Re: Abbot and Collins (2003), 2003 CanLII 46127 (ON CA), 64 O.R. (3d) 789 (Ont. C.A.), at para 27 concluded, “ I see no basis on which to distinguish the analysis and conclusion reached by the Supreme Court in the Saskatchewan case from this case and the Ontario scheme for police discipline.”
The fact that the Commission is a creature of statute must govern the “liberal interpretation” of the Act to insure that violence is not done to the Act and the intention of the Legislature. The Supreme Court impliedly acknowledges this restriction when it clarified that the purpose of avoiding formalistic interpretations of the provisions of the Act is that to do otherwise “...would deny the Commission jurisdiction where it was clearly the intention of the legislature that the Commission hear the dispute”. Regina Police Association, supra, at para. 34.
Based upon the foregoing it is clear that this Commission has jurisdiction where discipline is imposed upon a police officer and “... 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...” Regina Police Association, supra, at para.
Accordingly, the first question is answered in the affirmative.
Turning to the second question: Is the dispute between the Appellant and the OPP disciplinary in nature?
In the absence of a hearing under section 76(9) and the attendant record, the Panel’s task is a difficult one. The parties have, however, agreed upon several important facts. There was a Notice of Internal Complaint, an Investigative Report and Informal Discipline. The 34 days pay for which the OPP requires restitution are in respect of the same 34 days which were the subject of the Informal Discipline and the Internal Complaint. Sometime after the Informal Discipline was effected the Appellant was transferred to uniform detachment duties.
There is, however, a dispute as to the nature and purpose of the transfer. The Appellant alleges it was disciplinary in nature; the OPP argues that it was an administrative matter. There is a similar dispute with respect to the 34 days pay.
Based upon these facts and the direction of the Supreme Court we conclude that the matters in dispute arose “either expressly or inferentially from” the disciplinary scheme and therefore they are disciplinary in nature.
The second question is answered in the affirmative.
We therefore turn to the third question: What is the appropriate disposition of this matter?
While balancing the Supreme Court’s direction to interpret the Act liberally with the reality that the Commission is a creature of statute, we must decide our jurisdiction and the appropriate disposition of this matter.
Given the material events occurred after October 19, 2009, our appellate jurisdiction is found in section 87(1) of the Act. Both parties concede that notice of a decision after a hearing as contemplated by that subsection has not been given to the Appellant.
The legislative intent of that section 87(1) is clear. The Commission is the body to which a police officer or a complainant may appeal a hearing officer’s decision based upon the written decision and the record of the hearing. Indeed section 87(5) of the Act provides that the appeal will be on the record, subject to the Commission’s discretion to receive new or additional evidence.
Clearly, (subject to certain exceptions which are enumerated in the Act), the Legislature did not intend for the Commission to be the body of first instance to hear disciplinary matters. To conclude that, in this disciplinary matter, the Panel has jurisdiction to gather evidence, make findings of fact and rule on the substantive aspects of this matter would be inconsistent with the plain meaning of these provisions of this Act and the clear intent of the Legislature.
However, the Supreme Court has advised that the Legislature “...has shown its intention to have all matters relating to discipline governed by The Police Act and Regulations.”: Regina Police Association, supra, at para 34.
We have concluded that the nature of this dispute is disciplinary. The information before us on this motion, including the facts confirmed by counsel listed on page 4, makes it clear to us that this is still a “live” dispute.
As directed by the Ontario Court of Appeal at paragraph 30 of Abbott v. Collins, supra., we must now decide the Commission’s jurisdiction with respect to this dispute. The Panel notes that this dispute was initiated by the Internal Complaint in April, 2010. In determining the nature of the Commission’s jurisdiction over this dispute we will apply a liberal interpretation of the provisions of Part V of the Act, taking care not to do violence to the intent of the Legislature.
We believe that section 78(1) of the Act is relevant to this matter:
The Commission may, in respect of a complaint made by a chief of police under section 76 ... at any stage in the complaints process direct the chief of police... to deal with the complaint as it specifies or assign the review or investigation of the complaint or the conduct of a hearing in respect of the complaint to a police force other than the police force to which the complaint relates.
Section 78 of the Act provides the Commission with broad oversight duties and powers in respect of internal complaints made by chiefs of police and police services boards. We find that the purpose of this section is to enable the Commission to ensure that disciplinary matters initiated by internal complaints are resolved fairly and in accordance with the processes mandated under Part V of the Act.
In our view Part V mandates that an internal complaint may be resolved in one of two ways: by agreement between the officer and his or her chief, or on the completion of the hearing process set out in Part V. On the incomplete record before us on this motion, including the facts confirmed by counsel, it is clear that this disciplinary matter which was initiated by the Commissioner’s Notice of Internal Complaint has not been resolved as contemplated by the Act.
As a result, in the extraordinary circumstances of this case, as found in the sparse record on this motion, together with the facts confirmed by counsel, and wishing to avoid additional delay and expense, having found that the Commission has jurisdiction under section 78 of the Act, the Panel has decided to exercise this jurisdiction and directs that this complaint be dealt with as specified.
Natural justice dictates that both the Appellant and the OPP must have an opportunity to present their positions on the issues in dispute in an appropriate forum.
The Legislature has directed (with certain exceptions) that the appropriate first instance forum for disciplinary matters is a hearing held by the chief of police under section 76(9) of the Act. This forum provides procedural fairness to both parties. Evidence can be presented; that evidence can be tested through cross-examination. A hearing officer will make a decision; the police officer will receive a notice of that decision following the hearing. The Commission’s section 87(1) appellate jurisdiction will be preserved. All parties will benefit from procedural fairness and the natural justice which the statutory scheme provides.
By following that process this matter can be brought into concordance with the statutory disciplinary scheme provided by the Act.
Accordingly, the Panel:
a. grants the Motion;
b. dismisses the appeal presently before the Commission, which is brought under section 87(1) of the Act, as premature, and without prejudice to the Appellant’s right to appeal from the final decision of a hearing officer following a hearing into the alleged misconduct which forms the subject matter of this proceeding;
c. strikes down the Record of Informal Discipline against the Appellant;
d. invokes section 78(1) of the Act and directs the Commissioner of the OPP to hold a hearing under section 76(9) into the alleged misconduct of the Appellant as set out in the Internal Complaint; and
e. orders that the OPP take no further action to implement any penalty (including the restitution requested) related to the alleged misconduct set out in the Internal Complaint.
DATED AT TORONTO THIS 23rd DAY OF May, 2012
David C. Gavsie Dave Edwards
Chair, OCPC Vice-Chair, OCPC