Leahy v. London Police Service, 2012 CanLII 102117

OCPC #12-02

ONTARIO CIVILIAN POLICE COMMISSION

IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O. 1990, C. P.15, AS AMENDED

Citation: Leahy v. London Police Service, 2012 ONCPC 2

BETWEEN:

CONSTABLE JONATHAN JAMES LEAHY

APPELLANT

-and-

LONDON POLICE SERVICE

RESPONDENT

DECISION

Panel: John Rodriguez, Member

Roy Conacher Q.C., Member

Hearing Date: December 13, 2011

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:

1. Andrew F. Camman, Counsel for the Appellant

2. Bruce K. Brown, Counsel for Respondent

Introduction

1. Constable Jonathan Leahy (the “Appellant’) appeals a finding of guilt on one (1) count of insubordination contrary to section 80(1)(c) of the Police Services Act, R.S.O. 1990, c.P.15, as amended, (the “Act”) and contrary to section 2 (1)(b)(ii), of the Code of Conduct set out as a Schedule to Regulation 123/98 enacted under the Act (the “Code of Conduct”). As well, the Appellant appeals the penalty of forfeiture of 24 hours imposed against him on June 24, 2011 by Superintendent (ret.) M.P.B Elbers (the “Hearing Officer”).

2. On May 20, 2010, the Appellant, a member of the London Police Service (the “Service”) was served with notice that a disciplinary hearing was to be held into his conduct. The notice set out a charge that the Appellant did not comply with a lawful order given by then Chief Faulkner thereby committing misconduct, namely, insubordination.

3. The charge was laid as a result of an investigation conducted by the Professional Standards Branch of the Service arising from a report by Constable Leahy’s immediate supervisor, Staff Sergeant Michael Eagen, that the Appellant had missed approximately 45 scheduled work shifts over a period of five months by switching such shifts with other police officers.

4. Staff Sergeant Eagen reported that he had received information that the Appellant was exchanging such shifts with other officers in order that he could continue with secondary employment in his home construction company. The supervising officer was instructed by his supervisor, Inspector William Chantler, to advise Constable Leahy that such switching of shifts was to cease.

5. The Appellant was not happy with the instruction and, in an interview with Inspector Chantler, he stated that policing was not his primary job or source of income.

6. The information confirmed by the Professional Standards investigator, Staff Sergeant Christopher McCoy, resulted in Chief Faulkner issuing two letters to the Appellant ordering him to provide information on his secondary employment by a fixed date (the “Orders”, or separately the “Order”). Both letters were responded to by the Appellant’s legal counsel denying that there was any obligation on the Appellant to comply as the Orders were not lawful. The requested information was not provided by the last fixed date of January 4, 2010.

7. On October 25, 2010, there was a disciplinary hearing into the allegation against Constable Leahy.

8. On November 8, 2010, the Hearing Officer rendered his decision finding the Appellant guilty of the charge of insubordination.

9. On June 24, 2011, the Hearing Officer issued his decision on penalty and imposed a forfeiture of twenty-four (24) hours pursuant to section 68 (1) (f) of the Act.

Decision

10. For the reasons set out below, we dismiss the appeal as to the finding of insubordination by the Hearing Officer. As counsel for the Appellant withdrew the appeal of the penalty, we make no decision as to the penalty.

Background

11. Constable Leahy is an experienced, hard-working 14 year veteran constable with an unblemished employment record working in the Service’s Uniformed Division. Staff Sergeant Eagen was his supervisor. In early November of 2009, Staff

Constable Leahy was switching with other officers in his section. From prior conversations with Constable Leahy, Staff Sergeant Eagan was aware that the Appellant had been taking time off to build homes in the London area. Constable Leahy owned the construction company. As a result of his concern, Staff Sergeant Eagen brought the issue to the attention of his superior officer, Inspector William Chantler.

12. A decision was made to tell Constable Leahy that he was not to switch any more shifts until further notice. In a memo to Inspector Chantler, Staff Sergeant Eagen noted that Constable Leahy had switched 45 scheduled shifts in a 5 month period.

13. There is a provision in the working agreement at the Service, article 8.07, formalized into a form referred to as NAN (No Accounting Necessary) (a “NAN form”) under which an officer of the Service can switch a shift with another in the same division, if approved by a superior officer and the applicant for the switch pays the replacement officer. Article

8.07 does not outline any policy limitations as to the number of shift switches but the NAN form outlines the process for

approval.

14. Staff Sergeant Eagen reported to Inspector Chantler that matters had reached a point where Constable Leahy was taking shifts off and officers were showing up to fill his shifts without the Staff Sergeant’s prior knowledge or authorization.

15. Inspector Chantler met with Constable Leahy on November

18, 2009 and, explained the intent of Article 8.07 of the Working Agreement which was to allow officers to switch shifts on a one-off or occasional basis, but it was not intended to be used frequently. In the conversation, Constable Leahy indicated that policing was not his primary job or source of income anymore.

Constable Leahy’s superiors, Chief Faulkner sent a letter to the Appellant dated November 23, 2009, ordering him to disclose details of his secondary employment in order to determine whether or not the Appellant was in compliance with section 49(1)(c) of the Police Services Act.

17. The Order issued by the Chief stated, inter alia:

I have received information that you are engaged in secondary employment in the field of contract construction work. While the nature of this work would not, in and of itself, necessarily conflict with your police duties, the concern of the administration is that the number of hours you are dedicating to this work may constitute full- time employment for another person, contrary to Section 49 (1)(c) of the Police Services Act.

The provisions of Section 49 of the PSA are quite clear. Where any of the sub-clauses of Section49 (1) may be contravened by the activity the member is undertaking, the member shall disclose full particulars of the situation to the Chief of Police (per Section 49(3)) (sic).

Therefore, I am ordering you to disclose the particulars of your situation pursuant to section

49(3) of the PSA. Please provide full disclosure to me of the number of hours per week you are working at this activity, as well as a total of the

number of hours you have spent on this activity

to this date, along with the wages you have earned, including a copy of your most recent personal and company income tax returns. I am allowing you three weeks to collect and collate your data. I will expect it in my office no later than December 17, 2009, at 12:00 hours.

18. Constable Leahy’s legal counsel replied to the Chief by letter dated December 16, 2009 and declined to provide the requested information on the basis that Constable Leahy had not contravened nor intended to contravene section 49 (1)(c) and therefore there was no obligation to disclose the information and there was no statutory basis for the request.

19. The Chief sent a second letter on December 18, 2009 to

Constable Leahy reiterating his Order of November 23,

2009. The Appellant was to reply by noon on January 4,

2010. At the same time the Director of Legal Services for the Service sent a letter to Constable Leahy’s counsel challenging the advice that had been given to his client. It also indicated that if Constable Leahy did not comply with the Order by January 4, 2010 at noon, he would be subject to disciplinary measures pursuant to the Act.

2011. The Appellant’s counsel sent a final reply letter on December

31, 2009, in which he indicated his belief that the Order issued by the Chief was not a lawful order, and that his

client was not obliged to respond to it.

21. Constable Leahy submitted a memorandum dated February

3, 2010, to Inspector Kevin Heslop. In this memo the Appellant indicated that the correspondence from his legal counsel, Stacey Ball, to the Chief constituted his (Constable Leahy’s) response to the Chief’s Orders.

22. The Chief of Police then charged Constable Leahy with misconduct, namely, insubordination.

23. The disciplinary hearing commenced on October 25, 2010.

Four witnesses testified, fifteen exhibits were filed in evidence and submissions were made by counsel. The

hearing continued on November 8, 2010 at which time the

Hearing Officer issued his decision finding the Appellant guilty of insubordination.

24. The hearing resumed on June 24, 2011 at which time the penalty decision was issued.

Appellant’s Submissions

25. Mr. Camman asserted that the issues on appeal boiled down to the answers to the following questions:

(1) Was the Chief’s Order in this case lawful?

(2) If part of the Chief’s Order was unlawful does it make the whole order unlawful?

(3) Is it the responsibility of the officer to parse out that part of the Order that is lawful and respond in order to avoid discipline?

Mr. Camman pointed out that there are no precedent cases that deal with this specific issue, that is, if one part of an order is unlawful, is the entire order unlawful.

26. Mr. Camman submitted that the request for income tax returns showing the amount of income does not advance the case of Constable Leahy being full time in another job. The income tax returns show income not hours worked. Therefore, according to Mr. Camman, that part of the Order was unlawful and had no statutory basis.

27. Mr. Camman agreed that part of the Chief’s Order was lawful, but he submitted that the onus was on the Chief to make his entire Order lawful. The request for personal and corporate tax records was an unlawful incursion into the privacy of the Appellant and was not a legitimate inquiry to determine the issue of the status of the Appellant’s secondary employment. He argued that there is no absolute discretion on the part of the Chief and the request must be based upon a legitimate purpose of carrying out a statutory function.

28. Mr. Camman submitted that the Hearing Officer erred by:

• misinterpreting the responses from the Appellant’s legal counsel as being a complete denial of any obligation to answer the Chief’s Order;

• failing to consider that the evidence in the response

letters and testimony of witnesses disclosed that the

Appellant had answered the lawful parts of the Chief’s

Order;

• ignoring the evidence in the lawyer’s letters and the evidence of the witnesses that the Appellant’s performance as a police officer had not been affected,

that there was no conflict of interest, that the Appellant

had not worked full time for another person, that not all of the exchanged shifts were to work on construction, that some shifts were switched for personal reasons such as family, hunting and playing football;

• overlooking the fact that the calculation of hours missed fell well below what would qualify as “full time work for another person”;

• improperly placing the onus on the Appellant to legally interpret the Chief’s Order and to parse out lawful orders from unlawful ones;

• failing to consider that the previous switching of all but eight of the shifts had been approved by Constable Leahy’s supervisor, Staff Sergeant Eagan, in accordance with the NAN policy and the Working Agreement within

the Service and that there was no express limitation in that policy on the number of shifts an officer could arrange;

• failing to consider that, in the Appellant’s performance evaluations, there was no indication of any violation of the Service’s policy regarding switching of shifts; and

• failing to consider that Constable Leahy honestly believed that his actions had been approved and accepted by the Service, and finding that the Appellant did not provide any explanation or lawful excuse for not responding

completely to the Order.

unlawful then the whole Order was unlawful and, as a result, the Hearing Officer’s decision should be set aside.

30. He argued that the Hearing Officer acknowledged that the Chief was overzealous in requesting the tax information but nevertheless held that the Order was lawful. Mr. Camman submitted that such an interpretation could lead to a conclusion that all orders issued by the Chief must be obeyed whether lawful or not.

31. Mr. Camman pointed to the statement of the Hearing Officer that the Appellant “must learn to complete orders and assignments when requested on time.” He submitted that the evidence disclosed that the Appellant was an exemplary officer with many commendations and positive performance evaluations and there was no evidence or suggestion that Constable Leahy could not complete assignments on time.

32. During his oral submissions, Mr. Camman indicated to the

Panel that the appeal of the penalty was withdrawn.

Respondent’s Submissions

33. On behalf of the Service, Mr. Brown agreed that the issue is whether or not the Order issued by the Chief in this case was a lawful order.

34. He argued that, under section 49 (1) (c) of the Act, it is clear that a police officer’s primary employment must be policing on a full time basis and not as secondary employment. If an officer becomes aware that an activity he has already undertaken may contravene section 49, he has a positive obligation to disclose full particulars to the Chief. Mr. Brown submitted that this was the case and the Appellant failed or refused to disclose the information as ordered.

35. Information on the number of hours worked at the secondary employment was essential to determine whether

Mr. Brown submitted that the information and documentation required by the Chief in his letters and ordered to be supplied by Constable Leahy were to assist the Chief in determining the Appellant’s compliance with section

49. He asserted that, having received the concerns expressed by Constable Leahy’s supervisory officers, the

Chief was under a duty to follow up and inquire of Constable

Leahy whether the activities undertaken by him constituted possible full time secondary employment.

36. Mr. Brown stated that, even if the Appellant had responded to the request for information regarding the number of hours worked per week and in total at the secondary employment, that would have assisted the Chief but the Appellant simply did not respond. The Appellant was under an obligation imposed by the provisions of section 49 and could have provided the information required by the Order and then filed a grievance regarding that part of the Order requiring wage and tax information. Mr. Brown referred to Constable Matthew Jeary and Waterloo Regional Police Service, (April

5, 2002, OCCPS).

37. Mr. Brown submitted that, while he agreed that income tax information is not determinative, yet the amount earned and hours worked would have been helpful to the Chief in determining whether Constable Leahy was in breach of section 49(1)(c) of the Act The Appellant could have answered the Order and would have been in compliance. Instead, the Appellant sent a memorandum to Inspector Heslop of the Service, dated February 3, 2010, that confirmed that his solicitor’s reply to the Chief, dated December 31, 2009, was his response to the Orders.

38. Mr. Brown argued that section 49(3) of the Act put the onus on Constable Leahy to satisfy the Chief’s Order, however, he chose not to obey the Order.

considered all relevant factors and made the appropriate finding that the Appellant was guilty of insubordination.

40. Therefore he requested that the appeal be dismissed.

Decision

41. It is now well established that the standard of review to be undertaken by the Commission on an appeal with respect to a Hearing Officer’s factual findings is reasonableness and with respect to interpretation of the law the standard is correctness. McCormick v. Greater Sudbury Police Service (2010), ONSC 270 (Ont. Div. Ct.), Law Society or Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1(Ont. C.A.).

42. The Supreme Court of Canada described the standard of reasonableness in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No.9 at para.47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable rational solutions. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

43. Past Commission decisions have spoken to our role on an appeal, noting that we are not to second-guess the decision of a hearing officer but rather to review the decision to determine whether the conclusions reached are reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and are articulated in a logical, intelligible and transparent manner. Precious and Hamilton Police Service, (2002), 3 O.P.R.1561; Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).

44. In certain limited cases it may be open to us to reach a different conclusion from the trier of fact. However, that must be based upon the strongest ground. We should only intervene if there has been an error in principle, or relevant factors have been ignored or there can be no other determination than that the conclusions of the adjudicator, as to the credibility of witnesses, cannot be reasonably accepted. Williams and Ontario Provincial Police (1995), 2

O.P.R. 1047 (OCCPS); Wilson and Ontario Provincial Police

(November 20, 2006, OCCPS), Favretto and Ontario Provincial Police (February 13, 2002, OCCPS) and Karklins and Toronto Police Service (September 25, 2007, OCCPS).

45. An appeal to the Commission is an appeal on the record.

Unlike the trier of fact, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to the Hearing Officer’s findings unless an examination of the record shows that the Hearing Officer’s conclusions cannot be reasonably supported by the evidence. Blowes-Aybar and Toronto (City) Police Service,

2004 Carswell Ont 1583 (Div. Ct.)

Statutory Framework

46. For the purposes of this appeal, the relevant provisions of the Act are:

S.41 (1) The duties of a chief of police include,

(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31 (1);

(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;

S.42 (1) The duties of a police officer include, (g) performing the lawful duties that the

chief of police assigns;

S.49 (1) A member of a police force shall not engage in any activity,

(a) that interferes with or influences adversely the performance of his or her duties as a member of a police force, or is likely to do so;

(b) that places him or her in a position of conflict of interest, or is likely to do so;

(c) that would otherwise constitute full- time employment for another person; or

(d) in which he or she has an advantage derived from being a member of a police force.

(3) A member of a police force who proposes to undertake an activity that may contravene subsection (1) or who becomes aware that an activity that he or she has already undertaken may do so shall disclose full particulars of the situation to the chief of police or, in the case of the chief of police, to the board.

S.80 (1) A police officer is guilty of misconduct if he or she,

(a) Commits an offence described in the prescribed code of conduct;

The Appellant was the subject of a disciplinary charge

of

insubordination under section 2(1)(b)(ii) of the Code

of

Conduct. It reads:

S.2 (1) Any …police officer commits misconduct if he or she engages in…

(b) Insubordination, in that he or she…

(ii) without lawful excuse, disobeys, omits or neglects to carry out any lawful order.

48. The issues on this appeal are:

(a) Was there an Order issued to Constable Leahy by the

Service’s Chief of Police?

(b) If so, was that Order lawful?

(c) If so, was the Order disobeyed, omitted or neglected?

(d) If so, was there a lawful excuse for the Order being disobeyed, omitted or neglected?

49. Having reviewed the record of the disciplinary proceeding and given the undisputed fact that there were two letters sent from the Chief to the Appellant, both containing a similar demand for the Appellant to provide information pertaining to his activities in contract construction employment, we find that the Hearing Officer had sufficient information and was correct in finding that there was an Order issued to Constable Leahy.

50. Accordingly, the answer to the first issue is in the affirmative.

51. In his 18 page decision, the Hearing Officer carefully reviewed the evidence of the four witnesses who testified. We have reviewed the transcript of evidence taken and the reasons for decision and we can find no manifest errors or omissions in the Hearing Officer’s summary of the testimony.

52. Constable Leahy’s immediate superior, Staff Sergeant Eagan, testified that he was aware of the Appellant switching shifts with other officers in 2009 and stated that the practice was not unusual. He had been advised by Constable Leahy that he was using time off to frame houses. Staff Sergeant Eagan explained the process of completion of a NAN form which required both switching officers to sign as consenting to it, and then have the NAN form approved by their supervisor.

53. In November, 2009, Staff Sergeant Eagan became concerned with the number of switches being arranged by the Appellant and officers showing up to perform the Appellant’s shifts without his prior knowledge and approval. He noted there were seven unapproved NAN forms presented at the time the Appellant went hunting. He reported the missing shifts to Inspector William Chantler, the Unit Commander, and was instructed to inform the Appellant that the practice had to cease. He testified that he was ultimately able to reach the Appellant and so informed him.

54. Inspector Chantler corroborated the evidence of Staff Sergeant Eagan and reviewed the discussions he had with the Appellant when he had returned from his hunting trip. Inspector Chantler explained to the Appellant that the switching of shifts was for one-off situations and not to be used for secondary employment. He reinforced that policing had to be the Appellant’s primary employment. He admitted that there was no provision in the Working Agreement or the NAN form that specifically limited the number of times an officer could switch. In the course of those discussions, he testified that Constable Leahy advised him that policing was not his primary job or source of income.

55. The testimony of Constable Chad Power indicated that he worked 22 shifts which had been switched with the Appellant between July to November, 2009. He stated that the normal practice was to complete the NAN form, have it signed by both officers and approved in advance by a supervisor. To the best of his recollection the process was followed.

56. The final witness to testify was Staff Sergeant Christopher McCoy, the investigating officer from Professional Standards Branch. Through him, the letters from the Chief to the Appellant, the responses from the lawyer for the Appellant and the records of attendance were introduced. He confirmed that the number of shifts missed by the Appellant were 55. That number is not in dispute.

57. In his decision, the Hearing Officer correctly identified the elements of the offence.

58. The Hearing Officer stated:

“It would appear reasonable that the Chief of Police, based on the information received and cognizant of the secondary employment issues of the Police Services Act and of the department, issued an Order to Constable Leahy.”

“I must now turn my attention to was (sic) the Order lawful. From the evidence of Eagan and Chantler, an issue relating to secondary employment may have been a viable conclusion reached by management of the Service. The added component that Leahy had also voiced to separate individuals of the Police Service that policing was not his primary source of income. This certainly would raise the proverbial red flag to management.”

59. The Hearing Officer found that the Appellant, as a police officer with the Service, was responsible to answer work- related issues when requested by his superior officer. Without an explanation by the Appellant, the Hearing Officer stated that the issue could be affected by the language in section 49. He went on to concede that the Chief may have been overzealous in the request for all of the information but it was a starting point. He noted that counsel for both parties agreed that information on the number of hours worked was a legitimate issue and the Appellant was compelled to answer.

60. It was the additional personal and corporate tax information that the Appellant submitted is firstly, not relevant, since it would not clarify the number of hours worked at the secondary activity and secondly, was personal private information to which the Chief was not entitled. As a result the Appellant’s position is that the Order is therefore tainted by adding this requested information, making the entire Order unlawful.

61. We do not agree. Based upon the evidence of the witnesses, we concur that the Chief was justified in issuing the Order. Bearing in mind the duties and responsibilities of the Chief and the Appellant as a police officer set out in the Act, the Chief had the duty, from an operational standpoint, to investigate the issue and the Appellant had a responsibility to respond to a direct Order from his superior. If the Appellant took issue with some of the information requested

the requested information to which he did not object and discuss his concern with providing the additional information with the Chief or he could have provided all of the information and filed a grievance. Instead, through his lawyer, he chose to dispute the lawfulness of the Order in its entirety.

62. Police officers have a duty to comply with the orders and directions of their superior officers. In this case, the Order issued was for the public purpose of investigating whether Constable Leahy was complying with his terms of employment in committing full-time to his policing duties with the Service pursuant to section 49(1) of the Act.

63. Section 49(3) of the Act places an onus upon a police officer to disclose full particulars of the situation to the Chief where he or she becomes aware that an activity that he or she has already undertaken may contravene section 49(1) of the Act. The undisputed evidence of Inspector Chantler indicated that the Appellant acknowledged to him that policing was no longer his primary job or source of income. Constable Leahy was, therefore, under a duty to disclose full particulars of the situation independent of any Order of the Chief. He failed to do so.

64. Under these circumstances, the Hearing Officer was entitled to find that the Order issued by the Chief was lawful. We do not agree with the submission of the Appellant that it is not the obligation of the officer to parse out those portions of any order that he considers lawful and respond only to those issues. A police officer is obligated to respond to his superior on work related issues that may affect his performance or the performance of the police force.

65. We concur with the finding of the Hearing Officer that the Order was lawful. Accordingly, the second issue is answered in the affirmative.

Appellant to the Chief. Although they contain some of the information sought, the responses do not provide information related to the number of hours performed on the outside secondary work. We agree with the conclusion of the Hearing Officer that the issue was the missed work shifts and the belief of the Chief that Constable Leahy was doing another job fulltime and not the effect of the missed shifts on the Appellant’s performance while at his policing job.

67. The evidence presented at the disciplinary hearing entitled the Hearing Officer to find that the Appellant did not comply with the lawful Order. There was no error in such finding by the Hearing Officer.

68. The third issue is therefore answered in the affirmative.

69. The final issue is whether or not the Appellant provided a lawful excuse for not obeying the Order. Constable Leahy apparently relied upon his legal counsel to advise him and instructed counsel to reply to the Chief’s two letters of November 23 and December 18, 2009. The Appellant himself did not respond directly to the Order until well after the deadline set by the Chief, by delivering a memorandum dated February 3, 2010 in which he adopted his legal counsel’s position as his own.

70. The Hearing Officer considered the evidence and found that the Appellant, himself, offered no explanation for the missed shifts, relying upon legal advice and counsel to respond on his behalf. While we may not have expressed that finding in the terms used by the Hearing Officer since, if one accepts the response of the legal counsel as a partial explanation of the use of switched shifts, nevertheless, the response did not address the required information in the Chief’s Order related to the number of hours devoted to the secondary contract construction.

71. The Commission has determined in prior cases that, relying upon legal advice does not necessarily provide a lawful

Toronto Police Service (1997), 3 O.P.R. 1126 (OCCPS); Precious (supra).

72. The Hearing Officer’s finding that the Appellant did not provide a lawful excuse for disobeying the Chief’s Order was justified. The fact that the Order required additional personal and corporate tax records to be disclosed did not vitiate the Appellant’s requirement to respond. It did not make the Order unlawful.

73. Further, the Order was directed to the Appellant. A response from legal counsel is not sufficient to satisfy the requirements of section 49(3) of the Act. The Appellant himself did not respond by the deadline of January 4, 2010.

74. Accordingly, the fourth issue is answered in the negative.

75. As a result, we find that the conclusions reached by the Hearing Officer were reasonable, reflect a correct understanding and application of the law, are based upon clear and cogent evidence and have been articulated in a logical and transparent manner in the reasons.

Conclusion

76. The appeal against the finding of insubordination is therefore dismissed. The appeal against penalty was withdrawn.

DATED AT TORONTO THIS 13th DAY OF FEBRUARY, 2012

John Rodriguez Roy Conacher, Q.C.

Member Member