Mulligan v. Ontario Provincial Police, 2014 CanLII 100626

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Mulligan v. Ontario Provincial Police, 2014 ONCPC 3

BETWEEN:

SERGEANT DANIEL MULLIGAN APPELLANT (RESPONDING PARTY)

-and-

ONTARIO PROVINCIAL POLICE RESPONDENT (MOVING PARTY)

RULING ON MOTION

Panel: David C. Gavsie, Associate Chair Roy Conacher Q.C., Member

Hearing Date: February 19, 2014

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:

Lorenzo D. Policelli, Counsel for the Moving Party, the OPP. Michelle Hamilton Mayers, Counsel for the Responding Party, Sgt. Mulligan.

Introduction

1. The Ontario Provincial Police (the “OPP”) brings a Motion (the “Motion”) to obtain an Order dismissing the appeal filed by Sergeant Mulligan (“Sgt. Mulligan” or sometimes the “Appellant”).

2. The grounds for the Motion are the following:

a) There has never been any formal discipline from which the Appellant is entitled to appeal;

b) Absent a disciplinary decision, the Commission lacks jurisdiction to hear an appeal; and

c) The decision date of September 5, 2013 referenced in the Notice of Appeal relates to a memorandum of transfer indicating an administrative decision of the OPP which is neither disciplinary nor disguised discipline in nature.

Decision

3. The Panel:

a) dismisses the Motion; and

b) orders that the appeal proceed.

Background

4. Two Notices of Internal Complaint were issued against the Appellant. Both are dated July 30, 2013. One Notice stated that the Date of Incident and Date of Complaint to be July 17, 2013 (the “July 17 Complaint”). The Summary of Complaint reads:

“It is alleged you were insubordinate and displayed inappropriate behavior towards your supervisor.”

5. The circumstances giving rise to the July 17 Complaint resulted from an interaction between Sgt. Mulligan and his supervisor over the flight suit the Appellant was wearing at the time. The supervisor questioned why Sgt. Mulligan was wearing a green suit when a blue flight suit had been approved for use. Sgt. Mulligan’s response was simply to indicate that all communications from the supervisor to him were to be in writing.

6. The second Notice stated the Date of Incident and Date of Complaint to be July 19, 2013 (the “July 19 Complaint”). The Summary of Complaint reads:

“It is alleged you failed to follow proper chain of command by sending an e-mail directly to the Commissioner, in which you used inappropriate and insulting language to disparage the character of members of your command staff.”

7. Both Notices of Internal Complaint were signed by Staff Sergeant Steve Thompson, Manager, Classification and Analysis Unit, Professional Standards Bureau of the OPP.

8. On July 19, 2013, Sgt. Mulligan received an e-mail from Acting Superintendent Bill Davies, Director of Operations, Field Support Bureau of the OPP (the “July 19 e-mail”) which stated:

Dan:

In follow up to our meeting this date this e-mail will confirm that effective immediately you have been stood down indefinitely from flying duties for inappropriate and insubordinate conduct towards your supervisor.

Please utilize tomorrow’s scheduled shift to conclude administrative business with respect to aviation and report to Bracebridge Detachment commencing Sunday July 21st.

Thank you

9. By letter dated September 5, 2013 (the “September 5 letter”), Sgt. Mulligan was notified his transfer was confirmed and given the following reason for it:

The reason for your transfer is that the Employer is of the view that a change in position will be best for you and the OPP. I wish to be clear that this transfer is not a disciplinary action and will not be recorded as such. I believe that this transfer will allow your skills and knowledge to be best utilized, and best serves the operational objectives of the organization.

The letter was signed by the Commander of the Field Support Bureau of the OPP.

10. During the hearing of the Motion, counsel confirmed that the July 17 Complaint was found to be unsubstantiated. No decision on the July 19 Complaint has yet been made.

Submissions of Moving Party

11. Mr. Policelli stated that the appeal is in respect to the September 5 letter. He submitted that an administrative not a disciplinary decision is before the Commission.

12. He argued that the July 19 e-mail was a temporary standing down coming from the Field Support Unit, not Professional Standards. It is a performance management issue. The July 19 e-mail is not being appealed. The September 5 letter is the subject of the appeal. It is the wording of the latter that is important.

13. Mr. Policelli argued that case law indicates the Commission can determine its own jurisdiction.

14. He referred to a case cited in the Appellant’s Notice of Appeal, namely Abbott et al. v. Collins et al., 2003 CanLII 46127 (ON CA), [2003] 64 O.R. (3rd) 789 (ONCA). He pointed out that in that case the OPP agreed that the matter was disciplinary in nature. He referred to paragraph 30 which reads:

[30]… Section 70 (1) of the Police Services Act allows a police officer to appeal to the Commission after receiving notice of the decision made by the Chief of Police after a hearing. In this case there was no hearing and no notice. However, giving the Act a liberal interpretation, although the procedure of the Act was not followed, the Commission is not deprived of jurisdiction and an appeal would lie to the Commission. Again, it would be for the Commission to decide its own jurisdiction on the evidence placed before it.

15. Mr. Policelli submitted that Abbott v. Collins, supra, establishes that the Commission determines its own jurisdiction.

16. Abbott v. Collins, supra, follows and applies the Supreme Court of Canada’s decision in Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, [2000], 1 S.C.R. 360 where the Court states at paragraphs 30-32 that the essential character of the dispute in that case was disciplinary and the legislature intended all disciplinary matters to be dealt with under The Police Act and Regulations.

17. Mr. Policelli argued that the OPP’s position is that there was no discipline decision in this case, and, therefore, there can be no appeal to the Commission under s. 87(1) of the Act. The Commission should not assume jurisdiction for an administrative decision.

18. He referred to the case of Richardson v. OPP (May 23, 2012, OCPC), at paragraphs 46 to 48, where the Commission held that the matter in dispute was disciplinary in nature. Richardson, supra, is to be distinguished from this case in that the transfer had no link to discipline. A transfer is not an available penalty under the Act and cannot be ordered by a hearing officer.

19. Mr. Policelli referred to Shuffler v. Calgary (City) Police Commission, 1995 ABCA 258, [1995] A.J. No. 573 (Alberta Court of Appeal). At paragraph 19, the Court states: “There may be, after all, sound administrative reasons for the officer to be moved on to other duties…”.

20. Mr. Policelli also referred to an arbitration decision in Edmonton Police Service v. Edmonton Police Association (Dzioba Grievance), [2013] A.G.A.A. No. 17 at paragraph 122. The arbitrator laid out principles for determining whether a matter is disciplinary or non-disciplinary as follows:

[Paragraph 122]:

15. In characterizing a matter, regard must be had to the “essential character of the dispute” or as one judge put it, “the main fact that animates the dispute”. Greater regard should be had to the substance of the matter then to the reaction of individuals to the matter, recognizing that the management of the police service and particularly performance management can give rise to moments of anger, differences of perception and so on.

16. An officer who alleges that he or she has in fact been disciplined, including constructively disciplined or dismissed, may be able to appeal to the Law Enforcement Review Board, despite the apparent lack of an express procedure for such an appeal. See: Regina Police, (supra). The interpretations in this decision may require that the officer will need to convince the Law Enforcement Review Board that the matter is indeed disguised discipline and not a response to non-culpable performance issues.

In Edmonton (Dzioba Grievance), supra, the onus was on the officer to establish the action was disguised discipline.

21. Mr. Policelli referred to Munday v. Calgary (City) Police Commission, [2003] A.J. No. 280 (Alberta Court of Queen’s Bench). In that case, the Police Commission’s position was that a transfer of a police officer was administrative in nature based on the officer’s failure to meet performance expectations (i.e. not meeting the expectation to issue 12 to 15 traffic violation tickets per shift as a member of the Traffic Section of the police service).

22. In Munday v. Calgary, supra, at paragraphs 23 and 24, the Court stated:

23. I agree with the Respondents that the transfer of the Applicant was an administrative decision which is not subject to judicial review. The Applicant was not given a specific order to follow. He was advised of a performance expectation and he was told how failure to meet that expectation would be dealt with. Acting Inspector Loughery was faced with a Constable who was not prepared to undertake his normal duties. This dispute does not arise, either expressly or inferentially, from the discipline provisions of the Act or the Regulation. The discipline provisions deal with serious matters of misconduct which can result in a serious punishment, such as dismissal, and not with the efficient deployment of labour within the Calgary Police Service.

24. In the circumstances under consideration here, the Inspector chose to deal with the failure to meet performance expectations with a transfer out of the Traffic Section – a result which the Applicant was specifically told would obtain if he did not meet those expectations. Administering the Police Service is the Chief of Police’s job (or his or her designate’s) and he or she may transfer officers who have performance issues to better meet the needs of the Police Service and the public. In my view, the Act and the Collective Agreement permit such action in the proper administration of the Police Service. This type of action is contemplated by s. 41 of the Act quoted above, and is reserved to the Chief by virtue of the Collective Agreement.

Mr. Policelli submitted in the present case, there were inter-personal issues. The OPP should be entitled to deal with such issues as an administrative matter. The transfer was not disguised discipline.

23. Mr. Policelli reiterated that the September 5 letter was very clear in stating that the transfer was not disciplinary in nature.

Submissions of Responding Party

24. Ms. Hamilton Mayers submitted that the transfer has all the hallmarks of discipline. There was no hearing. Sgt. Mulligan was removed from his position as a helicopter pilot. He has over 30 years seniority as a helicopter pilot, he was acting as a senior pilot and the OPP spent thousands of dollars on his training.

25. The transfer of Sgt. Mulligan has led to a loss of salary, overtime and status for him. She submitted that Sgt. Mulligan was removed from his position.

26. Ms. Hamilton Mayers argued that Sgt. Mulligan has not agreed to any discipline. He is entitled to a full hearing under section 76 (9) of the Act. He should have the opportunity to defend himself before any discipline is imposed on him.

27. Ms. Hamilton Mayers referred to the July 17 Complaint which has been found to be unsubstantiated (See the report from the Professional Standards Bureau dated November 20, 2013 which is contained in the Responding Party’s Supplementary Brief of Documents at tab 1).

28. Note from Panel – During the hearing of the Motion, there appeared to be confusion between the two Notices of Complaint. The July 17 Complaint (see paragraph 4 above) related to the flight suit issue and a comment attributed to Sgt. Mulligan in addressing his supervisor. This was found to be unsubstantiated in the report referred to in the previous paragraph of this Decision. On the other hand, the July 19 Complaint (see paragraph 6 above) alleging that Sgt. Mulligan sent an inappropriate e-mail to the Commissioner, has not yet been dealt with.

29. Ms. Hamilton Mayers argued that the wording of the July 19 e-mail indicated a temporary transfer so no appeal was filed. The September 5 letter confirmed the July 19 e-mail and advised Sgt. Mulligan of a permanent transfer. An appeal was therefore filed against the September 5 letter which the Appellant submitted was the discipline decision.

30. Ms. Hamilton Mayers submitted that the Commission can determine its own jurisdiction. She referred to the case of Holder v. OPP (May 31, 2002, OCCPS) at page 8:

“…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.”

31. The Holder decision, supra, quotes at page 8 from the SCC’s decision in the Regina Police Association, supra:

“…the Police Act must be interpreted liberally…”

32. Ms. Hamilton Mayers argued that in the Richardson labour arbitration issued December 15, 2011, Arbitrator Abramsky looked at all of the facts of the case and determined the matter to be disciplinary in nature. She noted that in Richardson v. OPP (May 23, 2012, OCPC), the Commission ordered the OPP to take no further discipline against the officer.

33. In this case, Ms. Hamilton Mayers asked, what was the reason for Sgt. Mulligan’s transfer? There was no motive for it unless the context was as is set out in the July 19 e-mail. She argued that the onus shifts to the OPP to establish that the transfer was administrative in nature.

34. She noted that in Edmonton (Dzioba Grievance), supra, performance management was important. In that case the employer put details in front of the officer in fact twice – see page 8, paragraphs 9 and 10. The Edmonton Service had put the officer on notice that he was not meeting expectations. That did not happen in Sgt. Mulligan’s situation.

35. Ms. Hamilton Mayers submitted that here there was a momentary lapse in refusing to respond to a supervisor. Sgt. Mulligan told his supervisor to communicate with him by email. There was a massive response by the OPP. It was not proportionate. Sgt. Mulligan was transferred from a specialty position he had held for many years.

36. Ms. Hamilton Mayers argued that an employer can always respond with administrative measures and say they are not disciplinary in nature, and therefore deprive an officer of a hearing.

37. In Richardson, supra, the Commission ordered the OPP to hold a hearing and not to implement any discipline until after the hearing (if appropriate). Here the Appellant seeks an order for the Commissioner to hold a hearing. She argues that the OPP’s position would allow disguised discipline to occur. Sgt. Mulligan has lived with the discipline for seven months without the hearing mandated by the Act.

38. She noted that in most of the decisions referred to in this hearing, the affected employee was assured of a hearing. Sgt. Mulligan will not have a hearing unless the Commission orders that one be held. This appeal should proceed since the subject matter is disciplinary in nature.

Reply by Moving Party

39. Mr. Policelli submitted that there can be administrative consideration about performance management issues during a disciplinary investigation. Also, a transfer cannot be ordered by the Commission; it can only be effected by administrative decision. In this case, the transfer was not a penalty. The September 5 letter was sent before there were any charges under the Act.

Reasons

40. This case is almost unique for the Commission because, normally, on an appeal under s. 87 (1) of the Act, it is a decision made by a hearing officer after a disciplinary hearing that is being appealed. In this case there was no hearing, only the September 5 letter. An appeal has been taken by the Appellant against a transfer made permanent by the September 5 letter. It is the Appellant’s position that the permanent transfer is disciplinary in nature.

41. Three issues arise on this Motion:

42. Does the Commission have jurisdiction where the hearing process mandated in Part V of the Act has not been followed?

43. If the answer to question 1 is positive, is the nature of this dispute between the parties disciplinary in nature?

44. If the answer to question 2 is positive, what is the appropriate decision for this case?

45. As determined in Richardson v. OPP, supra, the Commission does have jurisdiction with respect to disciplinary matters where it finds that Part V of the Act has not been instituted or followed. We confirm, adopt and follow the reasoning in paragraphs 37 to 44, inclusive, of that decision.

46. We turn to the second question, namely, is the nature of the dispute between the parties disciplinary in nature?

47. The incident concerning the flight suit worn by Sgt. Mulligan occurred either on July 17, 2013 as indicated in the July 17 Complaint or on July 18, 2013 as indicated in the Professional Standards Bureau Investigation Report filed in the Appellant’s Supplementary Brief of Document.

48. Sgt. Mulligan received the July 19 e-mail which stated unequivocally:

“…effective immediately you have been stood down indefinitely from flying duties for inappropriate and insubordinate conduct towards your supervisor.”

(emphasis added)

46. The wording of the July 17 Complaint read:

“…you were insubordinate and displayed inappropriate behaviour towards your supervisor.”

47. There is little difference between the two quotations.

48. The July 19 e-mail concluded by stating:

“Please utilize tomorrow’s scheduled shift to conclude administrative business with respect to aviation and report to Bracebridge Detachment commencing Sunday July 21st.”

Aside from any other consequences to Sgt. Mulligan, this transfer caused him to lose a specialty pay of 4% over base salary commencing the date the transfer out of Aviation Services was effective.

49. Next, Sgt. Mulligan received the September 5 letter which contained the sentence:

“I wish to be clear that this transfer is not a disciplinary action and will not be recorded as such.”

But it must be noted that the two Notices of Complaint had been issued and were outstanding at this point in time.

50. The Panel finds that based on the facts of this case, the essential character of this dispute was disciplinary, not administrative, in nature. It is clear to us, based on the record on this Motion, that the Appellant was transferred as a result of his allegedly “inappropriate and insubordinate conduct towards (his) supervisor”. The conduct in question is potentially culpable and not, for instance, conduct indicative of the Appellant’s inability to perform the requirements of his position.

51. Therefore, we must address the third question, namely, how should this case proceed, what is the appropriate direction?

52. The Commission’s appellate jurisdiction is found in s. 87(1) of the Act which requires that a decision of a hearing officer has been made and a Notice of Appeal has been filed with the Commission thereafter.

53. In this case, there has been no hearing nor, obviously, a decision of a hearing officer rendered.

54. The July 17 Complaint has been found to be unsubstantiated. The July 19 Complaint is still outstanding.

55. Applying the principles established in Regina Police Association, supra, and Abbott v. Collins, supra and giving the Act a large liberal interpretation, the Panel finds it has jurisdiction under s. 87 (1) of the Act to hear the Appellant’s appeal.

56. Accordingly, the Panel:

a) dismisses the Motion; and

b) orders that the appeal proceed.

DATED AT TORONTO, THIS 28TH DAY OF MARCH, 2014

David C. Gavsie Associate Chair, OCPC

Roy Conacher Q.C. Member, OCPC