Constable Emmanuel Diafwila v. Ottawa Police Service, 2014 CanLII 100635

OCPC-#14-01

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Diafwila v. Ottawa Police Service, 2014 ONCPC 1

B E T W E E N:

CONSTABLE EMMANUEL DIAFWILA

APPELLANT

-and-

OTTAWA POLICE SERVICE

RESPONDENT

DECISION

Panel: Roy B. Conacher, Q.C., Member

Georges Bedard, Member

Jeffrey L.B. King, Q.C., Member

Hearing Date: October 8, 2013

Hearing Location: Toronto, Ontario

Ontario Civilian Police Commission

250 Dundas Street West, Suite 605

Toronto, Ontario M7A 2T3

Tel: 416-314-3004

Fax: 416-314-0198

Website: www.ocpc.ca

Appearances

Paul Champ, Counsel for the Appellant

Vincent Westwick, Counsel for the Respondent

Introduction

1. On November 15, 2011, Constable Emmanuel Diafwila (“Const.

Diafwila” or the "Appellant"), a Second Class Constable with the

Ottawa Police Service (“OPS” or the “Service”), was served with a Notice of Disciplinary Hearing alleging that he had committed unsatisfactory work performance contrary to Section 29, Ontario Regulation 268/10 (“O. Reg. 268/10”, and sometimes “Regulation

268/10”).

2. A number of the issues or deficiencies in work performance were alleged to have occurred prior to and after July 5, 2010 when Ontario Regulation 123/98 was repealed and replaced by Ontario Regulation 268/10. Since the wording of the relevant provisions of O. Reg. 268/10 remained essentially unchanged from its predecessor sections 12 and 13, all references herein are to Regulation 268/10.

3. A Notice of Chief’s Complaint dated December 23, 2010 set out the complaint against Const. Diafwila as follows:

Coach officer feedback and performance reviews have consistently identified performance issues that have not been resolved 4 years into his tenure with OPS. He lacks sustained improvement in his performance and examples of incidents suggest strongly that Cst. Diafwila has not made marked and sustained improvement in serious areas required to fulfil the duties assigned to him as a police officer. Cst. Diafwila has not demonstrated being able to transfer his success and knowledge and skills gained at OPC (Ontario Police College) to the field. Cst. Diafwila was placed on a PIP (Performance Improvement Plan) on March 16, 2009 and this PIP has been extended.

Const. Diafwila pled not guilty to the complaint. The hearing took place over a period of 24 days and 18 witnesses testified. A total of 83 exhibits were filed and submissions made on behalf of the prosecution and defence.

5. On January 18, 2013, Superintendent Robert J. Fitches, (ret’d), (the “Hearing Officer”) issued his decision finding the Appellant guilty of unsatisfactory work performance as alleged in the Notice of Hearing for the reasons set out in the decision.

6. On March 7, 2013, the Hearing Officer imposed a penalty requiring resignation by the Appellant within seven (7) days and, failing such resignation, that he be dismissed from the Service.

7. Const. Diafwila appeals both the finding of guilty and the penalty disposition of the Hearing Officer and requests an Order reinstating the Appellant to duty with the direction that the Chief of Police provide appropriate refresher training and coaching so the Appellant can successfully return to patrol duties as a Second Class Constable with the Service.

Decision

8. For the reasons set out below, the appeal is allowed.

Issues

9. The essential issues raised in this appeal are:

(a) Does compliance with Regulation 268/10 and specifically section 29(3) under the Act constitute a pre-condition to instituting a complaint against a police officer for unsatisfactory work performance?

(b) Did the OPS comply with section 29(3) of Regulation

268/10 and its own established procedures?

the requirements of the Regulation?

(d) Does a hearing officer have discretion in the interpretation and the application of “established procedures” under section 29(3)(a)?

(e) If so, based upon the evidence adduced, was the Hearing Officer correct in concluding that the measures taken in good faith by OPS to improve the work performance of the Appellant were sufficient to achieve compliance with the intent and spirit of the Act and Regulation 268/10?

(f) In the circumstances, was there a breach of the rules of natural justice and procedural fairness?

(g) Did the Hearing Officer commit errors of fact or law in arriving at the conclusions contained within his reasons for decision?

(h) Do the reasons for decision satisfy the requirement of sufficiency as established in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190;

In the course of this appeal, the panel was advised that a determination of the above issues is of considerable importance since there are few, if any, prior cases providing guidance with reference the requirements to establish unsatisfactory work performance. For this reason, the factual circumstances are set out in more extensive detail to provide contextual background.

Background

10. The Appellant has been a police officer employed with the Service since April 2006. He attended the Ontario Police College between May and July 2006 and passed all courses, many with high marks. He returned to the Service and on or about August 16,

2006, he began the usual probationary period as a new recruit

and was assigned to a coach officer for additional training and experience.

11. In January 2007, he completed the standard 500 hours of training with a coach officer but after a review of his performance, it was determined by his supervisors that he was not yet ready for independent patrol and required an additional period of coach officer training. He was required to complete a further 100 hours of such training and at the conclusion of that period in January of

2007, he was assigned to independent patrol.

12. The Appellant continued on independent patrol from January 31,

2007 until December of 2008, first starting work in an urban division and subsequently being assigned to the Rural East Division.

13. In February 2007, Const. Diafwila was promoted to Third Class

Constable and in February 2008 to Second Class Constable.

14. Throughout the periods of his initial coach officer training and his independent patrol there appeared to be a significant number of concerns expressed by his coach officers, other fellow officers and supervisors regarding the Appellant’s work performance. These related to issues of driving and officer safety, report writing, use of police communication, ability to focus on tasks and observations during investigations and his communications with the public. His performance in these areas of policing created a lack of confidence and trust by his colleagues in his abilities to perform as back up officer in serious situations and in the physical safety of his partners and the public. A number of officers who were assigned to work with the Appellant, expressed opinions that he was not ready for independent patrol.

15. The annual performance reviews, while containing recommendations on a number of performance areas that needed improvement, indicated that he was meeting minimum but acceptable standards of performance and he was promoted eventually to Second Class Constable by February 2008. The evaluations indicated that the Appellant had positive attributes which were a valued benefit to the Service. He was fluent in four languages and was able to perform at a high level academically in

exhibiting a significant interest and effort in improving his performance level. The difficulties arose in his practical application of the required policing skills.

16. There appeared to be inconsistencies in the Appellant’s abilities to carry out standard police work. At times he performed very well and showed improvement when coached and at other times he appeared to regress.

17. By November, 2008, Const. Diafwila’s supervisors believed that he was not improving significantly enough towards being able to perform independent patrol and needed to be placed on a Performance Improvement Plan (“PIP”). This process involved applying a specific policy of the Service designed to assist an officer in attaining performance criteria levels set in the PIP and, at the same time, enabling the Service to assess the Appellant’s performance in reaching those levels over a period of time.

18. In January 2009 a PIP was prepared by the Appellant’s supervisors. Under the PIP, the Appellant was assigned to receive additional training courses in the areas where he appeared to be having difficulties. As part of the PIP, while completing such courses, he was assigned to a coach officer to continue his practical training.

19. Unfortunately, the written PIP was not shown to the Appellant nor agreed to or signed by the Appellant although during January and February, 2009, there were a number of meetings held by his supervisors and other officers both with the Appellant present and also in his absence to discuss the requirements and expectations for Const. Diafwila.

20. On January 25, 2009 the Appellant was assigned to a coach officer and from that point until March 16, 2009, he accompanied that coach officer and, at times, several others coach officers while on duty. On March 16, the Appellant was presented with the formal written PIP. He reviewed it and signed the document without expressing any concerns related to the identified performance issues and the requirements he would have to satisfy.

were a number of entries in the various coach officers’ notes pointing out the continuing alleged deficiencies in the Appellant’s work performance. Those concerns were similar to ones identified earlier in the Appellant’s career with the Service. Each of the coach officers expressed the view that the Appellant was not capable of independent patrol and would have great difficulty in ever reaching the required performance level in future to be successful as a police officer.

22. The period of coach officer training was extremely difficult and stressful for the Appellant. He complained to his supervisor about alleged abusive treatment he was receiving from the primary coach officer. At one point he expressed serious concern for his health alleging extreme mental stress caused by such treatment. He was having difficulty getting himself mentally able to go to work. This employment issue was raised with his immediate supervisor but no action was taken to resolve the issue and he was told to work it out and continue with the same coach officer.

23. By June 2009, the Appellant’s supervisors believed that he was not performing to expected levels and they arranged to remove him from patrol duties and subsequently re-assign him to the Divisional Information Desk where he was to carry out reception and other duties of an administrative nature. He remained at this job from about July 2009 until May 2010. Reports on his performance evaluations during this period indicated that he completed all tasks to acceptable standards.

24. In May, 2010, senior staff decided to attempt to re-integrate the Appellant to patrol duties once again. A Personal Learning Plan (“PLP”) was developed by his supervisors to equip Const. Diafwila with the skills necessary to return to active patrol. He was required to take additional training through the Professional Development Centre (“PDC”) and to participate in “real life” scenarios in various recreated police incidents. His performance in these training sessions was satisfactory and he also successfully completed a language training course. Throughout this time he remained formally assigned to the Information Desk.

assigned to new coach officers under the direction of a new supervisor.

26. A six point plan was developed which involved both briefings with coach officers after each shift and with senior officers after completing five and ten shifts respectively. An individualized form was created to allow entries to be made of his performance during each duty shift and to assist in providing immediate feedback. In addition, a number of meetings were held with the Appellant to assess his progress or lack thereof during this training period through the Fall of 2010.

27. Subsequent progress reports indicated that the Appellant continued to perform at unsatisfactory levels. At case conferences held by senior staff on November 25 and December

10, 2010, it was felt that Const. Diafwila was not making progress

towards being able to do independent patrol and based primarily upon safety concerns, on December 17, 2010, senior staff decided to terminate the PLP and to refer the Appellant’s performance deficiencies to Professional Standards Division for investigation towards initiating action to terminate his employment.

28. On December 22, 2010, the Appellant was placed on administrative leave to be effective December 23, 2010.

29. The issue of Const. Diafwila’s alleged unsatisfactory work performance was thereafter referred to the Professional Standards Section of the Service for investigation under Part V of the Police Services Act.

30. The Professional Standards investigation led to the Chief’s Complaint and the subsequent charge of unsatisfactory work performance issued on November 15, 2011.

Appellant’s Submissions

31. Mr. Champ submitted that the Hearing Officer erred in a number of respects, firstly, by not properly applying the statutory preconditions for dismissing the Appellant for unsatisfactory work

natural justice and procedural fairness and, thirdly, by making numerous errors in his findings of fact.

32. The Appellant asserted that the OPS repeatedly violated its own policies dealing with performance evaluation and failed to consider that the Appellant had performed sufficiently well according to the standards of a Second Class constable. Mr. Champ stated that Const. Diafwila was never placed on a proper PIP nor was he given a fair or reasonable opportunity to improve prior to taking steps to have his employment terminated.

33. Mr. Champ pointed out that although the “unsatisfactory work performance” provisions were added to the Police Services Act and the Code of Conduct in 1997, this is the first disciplinary hearing and appeal to consider a dismissal on that ground.

34. It was argued that the OPS did not properly follow its own Performance Review Policy by failing to document the Appellant’s alleged deficiencies in performance. Mr. Champ referred to the fact that a significant number of the alleged shortcomings were not entered into the Performance Review or Tracking Log for the Appellant as required by the policy. He also submitted that many of the written reports made by coach officers about Const. Diafwila’s work performance while on patrol duty were not disclosed to him.

35. It was further submitted that Const. Diafwila was denied a fair opportunity to improve his performance when he was assigned to a coach officer who harassed and abused him by yelling at him, belittling and insulting him in front of other officers to the point where he was so stressed he had difficulty focussing on his job tasks.

36. The Appellant was placed on the Information Desk for nearly a year and a half and then taken off that duty and returned to patrol duty but given only a few weeks to demonstrate he was ready to assume regular patrol duties.

deviation from Regulation 268/10 and OPS policies was permissible if the Service could demonstrate that it had acted in good faith and that, while process was important, the substance of performance was the critical factor to consider.

38. Mr. Champ asserted that Section 29(3) of O. Reg. 268/10 sets out mandatory statutory pre-conditions that must be followed and failure to do so undermines any grounds to terminate an officer - see Ontario (Civilian Commission on Police Services) v. Browne 2001 CanLII 3051 (ON CA), [2001] O.J. No. 4573 (ONCA).

39. Mr. Champ reviewed the Appellant’s performance through his probationary and coach training periods and acknowledged that there were coach officer reports in Const. Diafwila’s Performance Reviews in 2007 and 2008 that he was having difficulties in a number of areas of policing duties including, among others, report writing, using the police communications and not taking initiative on calls.

40. By the end of January 2007, the Appellant had successfully completed his additional coach training and was assigned to independent patrol. Mr. Champ pointed out that the Appellant remained on independent patrol for two years and his annual performance reviews showed overall satisfactory performance ratings and the Appellant was promoted from Fourth Class Constable up to Second Class Constable.

41. Mr. Champ then referred to the OPS policy for assessing performance of officers. He stated that the policy requires annual Performance Reviews and, if there is underperformance, the officer must be given written notice of the deficient areas. The reasons for requiring the review is to identify good and bad performance for the purpose of setting it out early for the officer so that the employee can concentrate on improving those areas or dispute the particulars of any incident referred to in the review.

42. Mr. Champ submitted that there are a number of mandated components to the Performance Review, being the Performance Interview, the PR Tracking Log and the Performance Review itself in which information from the Tracking Logs is to be used to

evaluation made of the areas of performance. Finally, a meeting is to be held with the officer to discuss the Performance Review and allow the officer to respond.

43. The Appellant’s position was that his Performance Reviews for

2007 and 2008 indicated that his overall performance level was meeting overall acceptable standards. Mr. Champ acknowledged the areas of performance where the Appellant was definitely not meeting the levels expected but noted that there were a number

of positive entries for excellent work and noticeable improvement. He submitted that in the Reviews, there were no areas of performance found unacceptable.

44. Mr. Champ urged that, if there is to be a serious consideration of dismissal, one must review the Tracking Logs carefully. He submitted that there were no complete or acceptable entries of information on performance in the Appellant’s Tracking Logs prior to the Fall of 2010. Only in later 2010, did the coach officers and senior supervisors start to make sure that proper entries were being made but by that time there was only one to two months of tracking before steps were taken to terminate the Appellant’s employment and that could not form the basis for dismissal.

45. While the Service was alleging that it established several PIPs for the Appellant during 2009 and 2010, there were no Annual Performance Reviews completed for those years as required by OPS Policies 3.19 and 3.14.

46. By agreement between the Appellant and the Service, performance issues prior to January 2009 were not to form part of the formal charge of Unsatisfactory Work Performance but only used as justification for placing the Appellant on a PIP in January

47. The request for the establishment of the PIP was based upon those areas noted as needing improvement in the 2008

Performance Review which was the last one entered on the

Appellant’s personnel record.

47. Mr. Champ submitted that there were a number of procedural issues raised with the PIP as drafted by senior officers in January

48. The primary objection was that the PIP was not given or

shown to the Appellant and he was not consulted nor had any input on the contents, including the incidents cited as requiring improvement. He did not see it or sign it. He requested a copy but was told it was not ready. He did not actually see a written copy until presented with one in March, 2009. All of the information given to him on the contents of the PIP between January and March, 2009 was verbal only.

48. He alleged that the coach officers assigned to train him were not properly advised of the specifics of the areas needing improvement. For example, he was asked by his coach officer why he needed training. The first coach officer assigned got off to a bad start with the Appellant and was confrontational, abusive, humiliating the Appellant by commenting on his bad breath, yelling at him while they were on patrol and in front of fellow officers in the parade room and was generally harassing him to the point where he was stressed and could not properly focus on his duties.

49. He repeatedly requested his supervisor to place him with another coach officer but was told to work out his difficulties with that coach officer.

50. The Appellant filed a complaint with his Sergeant about his treatment, stating that he was being psychologically harassed and intimidated by the coach officer but that complaint was never dealt with.

51. On March 16, 2009, Const. Diafwila finally received a written copy of the PIP. The Appellant reviewed the document and was surprised to see some of the specific incidents of alleged poor performance listed. Mr. Champ submitted that, with one exception, none of the incidents were documented in the 2008

Tracking Log or Performance Review, some were never raised with the Appellant and some had been satisfactorily explained and resolved with his supervisors. The Appellant told his Sergeant that he disagreed with the contents of the PIP.

52. Mr. Champ stated that there were inconsistencies in the training provided to the Appellant by the coach officers assigned while on the PIP. One was senior to him and was well qualified and one was junior officer and not qualified as a coach officer. He received

very positive comments generally on his performance from the former and negative ones from the latter.

53. The Appellant submitted that the January, 2009 PIP did not comply with OPS policy and therefore should not have been given any weight in assessing the alleged work performance deficiencies. Although he was verbally told about certain unsatisfactory performance issues, he was not given written notice nor afforded an opportunity to be completely advised of all of the areas he needed to improve. He was not informed of the consequences of not improving. He was also not given an opportunity to express his concerns or provide input into the development of this PIP.

54. Mr. Champ pointed out that the OPS has taken the position throughout this disciplinary process that the January, 2009 PIP was extended and in effect until December 2010. However, other than verbal comments to the Appellant, there was no documentation setting out in writing that the January PIP had been extended. Mr. Champ pointed out that when the Appellant was transferred back from the Information Desk duty to the patrol division, he was advised by letter from a senior officer dated November 19, 2010, that the January 2009 PIP was no longer in effect.

55. Mr. Champ asserted that through January to June 2009, the Appellant was assigned to several coach officers who kept their own hand-written notes containing both positive and negative comments on his performance. These comments were not entered into the Appellant’s Tracking Log.

56. In May of 2009, he was assigned to the Information Desk temporarily but on June 16, 2009, much to his surprise and the surprise of his coach officers, the Appellant was told that he was being transferred to the Information Desk pending a case review. The reason given to him was that his coach officers would not ride with him for safety concerns because of his lack of driving skills. Mr. Champ pointed out that the two coach officers, who testified at the disciplinary hearing, denied indicating that information to the supervisors. He argued that it appeared a senior officer misinterpreted and/or misinformed the Appellant’s immediate

inaccurately that the Appellant was lazy for allegedly missing training. That senior officer also denied having any knowledge of the Appellant’s workplace harassment complaint despite having been sent an e-mail reporting the complaint.

57. During his assignment on the Information Desk from June of 2009 until the Fall of 2010, the Appellant performed his duties well. His Tracking Log contained many positive comments including notations that he was assisting in translations, had prepared comprehensive and excellent reports, had trained other officers and that his conduct was a credit to OPS.

58. In the Fall of 2009, the Appellant remained concerned regarding his status with the Service and wanted it resolved. The issue of his complaint was still outstanding so he checked his personnel file and found that there was nothing in the file other than his annual Performance Reviews from 2007 and 2008. Neither the written PIPs of January or March 2009 nor his prior workplace harassment complaint were mentioned. He then requested a meeting with a representative of Human Resources of OPS to discuss these issues. In that meeting held on November 10, 2009, Const. Diafwila outlined his concerns about the PIP and asked why his complaint of harassment was not being investigated. He was told that it would be looked into.

59. Mr. Champ submitted that a review of the records of OPS reveals that, unknown to the Appellant, in November 2009 and May 2010, there were case conferences held and attended by senior supervisors and Human Resources personnel to review the Appellant’s work performance issues. The Appellant was not present.

60. During the meeting in May, 2010, it was acknowledged that there was a lack of entries in the Appellant’s Tracking Log regarding his performance. Some staff stated that the “OPS had not done well by the Appellant”. The decision was made to give the Appellant an opportunity to “get back on the road”.

deteriorated after almost a year and a half so an Individualized Learning Program (“ILP”) was to be developed by the Professional Development Centre (“PDC”) to re-integrate Const. Diafwila back to independent patrol. The work place complaint was discussed but no action taken.

62. Throughout July and August of 2010, the Appellant was tasked to take driving and other courses through the PDC to prepare him to return to active patrol duties. The instructors involved in conducting these courses expressed positive comments that he had done well and they were impressed with his knowledge. The PDC assessment concluded that overall the Appellant had performed well in the scenario-based training sessions.

63. Mr. Champ submitted that the Appellant met with a Superintendent in the Fall of 2010 and was advised that his return to patrol would be a clean start and the previous PIP of 2009 would be treated as closed. He was advised of the plan to have a new coach officer assigned to continue to train and monitor his performance.

64. Const. John Varga was assigned as his coach officer and together with the Sergeant, they developed a call review form to track his performance. Const. Diafwila was to be assessed by his coach officer every shift and by his Sergeant and senior officer at five and ten shift intervals respectively.

65. Through November 2010, the coach officer met with the Appellant to review the results of each shift and entries were made in the Tracking Log. These entries contained some negative comments on performance but also positive ones and showed improvement over the period.

66. By letter from his Superintendent dated November 19, 2010, Const. Diafwila was formally advised that the PIP issued in 2009 was no longer in effect. He was advised that he would be placed on a coach officer training period of 250 hours to reintegrate to full time patrol services. The letter explained that near the end of that coach training time, there would be a meeting to discuss the Appellant’s progress and “next steps”.

67. Mr. Champ submitted that the letter contained no mention of a new PIP or any warnings of possible dismissal.

68. On December 10, 2010, without any notification to the Appellant, another case conference was held by senior officers and representatives of OPS Human Resources to discuss the Appellant. Mr. Champ pointed out that this meeting was being held three weeks after the Superintendent’s letter to the Appellant and a couple of days after the completion of the twenty shift review. At that meeting, the decision was made that a Chief’s Complaint would be made to pursue dismissal of the Appellant for unsatisfactory work performance.

69. Mr. Champ submitted that this decision was made when the Appellant had not yet completed his 250 hours of coach training as set out in the November 19, 2010 letter. The Appellant was unaware of this decision and continued working without knowing that his fate was already sealed.

70. At a meeting held with the Appellant on December 19, 2010, senior officers informed the Appellant that OPS would be lodging a complaint with Professional Standards Section seeking his dismissal for unsatisfactory work performance.

71. Mr. Champ submitted that although the Hearing Officer acknowledged in his decision the problems with the process followed by OPS in the application of the Regulation, nevertheless he held that any deviation did not result in any unfairness to the Appellant and that too much focus was being placed upon the appropriateness of process and not enough on the performance of the Appellant.

72. The Hearing Officer did not identify the actual breaches of the Regulation he had mentioned. While referring to normal procedures for assessing performance, the Hearing Officer stated that these would not readily apply because the Appellant was not a probationary officer. He did not explain which OPS Performance Review Policies would not readily apply and concluded that there were discussions and notations which would have made the Appellant aware of the areas he needed to improve.

73. Mr. Champ referred to the comment of the Hearing Officer that the process was fair but far from perfect.

74. He submitted that the Hearing Officer erred when he considered the Appellant still to be essentially a probationary officer who had not reached a level to be fit for independent patrol despite many hours of coach training. The Hearing Officer erred by referring to an additional 500 hours of coach officer training above the standard 500 hours for probationary officers. Mr. Champ argued that this statement completely ignored the fact that Const. Diafwila was deemed qualified to be on independent patrol, by Const. Grozelle and two Sergeants, in a Field Training Evaluation, after

100 hours, not 500 hours, of coach officer training and was on independent patrol for two years in 2007 and 2008.

75. The Appellant submitted that the Hearing Officer appeared to accept the OPS position that all of the officers, who coached or mentored the Appellant, found that he displayed the same deficiencies and were consistent in their views concerning his lack of suitability for independent patrol. Mr. Champ pointed out that no mention is made in the decision that a few of such officers worked only a few shifts with the Appellant, some never actually worked a shift with him and others worked with him and found his performance acceptable and professional and that he was fit for independent patrol.

76. The Appellant’s position is that the Hearing Officer accepted these other officers’ versions of performance incidents but ignored the Appellant’s explanations.

77. The Appellant’s complaint about abusive and intimidating conduct by one of the coach officers, Const. Hung, was never properly dealt with by OPS however, notwithstanding that fact, such conduct was not considered by the Hearing Officer to be harassment.

78. While pointing out the many non-work related positive attributes of the Appellant, the Hearing Officer found that Const. Diafwila was not suited to policing.

79. The Appellant had two Annual Performance Reviews that indicated his skills as a patrol officer were meeting acceptable standards and, although there were some areas of policing that the Appellant needed to improve, there were no unacceptable ratings shown. These facts were not considered by the Hearing Officer.

80. Mr. Champ argued that these errors led the Hearing Officer to form a mistaken impression of the Appellant’s work history as being an officer who would never succeed in performing independent patrol duties. It was submitted that these errors of fact tainted the entire outcome of the decision.

81. Mr. Champ stated that most of the allegations of poor work performance were either completely undocumented, or were recorded in e-mails, notes, reports or memos that were neither entered into the Appellant’s Tracking Log nor provided to Const. Diafwila until years later as part of the disclosure in the disciplinary proceeding. This was contrary to the requirements and intent of OPS Policies and a breach of natural justice.

82. He asserted that the Hearing Officer relied upon stale allegations not brought to the Appellant’s attention in a timely manner. He submitted that the Hearing Officer erred in admitting this evidence.

83. Mr. Champ referred to a decision of Arbitrator Owen Shime in Air

Canada v. Canadian Air Line Employees’ Assn. [1981] CLAD No.

7 at paras. 25-26 who outlined several reasons for excluding evidence of stale-dated incidents of alleged work place

performance deficiencies:

It is difficult, as a matter of justice, to contest past incidents because of loss of memory or records or missing witnesses. Secondly, where the employer who normally utilizes discipline process, does not discipline an employee, the employee is entitled to assume that the mistake or error was on a non-disciplinary nature and that his conduct or actions fell within a reasonable standard. This leads the employee into a false sense of security about the standard demanded of the particular job.

84. Reference was also made to comments by Thomas Cromwell, formerly an arbitrator, now of the Supreme Court of Canada, in an arbitration decision in K-Line Maintenance & Construction Ltd. v. IBEW [1988] N.S. L.A.A. No. 21 at paras. 44-45:

It seems to me that no weight should be given to evidence of alleged past misconduct unless that past misconduct gave rise to disciplinary action which could have been the subject of a grievance at the time it was imposed. In my view, this is not a technical or legalistic doctrine but one premised on fundamental consideration of fairness.

85. The Appellant submitted that he did not see any of the e-mails, notes or memos made by his coach officers outlining his alleged poor performance at the time the incidents were alleged to have occurred. They were disclosed in the disciplinary process. He was not even aware of their existence. There were no entries in the Tracking Logs until Const. Varga started doing so one month before the Appellant’s suspension in December 2010.

86. As a result of this lack of written notification at the time of the alleged incidents of unsatisfactory work performance, the Appellant stated that, for some allegations, he was unable to find any of his own notes or reports and was also unable to recall the specifics and, after a delay of three years, this process was unfair and a breach of natural justice since he could not effectively dispute the allegations.

87. Mr. Champ maintained there was agreement that any alleged incidents of poor performance prior to January 2009 would not be relied upon by OPS, other than for background on the reasons for the PIP. He asserted that he made the stale-dated evidence argument to the Hearing Officer but that argument appeared to have been rejected since the decision clearly refers to poor performance throughout the Appellant’s career and relies upon the occurrences in 2009.

88. The admission into evidence of the written notes, reports and memos made by other officers, but not disclosed to the Appellant at the time of the alleged occurrences, was an error of law.

89. The Appellant submitted that, in his decision, the Hearing Officer appeared to have accepted the testimony of the witnesses for OPS but completely ignored the testimony of the Appellant and his witnesses. By failing to do so, it is presumed that the Hearing Officer did not weigh or consider the Appellant’s contrary evidence.

90. Mr. Champ referred to a number of cases cited by the Divisional Court wherein there was a failure to address all of the evidence relevant to a material issue. He submitted that by failing to indicate in the reasons any consideration of the Appellant’s evidence, the Hearing Officer ignored or misapprehended the evidence and this constitutes a reversible error - see McCormick v. Greater Sudbury Police Service, 2010, ONSC 270.

91. The Hearing Officer had a legal duty to provide an explanation as to why he ignored, rejected or discounted the evidence given by the Appellant and his witnesses. From his comments in the decision, he apparently found the Appellant to be a credible witness, stating that he is “a remarkable young man” with many positive attributes.

92. Mr. Champ referred to the following statements of the Hearing

Officer:

During this hearing, a large number of witnesses testified before me and offered their assessments and observations of Const. Diafwila and his work performance. Almost without exception these witnesses testified to their belief that Const. Diafwila was a positive, friendly person; someone whom they spoke of in extremely positive terms. These witnesses were equally consistent, however, in their assessments of Constable Diafwila’s capabilities and suitability to patrol independently.

Regrettably, their assessments of this young man leave me convinced that his work performance was unsatisfactory and is most probably going to remain unsatisfactory.

93. Mr. Champ pointed out that the work performance assessments of all of the witnesses were not, in fact, equally consistent. He referred to the specific testimony of witnesses, Constables Ayotte, Cartwright and McDonald, who gave favourable performance reviews of the Appellant. These were very experienced officers who had worked with the Appellant over longer periods than some of the coach officers. Mr. Champ also pointed out that the Tracking Log entries, that did exist, refer to the Appellant’s report writing as comprehensive, thorough, excellent, including positive comments from a Crown prosecutor. The Appellant had testified in over fifty criminal trials and there were no complaints regarding his reports.

94. There were further positive assessments of the Appellant’s performance from other officers who worked with the Appellant while he was at the Information Desk. Again, Mr. Champ stated that such testimony was completely ignored by the Hearing Officer in drawing his conclusions.

95. Mr. Champ reiterated that Section 29(3) of Ontario Regulation

268/10 is mandatory as clearly shown by the use of the word

“shall” in subsections (a) to (e). He referred the panel to Kingsbury v. Heighton, 2003 NSCA 80, a Nova Scotia Court of Appeal decision, in which the Court made the following comments:

Whenever in the Police Act or Regulation the word “shall” is used in connection with a material step in the procedure such step is mandatory, not directory. The omission of such step has the effect of depriving the board or the chief officer, as the case may be, of jurisdiction in the matter. Police officers are not employees, but the holders of public office carrying out the duties set out in the Police Act and administered by the board of police commissioners. These provisions are disciplinary in nature affecting the fundamental rights of the police officer respecting his or her professional career. All material requirements must be complied with.

there were imperfections in the process but stated in his decision that the conduct of the OPS complied with the spirit and intent of the Regulations and that the overall process was fair.

97. Mr. Champ argued that it was not open to the Hearing Officer to form his own view of compliance or ignore the specific mandatory pre-conditions. To do so is an error of law.

98. The Hearing Officer failed to grasp that process is just as important as the substance. The onus is upon the Service to prove its case substantially and procedurally.

99. Mr. Champ submitted that the term “established procedures” in Section 29(3)(a) of O. Reg. 268/10 refer to the policies and procedures of the Service. He asserted that the entire thrust of the OPS Performance Review Policy is to document behaviour and work performance and this is consistent with sound labour relations policy and fairness.

100. He referred to the testimony of the Human Resources Director for OPS. That evidence confirmed the importance of the policy to give written assessments in order to provide feedback especially if the feedback is negative. It can be overwhelming and not absorbed by the employee so a written document allows them to take it away and read and reflect on the contents and work towards adopting the recommendations. It also allows the employee to contest or comment upon the negative assessment.

101. Mr. Champ submitted that this process is a basic fairness issue protected by the Performance Review Policy. The OPS supervisors, coach officers and senior officers breached their obligations to the Appellant by failing to complete the Annual Performance Reviews after 2008, failing to record all negative performance comments into the Tracking Log and failing to disclose the notes, reports and memos of poor performance to the Appellant in a timely manner.

102. The Appellant maintained that the Unsatisfactory Work Performance Policy of OPS required the Chief, in consultation with the member, to establish an effective Performance

performance. This, the OPS failed to do. The PIP in January 2009 was not effectively implemented until a written copy was given to the Appellant in March 2009. The PIP was created without consultation with the Appellant. In November 2010, the Appellant was informed that it was no longer in effect. The specific objectives of the PIP, although expressed in general terms, were not made clear to the Appellant’s coach officers and neither was it made clear to the Appellant in the Fall of 2010, that failure to improve his performance could result in dismissal.

103. Mr. Champ submitted that considering all of the treatment of the Appellant by the OPS, he was not given a reasonable opportunity to improve his performance. Prior to the Service taking steps to terminate his employment and contrary to the November 19 letter, he was not allowed to complete the additional hours of coach training as set out in the letter of November 19, 2010 despite indications that his performance was improving. The Hearing Officer failed to consider these factors.

104. Finally, Mr. Champ submitted that the Hearing Officer applied the wrong standard of proof by judging the Appellant’s performance level based upon the expected capabilities of a First Class Constable. He argued that the proper standard to be applied was the expected level of performance of a Second Class Constable. The Act and Regulations do not require that all police officers must achieve the level of First Class Constable. The Act speaks to promotions if eligible.

105. The Appellant submitted that not all officers can achieve that level of competency but many serve quite appropriately at lower classifications with general competence under supervision and there is no suggestion that they are unqualified - see South Simcoe Police Service v. Constable Oliver, February 10, 2010, (Supt. Neale Tweedy, ret’d).

106. Mr. Champ stated that the Hearing Officer erred in law by rejecting that position and applying a standard of performance to the Appellant which is unfair and inappropriate.

appeal should be allowed.

Respondent’s Submissions

108. On behalf of OPS, Mr. Westwick submitted that the Unsatisfactory Work Performance is a relatively simple concept. The prosecution must prove that the process was fair and that the evidence presented on the substantive issues must be clear and cogent and support the allegations.

109. The Respondent’s position is that this case is about safety, of the

Appellant, of other officers and of the public.

110. The goal of the Service was always to assist the Appellant to achieve success in moving to a capability to patrol independently. Mr. Westwick pointed to the extreme efforts OPS took to provide training and courses to allow the Appellant to improve his performance level.

111. The discipline hearing was extremely comprehensive, fair and outlined in detail the numerous observations made by other officers concerning Const. Diafwila’s deficiencies in performance. The evidence also disclosed the many actions taken by the Service in their attempts to bring the Appellant to a level of competency to patrol independently.

112. Mr. Westwick charged that the Appellant is trying to re-litigate this case as his assertions are of a factual nature and not related to issues of law.

113. Const. Diafwila’s work performance was consistently poor over the time from January 2009 until December, 2010 as shown in the extensive internal investigation, testimony of the witnesses and in the documents filed.

114. The Respondent submitted that the Service complied with O. Reg.

268/10 and the work place policies of OPS. The identification, interpretation and application of the policies and established procedures are not matters of statutory interpretation but are

Officer. Deference ought to be accorded, therefore, to the Hearing Officer’s findings on those issues of fact as they apply to the Appellant’s circumstances.

115. In his Factum, Mr. Westwick outlined the observations and comments made by many supervisors and fellow officers of the Appellant, many of which highlighted the interest and enthusiasm of the Appellant for his job but also described the numerous problems with his abilities to perform satisfactorily the basic policing duties of a patrol officer. He pointed to the abundance of detailed evidence and documentation about the Appellant’s poor performance including problems with information gathering, investigative skills, communication skills, driving and report writing. There were consistent reports that the Appellant was not ready for independent patrol.

116. These deficiencies were repeated over an extended period of time from January 2009 through December 2010.

117. Mr. Westwick submitted that the evidence shows that OPS went well beyond their normal practices in coaching, training and mentoring Const. Diafwila, all to no avail.

118. The Respondent admitted that the Appellant performed well academically at police college, in training courses and scenarios but had a great deal of difficulty in applying the knowledge and techniques to actual day to day patrol situations.

119. Mr. Westwick stated that, at first, the OPS believed that the difficulties encountered by the Appellant were the result of cultural or linguistic issues but as the Service provided language training and as the Appellant proceeded in his career, that concern appeared to lessen. Const. Diafwila was of help in translations for the Service.

120. The Service admitted that the Appellant was approved for independent patrol from late January 2007 until December 2008 but throughout that time, similar deficiencies in performance continued including concerns about officer safety and finally the decision was made by senior staff to place the Appellant on a PIP.

provides for implementing the Unsatisfactory Work Performance Policy (“UWP”) if it appears that the officer is unable to perform the job. He argued that the UWP does not refer to a PIP or a Plan and that the UWP supercedes the Performance Review Policy. He therefore asserted that it is irrelevant what the Performance Review Policy states.

122. The Respondent stated that there is no requirement expressed in the UWP that the Appellant had to be notified in writing of the allegations of poor performance and it was simply sufficient that the officer was verbally advised.

123. Mr. Westwick argued that, while the terms of O.Reg. 268/10 are mandatory, there is no mention of requiring a particular written established procedure. Therefore, he submitted that there was no breach of policy because the January 2009 PIP was not in writing.

124. There are different policies among the various police services and it was submitted that the Hearing Officer had discretion to decide what are the applicable “established procedures” of the OPS and how they are to be applied.

125. It was submitted that the Hearing Officer has jurisdiction to hear the evidence, examine the policies and procedures and then decide whether the Service has complied.

126. Mr. Westwick acknowledged that the January 2009 PIP should have been prepared in writing at the time but the Appellant knew what areas he needed to improve as he was told verbally by his coach officers and senior supervisors. All police officers are moved from area to area from time to time but few required the extensive training that the Appellant was given to prepare for independent patrol.

127. The Appellant was given a copy of the written PIP in March 2009 and he signed it expressing positive comments and he did not make any complaints about the content.

128. The Appellant made accusations against certain coach officers later but those coach officers were trying to help train Const. Diafwila to the best of their ability. Mr. Westwick denied that their treatment of the Appellant constituted abuse or harassment and the Hearing Officer was justified in making that finding.

129. He stated, in response to the allegation that the OPS failed to keep regular entries in the Tracking Log, the UWP does not mention any requirement for Tracking Logs. This electronic process does not capture the performance issues very well and the supervisors decided not to use it in order not to overload and discourage the Appellant.

130. The Respondent argued that it may have been “one of glitches” in the manner in which the Appellant’s work performance was being assessed but there was no breach of policy not to utilize this process. He also submitted that switching the coach officers a number of times during the Appellant’s coach training was another “glitch” but was not a breach of OPS policies. The coach officers and supervisors believed that the Appellant would be helped by having fresh faces as training officers.

131. Mr. Westwick confirmed that after considerable coach training under Const. Hung under difficult circumstances, the Appellant was unilaterally transferred to the Information Desk where he remained for over one year. There did not appear to be any performance or disciplinary concerns while in that position and in the Fall of 2010 he was brought back to the patrol division to try and reintegrate to patrol duties. The PLP was developed and applied but the Appellant performed unsuccessfully.

132. The Respondent itemized the Appellant’s lack of progress in improving his policing skills from his return to that patrol division until the decision was made to request a Professional Standards investigation. The same performance issues kept recurring and OPS came to the conclusion that there would be no further progress. For reasons of officer and public safety among other concerns, the decision was to move to dismissal.

133. Mr. Westwick outlined how OPS had complied with the Regulation. He stated that OPS had established policies and procedures for assessing performance and made these available to all officers; and that the Appellant’s work performance was subject to an extensive assessment process both general and individual. In addition to standard coach training periods, the Appellant was given many additional hours of training and mentoring including language training, Professional Development Centre courses, and a PLP. The Service held numerous case conferences to assist Const. Diafwila. On many occasions he was informed of the areas in which his performance levels were failing and he was given many opportunities to improve.

134. Reference was then made to the very detailed investigation of the Appellant’s work history conducted by the Service’s Professional Standards Division. Many officers were questioned and substantial records and documents accumulated outlining his performance history.

135. Mr. Westwick submitted that, although the Appellant and his witnesses testified and provided some contradictory evidence to that of the prosecution witnesses, their testimony was not sufficient to undermine the Respondent’s position.

136. The Respondent stated that the issues in this appeal involve the following:

1. The Appellant is arguing facts not law. An appeal under Part V of the Act should not be used to re-litigate factual issues determined at the disciplinary hearing. Issues of fact are reviewable on a reasonableness standard with deference to an experienced Hearing Officer’s findings. Issues of law are reviewable on a correctness standard; see Dunsmuir; supra;

2. The Commission should not second-guess the decision of the Hearing Officer but must 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, are articulated in an intelligible, transparent

and logical manner and that the decision falls with the range of possible acceptable outcomes which are defensible in respect of the facts and law - see Dunsmuir, supra; Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board),

2011, SCC 62 (Can LII); Precious and Hamilton Police (2002) 3 O.P.R. 1561 (OCCPS); and Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 ( Div. Ct.);

3. Only if there has been an error in principle or relevant factors have been ignored should the Commission intervene. In limited cases it may be open to the Commission to reach a different conclusion than that of a Hearing Officer - see Wilson and Ontario Provincial Police (November 20, 2006, OCCPS); Favretto and Ontario Provincial Police (February 13, 2002, OCCPS); Karklins and Toronto Police Service (September 25,

2007, OCCPS); and Quintieri and Toronto Police

Service (2002) 3 O.P.R. 15 (OCCPS);

4. The Hearing Officer was not interpreting the Act or the Regulation and therefore did not commit an error of law. Rather, he was interpreting the internal policies and established procedures of OPS which were written by OPS for the OPS. O. Reg. 268/10 requires a police service to have policies and procedures for evaluating performance. These policies and procedures are not defined but are left to the individual police service to develop and apply. As such, the interpretation and application of these policies and procedures is a matter of fact and within the discretion of Hearing Officer. This is a compelling reason to afford deference to the Hearing Officer, who is an acknowledged very experienced senior officer.

137. Mr. Westwick submitted that the prosecution must establish two elements in order to prove grounds for dismissal of an officer for unsatisfactory work performance. Firstly, the evidence must be clear and convincing. This first element is fact based and not a question of law. Secondly, the Service must prove that it complied

question of fact not law.

138. The Respondent submits that if the Legislature intended to be more specific regarding how assessment of unsatisfactory work performance was to be managed, it would have inserted language in the Act or Regulation. Instead, it left it up to the individual police services to develop and apply their own policies and procedures and this approach is logical since an experienced senior police officer is best suited to be familiar with them and conduct such an inquiry.

139. To allow the appeal panel to consider supplanting the Hearing Officer’s decision and determine the issues would require a complete review of the evidence without hearing and observing the witnesses and this is not consistent with the appellate role of the Commission.

140. Mr. Westwick argued that both elements required to be established were fact-based and were satisfied through the very extensive evidence presented. The Hearing Officer rightly found that the OPS had applied a process which was fair and reasonable. The OPS and the officers who testified, displayed good faith in their attempts to assist the Appellant to succeed in his job performance.

141. The Respondent disputed the allegations that the Hearing Officer misapprehended that the Appellant had not been on independent patrol and referred to the acknowledgement of that fact in the decision. The claim that many of the alleged incidents of poor performance were stale-dated was also disputed. Mr. Westwick outlined the time periods in which the coach training took place from January 2009 until December 2010 and the notations, memos and reports were all made in a timely manner. There was no delay in bringing the charge of unsatisfactory work performance forward and the process used was reasonable. This issue is based upon factual findings and does not constitute an error of law as alleged.

and feedback was given to Const. Diafwila repeatedly throughout to entire period in issue by means of oral briefings, debriefings and in an unprecedented number of meetings arranged with his coach officers and supervisors. As such, Mr. Westwick argued that it is disingenuous for the Appellant to say that he did not receive notice nor did he fully understand the nature and type of unsatisfactory work performance. The Appellant acknowledged in his testimony the extensive feedback he received.

143. With regard to the Appellant’s submissions that the Hearing Officer failed to consider and misapprehended evidence, the Respondent’s position was that a hearing officer need not refer to every piece of evidence before them and does not err by not providing direct assessment of all testimony - see Dunsmuir, supra; and Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670, 98 O.R. (3rd) 210.

144. Mr. Westwick referred to previous decisions confirming that, in many cases, decisions are given by non-lawyers and the Commission ought not to conduct a microscopic examination of the wording used but should approach it through a probing analysis of the decision as a whole and must determine whether the findings are reasonable and support the conclusions reached - see Blowes-Aybar and Toronto (City) Police Service 2004 CanLII 34451 (ON SCDC), [2004] O.J. No. 1655 (Div. Ct.); and Mamak and Ottawa Police Service, (13

April, 2011, OCCPS).

145. Mr. Westwick pointed out the extensive amount of evidence presented to the Hearing Officer in this case and asserted that it could not be expected that that there could be comments or references to each piece of such evidence in a complex and lengthy hearing. The Hearing Officer did not commit a manifest error by not referring to each piece of evidence. His reasons clearly demonstrate that he fully understood and analyzed the evidence and the submissions and arguments of the Appellant and he pointed out in his decision the reasons for accepting evidence which he believed to be relevant and cogent and not accepting other evidence.

146. Mr. Westwick denied that the absence of reference in the decision to the testimony of other witnesses called for the Appellant in any way detrimentally affected the decision and was not an error. He pointed out that the Appellant had the opportunity to call witnesses to challenge the prosecution evidence that it had done all it could to help the Appellant succeed but he did not do so.

147. The Respondent submitted that the Performance Review Policy,

3:19, did not apply to the circumstances of this case but the

Unsatisfactory Work Performance Policy 3:14 did. Consequently breaches of the former were irrelevant and did not constitute an

error of law. There may have been technicalities, glitches or

imperfections but these were minor and fact-based and as such were within the discretion of the Hearing Officer to determine whether or not they negatively affected the outcome. The Hearing Officer considered these circumstances and rightly concluded that the issues of process should not override the substance of the

Appellant’s poor performance. This case does not involve a single incident of poor work performance but a pattern of consistent performance problems over a prolonged period and the Hearing Officer recognized this in his decision.

148. Mr. Westwick maintained that OPS had properly implemented a

PIP in January 2009 and that Plan was in effect until the Fall of

2010 when a Personal Learning Plan (PLP or ILP) was developed to assist the Appellant and to evaluate his performance during reintegration to full-time patrol duties. These Plans comply with the UWP policy and were applied in good faith in both substance and in spirit. By implementing these Plans, OPS gave the

Appellant every opportunity to improve his job performance.

149. Finally, the Respondent rejected the submission that the Hearing Officer assessed the Appellant’s performance level based upon the expectations of a First Class Constable and not a Second Class Constable as he was at the relevant times. Mr. Westwick submitted that the proper standard to apply was the officer’s qualifications to perform independent patrol duties, to be alone in a patrol car answering dispatched and self-initiated calls for service. The Hearing Officer clearly adopted this standard of assessment.

presented by multiple officers, each of whom had first-hand opportunities to work with or observe the Appellant’s work performance over a long period, was remarkably consistent and showed little consistent improvement from 2006 until 2010. All such officers were unanimous in their desire to see the Appellant succeed and acted in good faith without any bias or unfairness in their assessments of him.

151. The Respondent therefore submitted that this appeal should be dismissed.

Analysis and Decision

152. This case involves a very important principle concerning the application of Section 29(3) of Regulation 268/10 promulgated under the Police Services Act.

153. According to counsel, there have been no prior cases that have dealt specifically with the application of this statutory provision relating to a dismissal and therefore the decision of the Commission will provide guidance to police services in the Province.

154. As elaborated by both parties, the evidence presented in the disciplinary hearing was very extensive with multiple witnesses testifying and numerous documents filed as exhibits.

155. Before reviewing the decision from the disciplinary hearing, it is important that the Commission re-state the previously expressed principles guiding its role in the appeal process.

156. The standard of review for the Commission with respect to factual findings is reasonableness. The Supreme Court of Canada has described the reasonableness standard as being a deferential standard concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process but also whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law - see Dunsmuir, supra; and Newfoundland and Labrador

supra.

157. The Commission’s role on an appeal is 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 an intelligible, transparent and logical manner: see Precious and Hamilton Police, supra; and Whitney v. Ontario (Provincial Police), supra.

158. In certain limited cases, it may be open to the Commission to reach a different conclusion from the trier of fact. However, we should only intervene if there has been an error in principle or relevant facts have been ignored: see Williams and Ontario Provincial Police (1995) 2. O.P.R. 1047 (OCCPS); Wilson and Ontario Provincial Police, (November 20, 2006, OCCPS); Karklins and Toronto Police Service, (September 25, 2007, OCCPS); and Quintieri and Toronto Police Service (2002) 3 O.P.R. 1509 (OCCPS).

159. An appeal to the Commission is an appeal on the record. Unlike a hearing officer, we do not have the advantage of hearing and observing the witnesses as they testify. Deference must be accorded to a hearing officer’s findings, unless an examination of the record shows that the conclusions cannot reasonably be supported by the evidence: see Blowes-Aybar and Toronto (City) Police Service, supra.

160. While deference must be accorded to factual findings, the same cannot be said for interpretations of relevant aspects of the law. Except when the tribunal is interpreting its governing statute, the standard of review for such matters is correctness. Reasons assist the parties in knowing that they experienced a fair assessment of the facts and the law in their case by the decision maker. Procedural fairness requires sufficient reasons so that reviewing bodies are able to review and scrutinize the decision: see Law Society of Upper Canada v. Neinstein (2010) 99 O.R.

(3rd) 1 (Ont. C.A.).

piece of evidence put before him or her. Furthermore, a hearing officer’s reasons should be read as a whole and not be subjected to microscopic examination - see Woolaston v. Canada (MMI) 1972 CanLII 3 (SCC), [1973] S.C.R. 102; and Law Society of New Brunswick v. Ryan [2003] 1.S.C.R. 247.

162. Having undertaken a probing analysis of the reasons for decision, we have concluded that the Hearing Officer committed a number of manifest errors and the decision cannot stand.

163. Part VI, Section 29 of O. Reg. 268/10 sets out the requirements for establishing policies for the assessment of police officers’ work performance and the criteria that must be met before a complaint may be made against a police officer for unsatisfactory work performance.

164. Section 29 reads:

29(1) Every chief of police shall establish policies for the assessment of police officers’ work performance.

(2) The chief of police shall make the policies available to the police officers.

(3) Before the chief of police may make a complaint against a police officer of unsatisfactory work performance,

(a) the police officer’s work performance shall have been assessed in accordance with the established procedures;

(b) the chief of police shall advise the police officer of how he or she may improve his or her work performance;

(c) the chief of police shall accommodate the police officer’s needs in accordance with the Human Rights Code if the police officer

Human Rights Code, that requires accommodation;

(d) the chief of police shall recommend that the police officer seek remedial assistance, such as counselling or training or participation in a program or activity, if the chief of police is of the opinion that it would improve the police officer’s work performance; and,

(e) the chief of police shall give the police officer a reasonable opportunity to improve his or her work performance. (emphasis added)

165. By the use of the word “shall”, these provisions are clearly mandatory. Policies for evaluating performance must be established and before a chief can complain about an officer’s work performance, the processes set out in s. 29(3)(a) to (e) must be carried out: see Interpretation Act R.S.O.1990, c.I,11.

166. By the use of the word “before”, implementation of these provisions is a pre-condition to taking any steps to complain about a police officer’s work performance in the case of an internal complaint by the chief. In the case of such an internal complaint, since the chief is the officer’s employer and has the power to order the dismissal or suspension of the officer, the protections afforded to an officer in s. 29(3) provide necessary and appropriate safeguards in the vulnerable relationship between employer and employee: see Ontario (Civilian Commission on Police Services) v. Browne, supra.

167. We find that the term “established procedures” in subsection

29(3)(a) refers to those procedures contained within the policies of the police service.

168. Where the Legislature has delegated authority to a chief of police to make policies for assessment of police officers’ work performance, once established, those policies and their

application become mandatory, particularly where the chief makes a complaint under Section 29(3). That is not to say that such policies are permanent. The chief is empowered to amend policies from time to time but it must be recognized that such policies create employment standards which govern the conduct of all service personnel.

169. In our view, by enacting Section 29 of O. Reg. 268/10, the Legislature intended to grant statutory protection to police officers by, in essence, codifying the common law on dismissal for poor work performance. The policies and the procedures established under Section 29(1) become mandatory pre-conditions. A failure to follow those policies vitiates any process initiated to dismiss an officer for unsatisfactory work performance.

170. OPS had two policies in force at the relevant times in this case.

Policy No. 3.19, being a Performance Review Policy establishing a performance appraisal system for the development and ongoing

assessment of members’ performance. The preface states: “The

purpose of this policy is to outline the procedures to be followed for developing, documenting and evaluating Member

performance”. [Exhibit 31] (emphasis added)

171. That performance review process involves three components: (1) an interview, which includes a meeting between the member and the supervisor to discuss and document performance expectations, (2) tracking by supervisors, through daily performance entries in a member’s Tracking Log, and (3) a final performance review with the member. The member’s immediate supervisor is responsible for ensuring that those three components are carried out. The performance review is to be completed annually within 30 days of the anniversary of the member’s hire date. Following such review, the cycle begins again.

172. Section 16 of Policy No. 3.19 sets out these requirements in detail and uses wording which indicates that the processes are mandatory. Section 8 provides for a member to contest their Performance Review and may request a review by a second level supervisor. Section 9 provides that unsatisfactory work

Performance policy.

173. Policy No. 3.14 is the Unsatisfactory Work Performance Policy.

The preamble states that “OPS shall create an environment that is supportive of its members and allows them to address work performance issues in a supportive and non-discriminatory manner.” [Exhibit 55]

174. Section 6 of that policy repeats the requirements of Policy 3.19 that Performance Appraisals shall be completed on each member of the Police Service, whether full or part-time, on a regular basis. (emphasis added)

175. Section 7 requires that all complaints of unsatisfactory work performance shall be investigated to include a review of the incident, the previous work history of the member, and any remedial action taken to improve performance.

176. Section 8 refers to implementation of a plan, (PIP) and the investigation and states that after such steps have been taken and there is a determination that the member is unwilling or unable to perform satisfactorily, then the chief may lay a charge of Unsatisfactory Work Performance.

177. Under the heading “Roles and Responsibilities”, Section 3, the policy states that after identifying unsatisfactory work performance, in consultation with the member and where appropriate, Human Resources establish and implement a plan consistent with Ontario Regulation 123/98 (sic) (now Reg.

268/10), to support the member in achieving satisfactory performance. (emphasis added)

178. Section 4 provides, amongst other essential requirements, that while implementing the Unsatisfactory Work Plan, supervisors shall ensure that there are no barriers impeding the member’s work performance and shall continually update the member on their progress towards meeting the standard.

29(3) of O. Reg. 268/10 and its Policies 3.19 and 3.14? In our view the Service did not comply.

180. A review of the record confirms that there were no formal

Performance Reviews conducted other than those of 2007 and

2008. OPS was required, by their own policies, to conduct Performance Reviews within 30 days of the anniversary of the Appellant’s hire date, specifically in April 2009 and again in April

2009. This they did not do.

2010. There is evidence in the record that the required daily tracking entries by supervisors into Const. Diafwila’s Tracking Log were not consistently maintained. Rather than relying upon such entries, as the policies required, reliance was placed upon notes, memos and reports from coach officers and other officers regarding the Appellant’s performance. The contents of many of these documents were not fully discussed with nor even disclosed to the Appellant at relevant times and were not filed in his personnel record.

2011. In January 2009, the Service purported to implement a PIP for the Appellant. The basis for the plan was the alleged incidents of poor performance as outlined in the 2008 Performance Review. In initiating this plan, however, the Service did not consult with the Appellant as required by Policy 3.14. It was acknowledged by the Service that Const. Diafwila asked for a copy but did not actually receive a written copy until it was released to him in March 2009.

2012. The Respondent’s position that the PIP was in force and extended into December 2010 is not supported by the evidence. The letter from the Appellant’s senior supervisor stating that the PIP was no longer in force effectively terminated that Plan on November 19,

2013. In our view, the contents of that letter do not constitute a supplementary PIP. The form does not contain similar wording to the March 2009 PIP and does not clearly indicate that a failure to

perform to acceptable standards may result in action to terminate

the Appellant’s employment.

many of the basic policing duties, did not achieve the performance standards deemed acceptable to the Service to carry out independent patrol duties. Many officers and supervisors expressed serious concerns about his policing skills, particularly in relation to the safety of officers, the public and the Appellant himself. The record of the Disciplinary Hearing confirms that OPS undertook many significant efforts to assist Const. Diafwila to achieve success. The Service went beyond the normal assistance given to officers, by providing additional coach training hours, language training and realistic policing scenario training through the Professional Development Centre.

185. We acknowledge and appreciate Mr. Westwick’s submission that the Service, in the remedial actions it took to help the Appellant improve his performance level, complied with the spirit and intent of O. Reg. 268/10. We accept that OPS wanted to see the Appellant succeed and there was no bad faith on the part of any personnel in dealing with the Const. Diafwila’s circumstances.

186. Mr. Westwick advanced the argument that the policies of the Service are not mandatory and are open to interpretation and application in the discretion of the Hearing Officer, an experienced senior police officer. He referred to allowing the policies to be considered guidelines and that there was some “wiggle room” in their application. He supported the Hearing Officer’s comments that, while process is important, the issue of performance is equally important.

187. With respect, we do not agree that the policies are not mandatory.

We also do not agree that the Hearing Officer has the jurisdiction to interpret and apply the policies in his discretion or that there is

so-called “wiggle room” in their interpretation and application or in determining whether the Service has complied in substance. Such discretion could lead potentially to unequal interpretation and application of policy in different factual circumstances resulting in

inconsistent, unequal and unfair treatment.

188. As stated, the policies are established by the chief and create employment standards governing the duties and responsibilities of officers and their supervisors by which all personnel are bound

rights. As the Regulation requires, the purpose is to provide protection for police officers in a vulnerable employment situation and to ensure that when their employment is in jeopardy for alleged unsatisfactory work performance, they are afforded natural justice in the process of final determination. Police officers hold a special position and, for that reason, there must not be any implication that they are being improperly removed from office: see Ontario Civilian Commission on Police Services v. Browne, supra;

189. We do not find a dichotomy between process and substance. Both are equally critical. However, in order to be able to deal with performance issues, the process mandated by the established policies must first be strictly followed.

190. In our opinion, the process involves a two-step procedure. The police service must strictly apply its performance review policy. Having done so, if the officer’s evaluation indicates unsatisfactory work performance, then the service may proceed to the second step of applying the unsatisfactory work performance policy. The two steps are integral to the whole process of determining whether an officer’s performance issue rises to a level to justify initiating a chief’s complaint under Section 29(3).

191. A review of the record of the disciplinary hearing disclosed that the OPS failed to follow its Performance Review Policy 3.19 by:

(a) Not completing the mandated performance reviews for 2009 and 2010, including, the initial interview, review of all daily tracking log entries, and conducting a formal performance review interview at the end of the cycle;

(b) Not ensuring that the Appellant’s supervisors made regular consistent daily entries into the Appellant’s Tracking Log;

(c) Not providing performance assessments to the

Appellant in writing;

(d) Not affording the Appellant the opportunity for input, objection or comment on the notations, reports and memos of coach officers and supervisors at the relevant times of the occurrences; and

(e) Relying upon memos, notes, reports and verbal comments by coach officers, other officers and supervisors without ensuring that copies and information were made available to the Appellant.

192. OPS also did not follow its Unsatisfactory Work Performance

Policy 3.14 by:

(a) Not complying with Section 6 under the heading “General” thereof requiring completion of Performance Appraisals of the Appellant for relevant years in issue, 2009 and 2010;

(b) Not complying with Section 3, under the heading “Roles and Responsibilities, Supervisors”, requiring consultation with the Appellant in establishing and implementing a Plan (PIP); and

(c) Not ensuring that there were no barriers impeding the Appellant’s work performance by not resolving the Appellant’s workplace harassment complaint.

193. We do not agree with the Respondent’s position that there may have been glitches and imperfections in the process but overall the Appellant was treated fairly. We find that the above described failure by OPS to follow its own policies is fatal to the implementation of a chief’s complaint under Section 29(3) of O. Reg. 268/10.

194. On that ground alone we would grant the appeal.

195. The Hearing Officer dealt with the issue of compliance to the

Regulation by stating the following:

• While I concur that process is important, so too is evidence of unsatisfactory work performance

particularly in a situation where an individual is expected to work independently and can make life and death decisions while doing so.

• A fundamental question that I need to address is whether or not the process that was undertaken by the Ottawa Police Service was fair, consistent and in pursuant to the Police Services Act. Moreover did the process adequately advise Const. Diafwila that his performance was unsatisfactory, that his performance was under scrutiny, that performance improvements were expected and required and did the process provide Const. Diafwila with the opportunity to improve his performance in order to become qualified for independent patrol.

• The obvious intent of the Regulation …is to ensure that there is no opportunity for a police service to terminate someone’s employment in an unfair manner.

• Because of the unusual and unique nature of the situation i.e. the officer had exceeded his probationary period, but nonetheless was not yet ready for independent patrol, the normal procedures for assessing performance would not readily apply. Consequently, the police service had to create a system whereby Const. Diafwila’s performance could be observed, assessed and recorded to assist him in overcoming the obstacles to his success. The system included daily coaching/mentoring by police officers who were deemed qualified by their supervisors and

/or managers. The coaching/mentoring included ongoing discussions and evaluations on a call-by-call or daily basis. ….These ongoing discussions and other notations ought to have made Const. Diafwila aware of where he needed to improve.

196. The Hearing Officer acknowledged the importance of both process and substance of performance and outlined the correct questions that he had to address regarding the process but then

procedures for assessing performance would not readily apply”. By doing so, the Hearing Officer committed a fundamental error of law.

197. It was not appropriate for OPS to create a separate system for assessing a member’s performance, on an ad hoc basis, outside the mandated requirements of the Service’s policies.

198. The analysis of the Reasons for Decision, indicate that the Hearing Officer considered the Appellant’s work performance to be a priority to the mandated process. Most of the Reasons concentrate on the verbal testimony and documentary evidence entered through witnesses for the Service detailing the many reported incidents of the Appellant’s alleged poor work performance of basic policing duties, the various coach officer and supervisor efforts and plans established to assist him in meeting the expectation of independent patrol. Concerns over officer and public safety are repeated a number of times throughout the Decision.

199. In his analysis of that evidence however, the Hearing Officer erred in failing to deal with contradictory evidence called by the Appellant. Important and material evidence, that the Appellant had been on independent patrol for two years and had no unacceptable performance ratings in his Performance Reviews in

2007 and 2008, had been promoted from Fourth Class Constable to Second Class Constable, had performed satisfactorily at the Divisional Information Desk and was noted to be a valued

member of OPS, was not mentioned by the Hearing Officer. This is troubling since there was nothing in the reasons to indicate any

issue regarding the Appellant’s credibility nor the credibility of his witnesses: see McCormick v. Greater Sudbury Police Service,

2010, ONSC 270.

200. There is mention of specific testimony of a number of coach officers and supervisors but, there is none referencing Const. Diafwila’s testimony nor the witnesses called by him. This omission constitutes a manifest error.

decided and the “why” as related to very material evidence. Where the decision is against a party, the absence of an explanation regarding that party’s evidence leaves doubt as to whether his evidence was rejected, discounted or not even considered. As such, the justification, transparency and intelligibility of the Reasons are called into question: see Dunsmuir, Williams, Wilson, Karklins and Quintieri, supra.

202. The review of the record and Reasons disclosed errors in the factual findings. At page 14 of the decision, the Hearing Officer referred to the Appellant being offered an additional 500 hours of coach/mentoring. He stated thereafter: “Even after this unusually long and concentrated program, Const. Diafwila was still not deemed to be qualified for independent patrol”. This implies a perception that the Appellant was never ready for nor ever going to achieve that level. The evidence on the record regarding coach/mentor training does not support that finding. The Appellant was in fact approved for independent patrol after a Field Training Evaluation in 2007 and was placed on such patrol for two years.

203. The Hearing Officer referred to the many coach hours, ongoing verbal discussions, briefings, notations and meetings held with the Appellant over a lengthy period and concluded that Const. Diafwila had the opportunity to know the required work performance improvements, to obtain any assistance and to demonstrate his ability to improve and perform the duties of independent patrol. The Hearing Officer did not refer to the fact that many of the records, notations and reports of coach officers and supervisors were not made available to the Appellant at the time and some of the meetings were held by supervisors in his absence. Nor did he consider that OPS never dealt with the Appellant’s internal harassment complaint. These omissions of material evidence constitute an error.

204. Deference is to be accorded to the Hearing Officer on factual findings; however, we cannot ignore findings for which there is no evidentiary foundation or findings which ignore relevant material evidence.

205. The importance of documentation, rather that verbal communications only, was acknowledged in testimony by the OPS Human Resources Director to confirm what was communicated to the member, avoid disputes and allow the member time to digest the communication and contest or comment on any negative assessment. In her testimony, she acknowledged that OPS had not done well in its treatment of the Appellant.

206. The entire thrust of the policies of the OPS is to ensure that any performance issues are dealt with in a fair and just manner. After reviewing the record, we conclude that the Service has not proceeded in such a fair, open and transparent process in arriving at the decision to issue the Chief’s complaint.

207. We do not agree that this appeal involves a re-litigation of the disciplinary hearing as being based only on alleged errors of fact. After a thorough review of the Reasons for Decision, we have concluded that the Hearing Officer committed a number of errors in law and in his findings of fact.

208. The Respondent produced an extensive amount of evidence to establish on clear and convincing evidence that the Appellant’s work performance was unsatisfactory. Unfortunately, because the OPS did not strictly follow its own established policies for assessing the Appellant’s work performance, it cannot be said that this standard of proof has been met. It also cannot be said that the Service complied with section 29(3) of O. Reg. 268/10.

209. With respect, good faith and compliance with the general intent and spirit of Section 29(3) is not sufficient to justify the laying of a chief’s complaint.

210. In terms of the penalty disposition, we note that the Legislature, by enacting Regulation 268/10, specifically chose to segregate the method for dealing with unsatisfactory work performance from the provisions dealing with misconduct. In such circumstances it may not be appropriate to apply the same principles and criteria as have been determined in cases of misconduct. In view of our conclusions herein, it is not necessary that we comment further on that aspect.

29(3) thereof, establish pre-conditions to the issuing of a chief’s complaint for unsatisfactory work performance. We also conclude that OPS did not comply with the aforesaid mandatory requirements and is not therefore entitled to have issued a chief’s complaint.

212. We have concluded that the Hearing Officer committed manifest errors of law by failing to conclude that OPS did not comply strictly with Section29(3)(a) by not following its Policies Nos. 3.19 and

3.14, by failing to consider that the actions by OPS in relying on verbal performance reports and failing to provide timely written performance assessments to the Appellant, amounted to an unfairness.

213. We also find that the Hearing Officer committed manifest errors of fact based upon the record resulting in findings which are unreasonable.

214. In the result, our answer to the issues set out in paragraph 9 herein is as follows:

(a) Compliance with Regulation 268/10, Section 29(3) is a pre-condition to instituting a chief’s complaint against a police officer for unsatisfactory work performance;

(b) The OPS did not comply with Section29(3) by failing to comply with its own established procedures;

(c) Substantial compliance is not sufficient to satisfy the requirements of the Regulation;

(d) A hearing officer does not have discretion in the interpretation and application of established procedures under Section 29(3)(a);

(e) The Hearing Officer was not correct in concluding that the measures taken in good faith by OPS to improve the work performance of the Appellant were

intent and spirit of the Act and Regulation 268/10;

(f) There was a breach of the rules of natural justice and procedural fairness;

(g) The Hearing Officer committed errors of fact and law in arriving at the conclusions within his reasons;

(h) The reasons for decision do not satisfy the requirements as established in Dunsmuir, supra.

215. For all of the above reasons, the appeal is allowed. Const.

Diafwila is to be reinstated as a Second Class Constable with the

Ottawa Police Service.

DATED AT TORONTO THIS 5TH DAY OF MARCH, 2014

Roy B. Conacher, Q.C.

Jeffrey L.B. King, Q.C.

Georges Bedard

Member (OCPC)

Member (OCPC)

Member (OCPC)