OCPC #15-01
ONTARIO CIVILIAN POLICE COMMISSION
IN THE MATTER OF THE POLICE SERVICES ACT, R.S.O.
1990, C.P.15, AS AMENDED
Citation: Terry v. Durham Regional Police Service, 2015 ONCPC 1
BETWEEN:
CONSTABLE ANDREW TERRY
APPELLANT
-and-
DURHAM REGIONAL POLICE SERVICE
RESPONDENT
DECISION
Panel: Roy Conacher, Q.C., Vice-Chair
Zahra Dhanani, Member
Hearing Date: July 28, 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
Mr. William MacKenzie: Counsel for the Appellant
Constable Andrew Terry
Mr. Ian Johnstone: Counsel for the Respondent
Durham Regional Police Service
Introduction
Constable Andrew Terry (“Const. Terry” or the “Appellant”), an officer with the Durham Regional Police Service (the “Respondent” or “Service”), was charged with one count of Insubordination under section 2 (1) (b) (ii) of the Code of Conduct, (the “Code”) as set out in a Schedule to Ontario Regulation 268/10 and therefore, contrary to section 80 (1) of the Police Services Act (the “Act”).
The details of the charge were contained in a Notice of Hearing dated January 28, 2013,which stated that between January 11, 2012 and January 22, 2013, Const. Terry did without lawful excuse, disobey, omit or neglect to carry out a lawful order, contrary to the said section 2 (1) (b) (ii) of the Code.
On May 24th, 2013 a disciplinary hearing was held before Hearing Officer, Inspector David Saliba (the “Hearing Officer”).
On July 23rd, 2013, the Hearing Officer issued his decision, finding Const. Terry guilty of Insubordination.
On November 19th, 2013, the Hearing Officer released his decision imposing a penalty of working 24 hours without pay. The time was to be worked at the discretion of the Appellant’s Unit Commander and to be completed during Const. Terry’s regular scheduled time off without
compensation entitlement under the Uniform Collective Agreement while serving the penalty. The penalty was to be served within three (3) months of the day of sentencing.
Background
Const. Terry had been served with a Notice of Suspension with pay (the “Notice”) on January 11, 2012 which contained, inter alia, a provision under paragraph 8 d., requiring him to report forthwith any income earned from other employment while on suspension and notified him that under s. 89(7) of the Act, his pay for the period of suspension would be reduced by the amount earned from other employment during that period.
During the period from January 11, 2012 until December
10, 2012, while under suspension, Constable Terry was engaged in other employment and failed to disclose income
derived from such employment as was required by the
terms of the Notice of Suspension.
By letter dated December 10, 2012, the then Chief of Police of the Service, Michael Ewles, (the “Chief”) ordered the Appellant to disclose the particulars of his other employment, including full disclosure of his income earned from other employment and the number of hours worked per week while he was under suspension. The order required Const. Terry to provide that information by January 4, 2013.
Const. Terry responded by letter dated January 2, 2013 setting out his explanation for not providing the information. The letter did not disclose the information required by the Chief’s order.
The response from the Appellant was deemed unsatisfactory and matter was referred to the Professional
Standards Unit of the Service. Const. Terry was required to attend a compelled interview to answer questions regarding his failure to comply with the Chief’s order. That interview took place on January 22, 2013.
As a result of the Appellant’s alleged failure in that interview to provide answers in compliance with the Chief’s order that were satisfactory to the Service, the Appellant was charged with Insubordination and served with the Notice of Hearing.
Const. Terry has been employed by the Service for over 27 years. He has no formal prior disciplinary record.
While he has been employed by the Service, Const. Terry has also maintained a secondary source of income for over
25 years. He has had many different forms of contracted work, including, but not limited to, snow plowing,
landscaping, scuba diving, mechanical work and
renovations.
As noted, on January 11th, 2012 the Appellant was suspended from duty with pay pursuant to section 89 (1) of the Act. The reasons for suspension are not before the panel nor relevant to the issues to be determined.
On the same day, he was served with the Notice which he acknowledged and signed.
Const. Terry appeals the conviction only.
Decision
- For the reasons set out below, we dismiss this appeal.
Preliminary Matter
In its factum, the Respondent requested that the Commission issue an order dismissing the Appellant’s appeal and order that the Hearing Officer’s decision on penalty be set aside and replaced with an increased penalty, namely that Const. Terry be demoted for a period of at least 12 months. The Respondent takes the position that the penalty was grossly inadequate when considering the seriousness of the misconduct.
The Respondent submitted that the Hearing Officer’s decision on penalty was unreasonable and resulted in a manifest error by failing to give appropriate weight to all applicable sentencing factors. Mr. Johnstone referred to the established principles of consistency in sentencing as expressed in Schofield and Metropolitan Toronto Police OCPC#84-12 and pointed to a number of cases that resulted in penalties for insubordination ranging from demotion to dismissal for flagrant refusal to obey an order from superior officers. (see - Re Teamsters Union, Local
880, and J. Kovinsky & Sons Ltd. [1971] O.L.A.A. No.15. (Palmer); Constable Douglas Hill and Halifax Regional Police, NSPRB-99-0057, 99-0111 & 98-0050; Constable David Packer and Metropolitan Toronto Police Force, (February 15, 1990, OPC) and Constable Brian Aguiar and Toronto Police Service, (November 29, 2010, OCPC).
- The Appellant submitted that the first time the issue of the increased penalty request was raised was in the Respondent’s Factum. No Notice of Appeal was filed within the times prescribed by the rules. Further, there is no right of the Respondent to appeal a penalty decision of its own designated hearing officer. Under section 87 (1) of the Act, only police officers or public complainants can appeal and there is, therefore, no jurisdiction in the Commission to hear such a request. Mr. MacKenzie pointed out that this appeal is against the conviction decision only, not penalty.
commencement of the hearing, the Panel questioned its jurisdiction to hear such a request within the context of an appeal made by the Appellant.
As a matter of principle, we note that the decision of the Hearing Officer is a decision made by a tribunal designated by the Chief. Under the circumstances herein, it would be highly unusual for the Respondent to be permitted to appeal against the decision of its designated Hearing Officer. Furthermore, there is an issue of procedural fairness. A responding party cannot raise an issue on appeal simply by putting forth an argument in the context of responding to an appellant officer’s appeal without having, at the very least, served and filed a Notice of Appeal and affording an opportunity to respond.
Furthermore, and, notwithstanding the foregoing comments, the provisions of section 87 of the Act governing appeals to the Commission, do not specifically provide for appeals by a chief or a service against what is, in effect, their own decision. Section 87(1) of the Act references appeals only by police officers or complainants.
The case law is clear that a chief of police cannot appeal a decision of a hearing officer at a Part V disciplinary hearing. (see - Godfrey v. Ontario Police Commission (1991 1991 CanLII 7115 (ON CTGD), 5 O.R. (3rd) 163 (Div. Ct.); Silverman and Ontario Provincial Police, (December 18, 2000 OCCPS). While the Act has been amended since these cases were decided, their ratio still applies. It is clear that a Part V disciplinary hearing is a chief’s hearing in which the hearing officer is delegated by the chief to conduct the hearing and therefore a chief cannot appeal his or her own decision.
We therefore find that this Panel has no jurisdiction to consider the Respondent’s request and purported penalty appeal and we deny the Respondent’s requested order to
increased penalty of demotion for 12 months.
Analysis
Standard of Review
The principles to be applied by the Commission on an appellate review of a disciplinary decision are well settled. The standard of review is clear. A Hearing Officer must interpret and apply the general law correctly. His or her findings of fact, and decision regarding penalty, must be reviewed on a reasonableness standard: see Dunsmuir v. New Brunswick 2008 SCC 9, [2008] S.C.J. No. 9: see also Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 S C C 62.
The Courts have held however, that when an administrative appellate tribunal is reviewing an alleged error of law that requires an interpretation of its own statute, the standard of review is reasonableness: see Constable Gough v. Peel Regional Police Service, [2009] CanLII 12112 (ON SCDC); McLean v. British Columbia (Securities Commission, [2003]
3 S.C.R. 895; and Constable Hampel v. Toronto Police
Service [2009] O.J. No. 1463.
The Supreme Court of Canada has described the standard of reasonableness as being 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.
The role of the Commission is not to second-guess the decision of the 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 on clear and cogent evidence and are articulated in an intelligible, transparent and logical manner: see Dunsmuir, supra, Precious and Hamilton Police (2002) 3 O.P.R. 1561, (OCCPS); Whitney v. Ontario (Provincial Police) [2007] O.J. No. 2668 (Div. Ct.).
- In certain limited cases it may be open to us to reach a different conclusion from the one reached by the Hearing Officer. However, we should only intervene if there has been an error in principle, or relevant factors have been ignored: see Williams and Ontario Provincial Police (1995)
20 P.R.1047 (OCCPS); Favretto and Ontario Provincial Police (February 13, 2002, OCCPS); Karklins and Toronto Police Service, (September 25, 2007, OCCPS); Cate v. Peel
Regional Police Service, (December 5, 2002, OCCPS).
- An appeal to the Commission is on the record. We do not have the advantage of hearing and observing the witnesses as they testify. Therefore, deference must be accorded to the Hearing Officer’s findings unless an examination of the record shows that the Hearing Officer’s conclusions cannot reasonably be supported by the evidence: see Blowes- Aybar and Toronto (City) Police Service, 2004 Carswell Ont.
1583 (Div. Ct.)
Issue on Appeal
The sole issue raised by the Appellant on this appeal is: Did the Hearing Officer err in law by failing to properly interpret and apply the statutorily mandated exception detailed in section 89 (8) of the Act to the facts of the case?
The questions needed to be considered in this appeal are:
a) Was the Appellant entitled to rely upon the exception contained in section 89(8) of the Act to relieve him from the obligation to report his income during his suspension as was, prima facie, required under the provisions of section 89 (7), the Notice of Suspension and the Chief’s order?
b) If the answer to (a) is yes, notwithstanding such exception, was the Appellant still obligated to provide the required information as set out in the Chief’s order of December 10, 2012 pursuant to the application of sections 41 and 49 (3) of the Act?
c) Was the Hearing Officer’s interpretation and application of sections 89 (8) of the Act reasonable?
d) If yes, was the finding of Insubordination supported by the evidence?
Appellant’s Position
The primary submission of the Appellant is that section 89 (7) of the Act does not apply to earnings from other employment commenced before the period of suspension. In other words, because Const. Terry was earning an income from secondary employment in his contract work that commenced long before his period of suspension started, he is not required to report that income and is entitled to keep that income and not have it deducted from his pay received from the Service.
Mr. MacKenzie relied upon the rules of statutory interpretation that legislation be given its ‘plain and ordinary’ meaning. He cited Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771 2005 SCC 70, [2005] S.C. J. No. 72 (SCC) as support for that position.
He submitted that there could be no other rational or reasonable interpretation as the legislators clearly envisioned the prospect of police officers having secondary employment.
Mr. MacKenzie pointed out that Const. Terry has had secondary employment for over 25 years while also employed with the Service. In fact, he argued that the Service actually took steps to accommodate the Appellant by authorizing him to switch shifts and had not raised an issue with his secondary employment for the past 25 years.
The Appellant conceded that the Chief does have authority under section 49(1)(c) of the Act to make inquiries of a police officer whether or not his secondary employment activities may constitute full time employment with another person. He accepts the decision of the Commission in Constable Leahy v. London Police Service (December 13,
2011, OCPC) as binding and authoritative and clearly places the onus on an officer to disclose full particulars of
his secondary employment in certain circumstances as set
out in section 49 of the Act.
- While acknowledging the authority of the Chief, Const.
Terry submitted that there is a distinction between the facts of the Leahy decision and this case because in the former, the officer was charged and convicted primarily for not reporting the number of hours worked in secondary employment whereas in this case, the Appellant is charged with failing to disclose income contrary to the lawful order of the Chief.
- Mr. MacKenzie pointed out that the Notice does not speak to any issues concerning the application of section 49(1)(c) of the Act nor section 89(8) and only refers to section 89
(7). He submitted that the particulars set out in the Notice of Hearing only refer to section 8 d. of the Notice and not to the Chief’s letter dated December 10, 2012 containing the purported Chief’s orders.
Mr. MacKenzie therefore submitted that the Hearing Officer erred in concerning himself with the Chief’s letter which expresses concern that the number of hours being dedicated to other employment may constitute full-time employment for another person contrary to section 49 (1)(c). Counsel argued that the Notice of Hearing contains no reference to the issue of number of hours worked and the Appellant has not been charged with Insubordination for failing to disclose the number of hours worked.
The Appellant submitted that the error made was the Hearing Officer’s focus on the issue of whether Const. Terry was in full-time employment with another person. This issue was raised by the Chief in his letter of December 10,
2012 as an order under section 49 (1), but the Hearing Officer erred by not focussing on the Chief’s first order contained in the Notice which formed the basis of the particulars in the Notice of Hearing.
Mr. MacKenzie submitted that by committing this error, the Hearing Officer never focussed on the substantive issue of whether or not the Chief’s order in the Notice as repeated his December 10, 2012 letter, was contrary to section 89 (8) of the Act and therefore was not lawful.
Mr. MacKenzie relied upon two arbitration cases for the proposition that any rule, directive or order of a chief that contravenes the Act is deemed to be of no force and effect: see Toronto Police Services Board v. Toronto Police Association (March 20, 2003, Arbitration Award); Regional Municipality of Peel Police Services Board v. Peel Regional Police Association (April 19, 2006, Arbitration Award). He alleged that, in the context of this case, by purportedly
worked, the Chief went beyond what the legislation entitled him to do and the order issued was therefore null and void.
- He pointed out that neither the Notice nor the order contained in the Chief’s letter of December 10, 2012 took into account that the Appellant’s income from secondary employment fell under the exception contained in section
89(8) of the Act, and, therefore, he argued the orders in the Notice and the letter from the Chief requiring the Appellant to disclose his income from other employment were of no force and effect. Consequently, the Hearing Officer failed to properly consider and recognize that the orders given by the Chief were unlawful.
- Mr. MacKenzie requested that the appeal be allowed and the conviction be quashed.
Respondent’s Position
Mr. Johnstone, on behalf of the Respondent, disputed the Appellant’s argument that the Service had accommodated the officer to allow him to do his secondary employment. He pointed to Const. Terry’s admission during the compelled interview that he had asked to switch shifts so that he would not be embarrassed in front of the other officers in his unit.
He submitted that the real issue is: can an officer benefit from being suspended by getting the time off with pay and also be able to work potentially full-time at secondary employment? He stated that under such circumstances, there is a duty on the Chief to make inquiries to determine whether the officer is, in fact, working full-time in other employment.
and has never provided the information ordered by the
Chief.
He submitted that section 89 (7) clearly establishes that a police officer who is suspended with pay, must report his or her income from secondary employment, and the pay received from the police service during the period of suspension shall be reduced by the amount that the officer earns from such other employment during that period.
Mr. Johnstone stated that in such case the Service must inquire to make sure the officer is complying. He referred to the Chief’s duties as described in section 41 (1) and the power granted under section 49 of the Act and he also referred to the Commission’s decision in Leahy, supra.
The Respondent’s position is that an officer who is under suspension should not benefit financially where that officer is still being paid by the Service. The legislature did not intend to create a scheme that would allow a police officer, who is under suspension and who then has more available time to work at secondary employment, to be able to claim a complete exemption from the requirement to account for the income earned from that employment. Mr. Johnstone submitted that the Appellant’s argument that section 89(8) exempts the officer from complying is untenable in light of the provisions of the Act and would lead to an absurd result: see Blue Mountain Resorts Ltd. v. Ontario (Ministry of Labour), 2013 ONCA 75.
He referred to the common law doctrine of necessary implication, in statutory interpretation, that every statute is understood by implication to contain all provisions necessary to implement its object and purpose. He cited section 28 of the Interpretation Act R.S.O., 1990.c.I.1. as the codification of that doctrine. He asserted that the provisions of the Act must be interpreted to grant the Chief
earned from a secondary employment to determine whether that officer is in full-time employment with another person. Without such power, the ability of the Chief to ensure compliance with the statutory requirements would be rendered of no force and effect.
Mr. Johnstone further argued that the Legislature could not have intended that section 89 (8) should be interpreted to excuse an officer from complying with the lawful orders of the Chief. He submitted that if the officer is excused from complying, police officers, who are already engaged in secondary employment before suspension, could simply refuse to produce information related to that secondary employment notwithstanding any order from their Chief.
The Respondent submitted that the orders of the Chief, contained in the December 10, 2012 letter to the Appellant, were lawful and were not complied with. In his compelled interview and also in his testimony at the disciplinary hearing, Const. Terry was evasive and obfuscating in his answers despite a number of requests for the information. The Hearing Officer, quite rightly, found his evidence not credible.
Mr. Johnstone submitted that Const. Terry had other options in pursuing any disagreement about whether his secondary income should be deducted or not. As in Leahy, supra, reliance on legal advice is not an excuse for disobeying a lawful order.
Findings
- From pages 2 to 6 of the decision, the Hearing Officer reviewed the factual background and key evidence that he considered to be relevant to the issues before him. He referred to the key provisions of paragraph 8 d. of the Notice that notified the Appellant that he was required to
while on suspension and, secondly, notified Const. Terry that his pay from the Service would be reduced by the amount earned from such other employment during his suspension.
The Hearing Officer then reviewed the Chief’s letter dated December 10, 2012 and correctly identified that the letter contained two separate orders, firstly, to provide to the Chief the number of hours the Appellant was dedicating to the other secondary employment and secondly, the full disclosure of his income earned from this other employment. The Hearing Officer combined these two orders and referred to them as one order in his decision.
He stated as follows on page 3 of his decision:
A letter from the Office of the Chief of Police dated Monday December 10, 2012 was provided to P.C. Terry. This letter was tendered into evidence as exhibit
#4. Within this letter are the concerns surrounding
“other employment” and related duty to report while
under suspension. In addition, Chief Ewles states:
I am also concerned that the number of hours you are dedicating to this work may constitute full time employment for another person...
This letter outlines the requirements as previously established within section 8 (d) (sic) of the Notice of Suspension. Within this letter, an order is given for P.C. Terry to provide full disclosure of the number of hours worked per week while under suspension. In addition, the letter orders full disclosure of income earned from other employment. (emphasis added)
explanation dated January 2, 2013 together with the audio recording of evidence given by the Appellant in his compelled interview. He outlined the position of the Appellant regarding his history of secondary employment and his assertions that he had not increased his income from prior years but, in fact, had suffered a loss of income.
The Hearing Officer also noted the Appellant’s answers that he did not provide the income information because he had received legal advice that he did not have to do so based upon the exemption in section 89 (8). Const. Terry also asserted that he did not know what income was or how it was defined and whether the term income referred to gross income or net income. The Hearing Officer noted the Appellant’s claim that he didn’t make any income or didn’t know the amount until the taxes and expenses were calculated. The Hearing Officer reviewed the Appellant’s testimony that the income was earned by his companies but also mentioned Appellant’s admission that he reported it on his personal tax returns.
The Hearing Officer also considered Const. Terry’s evidence that he intended to provide the income information but could not do so until his accountant was able to complete the financial statements.
Having reviewed the statements made by Const. Terry in his compelled interview and also in his viva voce evidence at the hearing, there was ample evidence to justify the Hearing Officer’s conclusion that the Appellant’s testimony was inconsistent.
The Hearing Officer summarized the case law submitted to him by the parties. He correctly outlined the factors to be considered for determining Insubordination as outlined in Cristiano v. Metropolitan Toronto Police Service, (February
4, 1997, OCCPS), and stated the findings he made related
order issued to the officer; (2) if so, was the order lawful; (3) if the order was lawful, did the officer disobey, neglect or omit to carry out the order; (4) if the officer did not comply, did the officer have a lawful excuse for disobeying or neglecting or omitting to carry out the order?
In pages 8 to 13 of his decision the Hearing Officer sets out his assessment of the evidence in a clear and direct path of reasoning for his conclusions. He correctly identified the two categories of Insubordination and applied the second principle, being a refusal to comply with orders: see- Ceyssens, Legal Aspects of Policing, Earlscourt Legal Press Inc., 26th edition, March 2012.
He went on to consider the four part test referred to in
Cristiano, supra, and to apply the facts to each factor.
On the first issue as to whether Const. Terry received an order, the Hearing Officer reviewed the contents of the Chief’s letter of December 10, 2012 and clearly answered the question in the affirmative. We find no error in the conclusion drawn.
On the second issue of whether the order was lawful, the Hearing Officer accepted the fact that Const. Terry had maintained secondary employment for 25 years as specified in section 89 (8) of the Act, and because such other employment commenced prior to his suspension, he would normally be permitted to perform these secondary duties.
However, the Hearing Officer then stated that the Chief has a duty to investigate if his members are working at full time employment for another person. He referred to the factual circumstances and the decision in Leahy, supra, which he found “to be parallel and insightful” in his deliberations.
In Leahy, the officer had submitted that the Chief’s order had required additional personal and corporate tax information, to which he alleged the Chief was not entitled, in addition to the order to provide the number of hours worked. As a result, Const. Leahy argued that the Chief’s order was therefore tainted making the entire order unlawful.
The Commission did not accept that argument and found that based upon the evidence in that case:
…the Chief was justified in issuing the order. Bearing in mind the duties and responsibilities of the Chief and the Appellant as a police officer set out in the Act, the Chief had a duty, from an operational standpoint, to investigate the issue and the Appellant had a responsibility to respond to a direct Order from his superior. If the Appellant took issue with some of the information requested there were options available to him.
Instead Const. Leahy chose to dispute the lawfulness of the order in its entirety. (see - Leahy, supra, at pg. 17, paras.
60-61).
The Commission found that police officers have a duty to comply with the orders and directions of their superior officers. In the Leahy case, the order issued was for the public purpose of investigating whether Constable Leahy was complying with his terms of employment in committing full-time to his policing duties with the Service pursuant to section 49 (1) of the Act.
We agree that the same principle applies to the instant case. This was not a situation where the Chief was trying to investigate an officer for non-compliance with a rule,
directive or policy of the Service but was exercising a public statutory duty imposed upon the Chief in accordance with sections 41(1) and 49 of the Act.
The Hearing Officer in the present case concluded that there were other factors to be considered, notwithstanding the provisions of section 89 (8), that required Const. Terry to comply with the Chief’s orders. Referring to the Leahy decision, the Hearing Officer found that, in the factual circumstances of this case where this suspended officer, Const. Terry, who had been engaged in secondary employment for over 25 years, had failed to report his income from that secondary source for almost one year in contravention of section 8 d. of the Notice, the Chief was entitled to investigate and to issue the orders that he did. Const. Terry had other options available to him if he wanted to contest the use of the information. The Panel agrees with the Hearing Officer’s assessment of and findings made supported by this evidence and we can find no manifest error in the conclusions drawn.
The Hearing Officer found that reliance upon legal advice was no excuse for not complying. He found the orders of the Chief to be lawful. We concur with this finding.
On the third factor of Insubordination, the Appellant admitted that he had not reported the income earned from his secondary employment during the period of his suspension as required by the terms of the Notice and the Chief’s letter of December 10, 2012. Nor did he report the additional information of the complete number of hours worked per week at secondary employment also required by the Chief’s order of December 10, 2012. The Hearing Officer found the Appellant did disobey, neglect or omit to carry out the order. We find no error in this conclusion.
On the fourth factor of insubordination whether Const.
Terry had a lawful excuse for disobeying the order, the
Hearing Officer reviewed the letters of response and the testimony of the Appellant. Const. Terry had stated that he did not have to report his secondary income because he had received legal advice that it was exempt under the application of section 89(8) and that he had not worked full time hours since his suspension and had not increased his personal income due to the suspension. The Hearing Officer did not accept the Appellant’s explanations as credible.
As noted, he found the Appellant’s reliance on legal advice to be no excuse for disobeying the lawful order. In the factual circumstances, the Service was not required to wait for or rely upon Const. Terry to report under section 49 as that would make the management of the Service by the Chief impossible. The Hearing Officer found that Const. Terry did not have a lawful excuse. We find that conclusion to be reasonable.
Having reviewed the record of the disciplinary hearing and the decision of the Hearing Officer on the issue raised by the Appellant as outlined in paragraph 29, we find that the Hearing Officer’s interpretation and application of section
89 (8) to be correct. That section does not alleviate an officer from the duty to report his or her income when given an order by their superior officer, as in this case, the Chief of Police.
- Section 89 (7) and (8) make no provision for exempting an officer from complying with a Chief’s order to disclose information related to secondary employment. The interpretation and application of section 89 (8) is not relevant to the main issue which is the requirement to comply with the statutory scheme which permits a chief under sections 41 (1) and 49 of the Act to order an officer to disclose income and hours of work arising from secondary employment specifically where the chief has reason to believe that the officer, whether under
employment for another person.
As the Commission stated in Leahy, supra, there are other options available if the officer wishes to challenge the manner in which such demanded information is used. In this case, it was a possibility that the disclosure could justify that the Appellant was not engaged in full-time secondary employment. If there continued to be an issue, Const. Terry could then have objected to any deduction of the secondary employment income from his Service pay and filed a grievance under the terms of the collective agreement.
As we have already noted, we concur with the Hearing Officer’s conclusion that two separate orders were given by the Chief in his letter of December 10, 2012. The first order, to report any income earned from other employment during the period of suspension, was founded upon the terms of section 8 d. of the Notice arising under section
89(7), and the Chief’s duties and responsibilities as set out in sections 41 (1) and 49 (1) of the Act. The second order, to provide full disclosure of the number of hours worked per week, was founded upon the application of sections
41(1) and 49 of the Act.
We find the reasons of the Hearing Officer to be transparent, logical and intelligible and that the decision falls within the range of possible acceptable outcomes which are defensible in respect of the facts and the law.
We therefore answer the issue posed in paragraph 32 above in the negative. We also answer the questions set out in paragraph 33 (a) in the negative and paragraphs 33 (c) and (d) in the affirmative. In view of the answer to paragraph 33 (a), it is not necessary to answer 33 (b).
the reasons for decision, the grounds of appeal and the submissions of the Appellant and Respondents, we are respectfully unable to agree that the Hearing Officer committed any manifest error. In such circumstances, we find no reason to intervene.
Conclusion
- For the reasons set out above, we dismiss this appeal.
DATED AT TORONTO THIS 21st DAY OF JANUARY, 2015
Roy Conacher, Q.C. Zahra Dhanani
Vice-Chair, OCPC Member, OCPC