OCPC #15-02

ONTARIO CIVILIAN POLICE COMMISSION

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

Citation: Grills v. Ontario Provincial Police Service, 2015 ONCPC 2

BETWEEN:

PROVINCIAL CONSTABLE ASHLEY GRILLS APPELLANT (MOVING PARTY)

-and-

ONTARIO PROVINCIAL POLICE RESPONDENT (RESPONDING PARTY)

RULING ON MOTION

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

Hearing Date: May 22, 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. Gavin May, Counsel for the Moving Party, Provincial Constable Ashley Grills.

Ms. Jodie-Lynn Waddilove and Ms. Hera Evans, Counsel for the Responding Party, the OPP.

Introduction

1Provincial Constable Ashley Grills (“Prov. Const. Grills” or sometimes the “Appellant”) is a police officer employed by the Ontario Provincial Police ( the “Responding Party “ or “OPP”) and is an Appellant in an appeal to the Commission arising from a disciplinary decision by a Hearing Officer dated September 27, 2013. In the context of the appeal the Appellant brings a Motion (the “Motion”) for an Order:

a) that the Panel receive new or additional evidence regarding the duties performed, the overtime and specialty pay to which she claimed to be entitled and that could potentially be earned by her as a member of the Emergency Response Team (“ERT”) and also evidence regarding her temporary and subsequent permanent removal from the ERT all as detailed in paragraph 1 of the Notice of Motion (the “New or Additional Evidence”) dated February 5, 2014 (the “Notice of Motion”); and

b) that the Appellant obtain disclosure of any and all material relating to the Respondent’s decision to remove permanently the Appellant from the ERT as detailed in paragraph 2 (a) of the Notice of Motion (the “Disclosure Materials”).

Decision

2The Panel therefore:

1. GRANTS the relief requested in paragraph 1 of the Notice of Motion but limited to the long term impact of the loss of overtime and specialty pay commencing with the Appellant’s permanent removed from the ERT on September 4, 2013;

2. GRANTS the relief requested in paragraph 2 of the Notice of Motion;

3. ORDERS the Respondent to produce the materials set out in paragraph 2(a) of the Notice of Motion to the Appellant in a single batch within 30 days from the date of this decision; and

4. ORDERS that within 30 days of her receipt of the materials ordered produced in paragraph 2(3) immediately above, the Appellant serve on the Respondent (1 copy) and file with the Commission (3 copies), a brief containing all of the new or additional evidence described in paragraph 1 of the Notice of Motion. The brief of new or additional evidence must be organized chronologically, tabbed and include an index.

Background

3A Notice of Hearing was served on Prov. Const. Grills on July 13, 2012 alleging Discreditable Conduct in that between September 2011 and April 2012, inclusive, she acted improperly in relation to the investigation and/or prosecution of C, becoming involved despite having a personal interest in the matter.

4On August 14, 2013, a disciplinary hearing was held before OPP Acting Superintendent S. McDonald (the “Hearing Officer”). Prov. Const. Grills was represented by counsel present at the hearing. Prov. Const. Grills appeared by video and audio on consent.

5An Agreed Statement of Facts with five appendices was filed at the hearing.

6Prov. Const. Grills pled guilty and was found guilty of Discreditable Conduct pursuant to s. 2(1)(a)(xi) of the Code of Conduct set out in the Schedule to Ontario Regulation 268/10 made under the Police Services Act, R.S.O. 1990, c.P.15, as amended (the “Act”). Submissions were made as to penalty at the hearing.

7By decision dated September 27, 2013, the Hearing Officer imposed a penalty of forfeiture of 80 hours on Prov. Const. Grills to be worked on rest days or annual leave days.

8By Notice of Appeal dated October 21, 2013, Prov. Const. Grills is appealing:

a) the penalty of forfeiture of 80 hours imposed by the Hearing Officer; and

b) an “additional penalty” allegedly imposed by the OPP verbally on September 4, 2013 when it permanently removed the Appellant from her position on the ERT, and, thereby reduced her pay.

Submissions of Moving Party

9Mr. May submitted that the record before the Hearing Officer was incomplete and therefore the need for this Motion. The real issue on this appeal is whether the removal of Prov. Const. Grills from the ERT is disciplinary in nature. He referred to the Commission’s decisions in Mulligan v. OPP (March 28, 2014, OCPC), and Richardson v. OPP (May 23, 2012, OCPC).

10Mr. May said it is clear the Commission has jurisdiction over disciplinary decisions of police officers even if the matter is outside the legislative scheme under Part V of the Act.

11He continued that the OPP’s position is that there was no hearing regarding Prov. Const. Grills’ removal from the ERT, and no disciplinary decision was made on that issue. The Professional Standards Branch (“PSB”) did not make the decision regarding her removal from the ERT. The Field Support Bureau (“FSB”) did. Therefore the removal from the ERT was not discipline, and as such it must have been an operational administrative decision.

12The key question Mr. May stated in determining whether the removal of Prov. Const. Grills from the ERT is disciplinary or administrative in nature, is, “what is the essential character of the dispute?” It does not matter how the parties characterize it: see Regina Police Assn Inc. v. Regina (City) Board of Police Commissioners [2000] 1 S.C.R. 360 at paragraph 25.

13Mr. May referred to the case of Munday v. Calgary (City) Police Commission, 2003 ABQB 190 in which a police officer sought judicial review of a decision of the Calgary Police Chief to transfer him. At paragraph 23, the Court said:

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

14Mr. May referred to the arbitration award in the matter of Edmonton Police Service and Edmonton Police Association Concerning the Grievance of Constable Trevor Dzioba (“the Dzioba Arbitration Award”) issued by Arbitrator Andrew C.L. Sims, Q.C. on July 26, 2013. The officer was transferred out of a concern for his poor performance. The officer argued he was transferred as discipline. The Arbitrator disagreed and ruled the transfer was administrative in nature, not disciplinary.

15Mr. May referred to the case of Abbott v. Collins [2003] O.J. No. 1881 (Ont. Ct. of Appeal). In this case senior officers were transferred. The Court of Appeal held that the essential character of the dispute was disciplinary and, as a result, the court system had no jurisdiction. The matter had to be heard by the Ontario Civilian Commission on Police Services under Part V of the Act.

16Mr. May referred to the decision of Arbitrator Randi H. Abramsky in the case of The Ontario Provincial Police and The Ontario Provincial Police Association Concerning the Grievance of Terry Richardson, dated December 15, 2011. In that case Det. Const. Richardson grieved the imposition by the OPP of a forfeiture of 34 eight hour shifts and a permanent reassignment from his regular position. The Arbitrator ruled that the issue was disciplinary in nature and therefore, she had no jurisdiction to hear the grievance.

17The Commission held that it did have jurisdiction regarding the Richardson matter referred to immediately above: see Provincial Constable Terry Richardson and Ontario Provincial Police, (May 23, 2012, OCPC).

18Mr. May also referred to the case of Sergeant Daniel Mulligan and Ontario Provincial Police, (March 28, 2014, OCPC) where the essential character of the dispute – a transfer – was held to be disciplinary, not administrative. He pointed out the similarities in that case to the present one. Both transfers were made by the FSB, and both transfers resulted in a pay reduction. He submitted that the fact that FSB made the decision is not a bar to finding that the transfer was disciplinary in nature.

19Mr. May submitted that to determine the essential character of the dispute, one has to look at the factual context. Prov. Const. Grills was appointed to the OPP on April 23, 2007. She received accolades prior to being served with the Notice of Hearing. She was selected for the ERT training in December, 2011 and successfully undertook the training from April 11 to June 8, 2012. Upon completion of the training, she became a member of the ERT.

20In July of 2012, Prov. Const. Grills received the Notice of Hearing. Her first appearance was on September 12, 2012. On September 17, 2012 she was told verbally to “stand down” from the ERT which she was told meant that she could attend ERT training but not attend any ERT calls.

21Mr. May pointed out that in an affidavit of Jim Christie filed in support of the Motion, Mr. Christie stated that he spoke with OPP Commissioner Chris Lewis on September 24, 2012. Commissioner Lewis told Mr. Christie that Prov. Const. Grills’ specialty pay as a member of the ERT would be reinstated and would not be removed while she “stood down”.

22Prov. Const. Grills was temporarily assigned to the OPP detachment in Pickle Lake in October, 2012. She received an annual performance review. It was very positive. She was a coach officer and served as officer in charge during the absence of the Detachment Commander.

23Mr. May said that on August 14, 2013, Prov. Const. Grills pled guilty to the charges. On September 4, 2013 she was verbally advised that she was being permanently removed from the ERT. This was confirmed in a letter to her dated October 11, 2013 signed by Supt. Davies, Director, Operations, FSB (the “OPP’s October 11, 2013 Letter”). There was no indication of poor performance in her work with ERT.

24The second paragraph of the OPP’s October 11, 2013 Letter reads as follows:

It is the expectation of Field Support Bureau and the public to whom we serve that all ERT members demonstrate the highest levels of professionalism, leadership, integrity, discipline and sound judgment at all times. Anything less is unacceptable, as it can seriously erode the public trust and undermine the integrity of the OPP’s ERT program.

25Mr. May submitted that the OPP’s October 11, 2013 letter indicates a higher standard of conduct for ERT members and implies that Prov. Const. Grills violated the standards. There were no performance issues for the Appellant while a member of the ERT. There were no warnings like in Munday v. Calgary, supra, and in the Dzioba Arbitration Award, supra. He submitted that this case is much more like Richardson, supra, and Mulligan, supra. There is nothing in the record which establishes that the Appellant’s performance while a member of the ERT was an issue. Mr. May stated that this was a disciplinary decision, not an administrative or operational one. It had all the hallmarks of discipline.

26Mr. May pointed to paragraph 44 of Respondent’s factum which states that FSB was aware of the allegations under the Act against Prov. Const. Grills. Nevertheless the Respondent is concluding that because FSB made the decision to remove her from the ERT, it was an operational decision in nature.

27Mr. May submitted that one must question what facts FSB had in making its decision to remove the Appellant from the ERT. The two affidavits included in the Motion materials submitted by the OPP (from Insp. B. Charles Young and Sgt. Major Bradley McCallum) are from PSB members who were not part of the decision-making process. He submitted that their affidavit evidence is therefore of little value. The Chief Supt. of FSB, not anyone from PSB, made the decision that Prov. Const. Grills was to be removed from the ERT. Mr. May asked, what facts did the Chief Supt. of FSB rely on? None are known. He submitted that one can draw an adverse inference from a lack of evidence that the transfer was meant to punish Prov. Const. Grills, and was disciplinary in nature.

28With regard to receiving new or additional evidence on appeal, Mr. May said the parties agree that the Commission uses the four-part test laid out in R. v. Palmer, (1979) 5O C.C.C. (2nd) 193 (SCC).

29Regarding a guaranty of overtime pay, Mr. May agreed there is none. However, he submitted ERT members by definition work more hours than other front-line officers. At the hearing, Prov. Const. Grills testified that overtime pay for a patrol constable is much less than that which is available to an ERT member. The affidavit of Martin Bain, Vice-President of the OPPA, sets out rough numbers in the thousands of dollars to be gained by being a member of ERT over other front line positions. Mr. May submitted that Prov. Const. Grills should have had the opportunity to call evidence on this issue.

30Mr. May argued that the Hearing Officer relied on his own experience and issued his decision without warning or allowing the Appellant the opportunity to challenge his position. He cited Sterling and Hamilton-Wentworth Regional Police Service, (August 10, 1999, OCCPS), wherein the Commission granted a motion for new or additional evidence because the Appellant could not call evidence to refute findings made by the hearing officer because those findings were not made known during the course of the hearing, only in the decision.

31Regarding the Appellant’s loss of specialty pay, Mr. May submitted that she was removed from the ERT after the Hearing Officer heard her submissions. Prov. Const. Grills was under the impression that OPP Commissioner Lewis had said that her specialty pay as a member of ERT would be reinstated but it was not. This is truly new or additional evidence. The Hearing Officer should have known this and taken it into consideration.

32Mr. May pointed to the Hearing Officer’s decision on page 11, 2nd last paragraph. The Hearing Officer knew there was a financial impact to the Appellant being removed from the ERT, but only referred to a forfeiture of hours.

33Mr. May referred to paragraph 58 of Respondent’s factum where the Respondent raises an alternative argument that the Hearing Officer effectively dealt with Prov. Const. Grills’ removal from the ERT if it was disguised discipline. He argued that this is inconsistent with paragraph 60 of Respondent’s factum which states:

The Respondent submits that the management decision to remove the Appellant from the ERT was not specifically considered by the Hearing Officer. However, the Respondent also submits that the Hearing Officer did not err by failing to consider the management decision to remove the Appellant from the ERT as the decision was made after submissions were made and the hearing had concluded, and before a decision on penalty was issued.

34Mr. May submitted that if the new or additional evidence is received, the Appellant would be correcting or clarifying evidence given at the hearing. He referred to Purbrick and Ontario Provincial Police, (May 25, 2011, OCPC), at paragraph 20 where new or additional evidence was allowed to correct evidence given at the hearing. The affidavits will clarify some of the evidence on the present record. When Prov. Const. Grills was told she was “stood down”, it meant she could go to the ERT training but could not be called out. The Appellant did not know at the time of the hearing that she was not going to receive specialty pay and was to be removed permanently from the ERT.

35Mr. May stated that he requires disclosure from the Respondent regarding its decision to remove Prov. Const. Grills from the ERT which he intends to include in the new and additional evidence in the appeal.

36Mr. May continued that if the Panel finds that the ERT removal and loss of specialty pay were disciplinary in nature, it will have decided most of the issues raised on the appeal and this Motion. If they were disciplinary in nature, it follows that the actions of the Respondent were illegal and constituted misconduct on behalf of the decision-maker.

37He referred to Richardson, supra, at paragraph 37. If an illegal decision is made contrary to law, there is possible misconduct. Was the decision to permanently remove the Appellant from the ERT open to the FSB to make? Mr. May submitted the answer is “no” in that the FSB was not in the same position as the Hearing Officer and has no power to make such decision.

38Mr. May submitted that arising from Regina Police Association, supra, the Commission has the jurisdiction to hear these types of appeals. A corollary is a power to grant a remedy, not just overturn a decision. Prov. Const. Grills was removed from ERT and lost pay. The Hearing Officer’s decision should be overturned and she should be made whole.

39Mr. May argued that in the alternative, if the Panel is not satisfied the decision was disciplinary in nature, then it should allow the Appellant the right to bring a jurisdictional motion again once disclosure is made. If there is evidence to bring the case back, he would do so.

40Mr. May submitted that the remedies being sought are set out in paragraphs 39 and 40 of his factum. He advised that paragraph 41 of his factum should be struck as should the request for disclosure set out at paragraph 2(b) of the Notice of Motion.

Submissions of Responding Party

41Both Ms. Waddilove and Ms. Evans made submissions on behalf of the Respondent.

42Ms. Evans conceded that the Commission does have jurisdiction over disguised discipline issues. She also agreed that the performance evaluation of Prov. Const. Grills was done by officers at Pickle Lake only. The ERT did not have any input.

43She submitted that one must look at the entire factual context, including the misconduct of Prov. Const. Grills, the Agreed Statement of Facts submitted at the hearing, and attachments (a) to (e) to the affidavit of Sgt. Major Bradley McCallum. This evidence was agreed to by Prov. Const. Grills and entered at the hearing on consent.

44Ms. Evans referred the Panel to the McCallum affidavit which sets out the timeline.

45In paragraph 6 of Sgt. Major McCallum’s affidavit, he said he was aware of “disguised discipline” cases, as were senior officers of North West Region.

46Ms. Evans stated that the Motion pertains to challenging a management and operational matter which the Commission does not have the right to hear. The Commission cannot order a transfer. The Appellant is seeking the production of information that is not relevant. The appeal is from the decision of the Hearing Officer and does not extend to the information being sought.

47Ms. Evans continued that in the alternative, if this is a case of disguised discipline, the Commission can still deny the Motion. The Hearing Officer did give consideration to Prov. Const. Grills’ removal from ERT and dealt with it.

48She stated that evidence could have been adduced at the hearing. The evidence would not have affected the result and is not necessary for a full appreciation of the issues. This Motion is a fishing expedition, she said.

49Ms. Evans advised that Part II of the Respondent’s factum is its response to the facts set out by the Appellant in her factum. Her misconduct predated the Appellant’s placement on the ERT. The Appellant made submissions at the hearing regarding her pay and loss of overtime. The Hearing Officer had sufficient evidence and argument to dispose of these issues.

50Ms. Evans pointed out that Schedule D to Sgt. Major McCallum’s affidavit is the transcript from the hearing held on August 14, 2013. At pages 70 and 71, evidence was adduced about the financial implications to Prov. Const. Grills of not being on the ERT by Respondent’s counsel. Further, Appellant’s counsel at the hearing provided financial information to the Hearing Officer: see pages 48, 49, 51, 52, 65 and 66.

51Ms. Evans pointed out that in paragraph 8 of the Moving Party’s factum, it states that the Appellant discovered on October 17, 2013 for the first time that her specialty pay had in fact been removed September 17, 2012, despite previously being told it would not. The Appellant could have made submissions on this issue to the Hearing Officer at the hearing on August 14, 2013. She decided not to.

52Ms. Waddilove submitted that the Panel should find that the Commission does not have jurisdiction to review or adjudicate an administrative or operational decision of the Respondent. Further, she submitted that if we find that this is a case of disguised discipline, that the effect on the Appellant of her permanent removal from the ERT was dealt with by the Hearing Officer.

53Ms. Waddilove submitted that only after deciding the issues referred to in the paragraph immediately above should the Panel consider whether to receive the new or additional evidence on the appeal as the Appellant requests. Ms. Waddilove argued that the requested new or additional evidence should not be received. In addition, she argued that the Appellant should not receive the requested disclosure which amounts to information about an issue that was not before the Hearing Officer and that relates to an administrative or operational decision by the Respondent.

54Ms. Waddilove submitted that the suspension or removal from the ERT of the Appellant did not amount to disguised discipline. While FSB was aware of the misconduct allegations against the Appellant and they were considered, the decision made was a management or operational decision.

55Ms. Waddilove submitted there is no consideration of whether the decision to remove the Appellant permanently from the ERT was a management or operational decision in the Hearing Officer’s decision because it did not have to be disclosed. It was not relevant.

56She referred to Toronto East General, supra, at paragraphs 14 and 15:

Action taken by an employer which is not motivated by a desire to punish an employee or to correct misconduct, but which represents a reasonable response to operational considerations, is generally not viewed as being disciplinary, even though it may result in a loss of income to the employee.

57Based on Regina Police Association, supra, the basic question is whether the Legislature intended this dispute to be governed by the Collective Agreement or the Act.

58Ms. Waddilove said in Richardson, supra, the Commission found that the OPP’s requiring restitution of 34 day’s salary and transferring the officer to uniform duties, were disciplinary in nature and arose from the disciplinary scheme.

59Unlike in Richardson, supra, she argued, the Appellant’s position or status on the ERT was unrelated to the issues before the Hearing Officer. While FSB was aware of and considered the misconduct allegations against the Appellant, there is no evidence that the decision to remove the Appellant was based on or arose from the same facts on which the disciplinary hearing was based.

60Ms. Waddilove submitted that s.85 (9) of the Act enables a police service to take into account proven allegations of misconduct when making operational or management decisions.

61It was therefore reasonable, she argued, for FSB to take into account misconduct allegations against the Appellant in making the decision as to her membership in the ERT as she admitted the alleged misconduct and a penalty was imposed.

62Ms. Waddilove argued that the PSB, the branch of the OPP which investigates and prosecutes allegations of misconduct, was not involved in the decision made by FSB to remove Prov. Const. Grills from the ERT.

63She submitted that the subject matter of the dispute does not fall under the disciplinary scheme, and it is not contemplated by the current Collective Agreement.

64The Appellant does have a forum to address her concerns related to management and operational decisions, namely a court: see Regina Police Association, supra, paragraph 26.

65Although the management decision to remove the Appellant from the ERT was not specifically considered by the Hearing Officer, there was no error as the decision was made after submissions were made and the hearing had concluded, and before a decision on penalty was issued.

66Ms. Evans stated that the test for fresh evidence is as set out in Palmer, supra. There was some evidence before the Hearing Officer and some discussion regarding the Appellant’s position with the ERT: see pages 48 to 49, 51 to 52, and 65 to 66 of the transcript.

67Regarding the due diligence test, Ms. Evans said the Appellant was represented by counsel at the Hearing. They chose not to present evidence which does not mean they could not have done so. The appeal should not give the Appellant a second chance. The Hearing Officer made his decision based on the evidence before him.

68Ms. Evans submitted that the Appellant’s affidavit contains different evidence from that which the Appellant gave at the hearing. It clarifies or corrects her position regarding the ERT. The Appellant could have presented this evidence at the hearing. The decision in Purbrick, supra, is distinguishable from this case in that incorrect evidence was heard, and new or additional evidence was sought to be addressed to correct it. The Appellant has not spelled out what was the incorrect evidence.

69The second branch of the Palmer test is that the evidence must be relevant and bear on a decisive issue. The new or additional evidence that Appellant is seeking to adduce is financial and is not decisive. The Hearing Officer weighed a number of factors including the financial impact on the Appellant. Events that happened after the hearing are not decisive.

70Ms. Evans said that the third branch of the Palmer test is that the evidence must be credible. The Respondent does not take issue with this.

71The fourth branch of the Palmer test is that, when taken with other evidence adduced at trial, the fresh evidence could reasonably be expected to have affected the result. Ms. Evans submitted that the Hearing Officer was not persuaded by the Appellant’s submissions. The Hearing Officer wrote at page 11 of his decision:

I can appreciate that the loss of a complete income would present financial difficulties however the proposed penalty is a forfeiture of hours. This penalty, unlike a demotion, does not impact on the financial earnings of an officer.

72Ms. Evans said the new or additional evidence the Appellant seeks to introduce would not affect the result. The Hearing Officer heard the Appellant was out of the ERT but did not find this created any impact. The new or additional evidence that the Appellant was removed permanently from the ERT is not material and is not appropriate to be introduced on appeal.

73Ms. Waddilove stated that while the Commission may order disclosure pursuant to s. 7.1 of its Rules, it is not appropriate in this case because the removal decision was one of a management or operational nature.

74Ms. Waddilove submitted, in the alternative, if the Commission finds that disclosure was necessary, the test used should be that set out in West Park Hospital v. Ontario Nurses’ Assn [1993] O.L.A.A. No. 12 at para. 20, an Ontario Labour Arbitration decision:

However, where disclosure is contested, the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that disclosure will not cause undue prejudice. In this regard, the criteria set out in the Desmarais and Morrisette case are applicable in terms of weighing whether or not privileged information should be protected.

This test was applied by the Commission in its recent decision in Durham Regional Police Association (January 22, 2014, OCPC).

75Ms. Waddilove stated that the disclosure sought by the Appellant regarding the decision to remove the Appellant from the ERT is arguably not relevant and should not be disclosed as it fails to meet the first part of the test set out in West Park Hospital, supra. The disclosure requested also fails to meet the second and third requirements of the test in that case.

76She submitted that the Appellant is seeking non-particularized disclosure which is in the nature of a “fishing expedition”.

Appellant’s Reply Submissions

77Mr. May stated that there is only one OPP regardless of which Branch made the decision to remove the Appellant from the ERT.

78Mr. May submitted that Respondent’s argument that the Appellant made a conscious decision not to produce evidence was incorrect. As indicated in the Appellant’s affidavit, she was not aware of her permanent removal from the ERT at the time of the hearing. This did not occur until after the OPP’s head office made the decision. During the hearing the Appellant testified that she was not being used as an active ERT member, but also that she was still a member of the ERT.

Reasons

79The issues on the Motion are:

a) May new or additional evidence be received from the Appellant on her disciplinary appeal regarding the loss of specialty pay and overtime pay that she could have received as a member of the ERT had she not been removed permanently from the ERT subsequent to the hearing but before the final decision was issued by the Hearing Officer?

b) Did the verbal notification of the Appellant’s permanent removal from ERT given to her on September 4, 2013 and the subsequent formal written confirmation of that decision by letter dated October 11, 2013 served on her November 12, 2013 constitute disguised discipline or, alternatively, a management/operational decision?

c) May new or additional evidence be received on this appeal from the Appellant regarding the financial impact resulting from her permanent removal as a member of the ERT? and

d) If the answer to either (b) or (c) above is positive, what disclosure should be made by the Respondent to the Appellant?

80Many of the submissions made by counsel pertained to arguments to be made on the appeal. The Panel has disregarded those to focus upon the submissions bearing on the specific issues raised by the Motion.

New or Additional Evidence

81Subsection 87(5) of the Act provides:

“A hearing held under this section shall be an appeal on the record, but the Commission may receive new or additional evidence as it considers just.”

82The leading case on whether or not to admit new or additional evidence on appeal is R v. Palmer, supra. In this case, the Supreme Court of Canada set out a four part test which must be met before new or additional evidence is to be admitted. The four part test is as follows:

a) The evidence should generally not be admitted if by due diligence, it could have been adduced at trial, although this principle will not be applied with the same strictness in criminal trials as it would be in a civil trial;

b) The evidence must be relevant in that it bears upon a decisive or potentially decisive issue;

c) The evidence must be credible; and

d) The evidence must be such that if believed, it could, when taken with the other evidence adduced at trial, reasonably be expected to have affected the result.

83The Commission has adopted this test when interpreting subsection87(5): see, Mauro and Thunder Bay Police Service, (January 24, 2013, OCPC); Acton and Durham Regional Police Service (April 8, 2013, OCPC) and Mulholland and Peel Regional Police Service (June 3, 2014, OCPC).

84The new or additional evidence sought to be adduced by the Appellant has to do with a loss of overtime and specialty pay both of which the Appellant alleges she would have received had she remained a member of the ERT.

85The disciplinary hearing took place on August 14, 2013. An Agreed Statement of Fact was produced and marked as an exhibit at the Hearing. It contained no reference to pay. It dealt solely with the alleged misconduct of the Appellant as set out in the Notice of Hearing.

86At the bottom of page 48 of the transcript from the hearing, Mr. Carroll, then representing Prov. Const. Grills, discussed hardship to the officer referring to her financial situation and stating at the top of page 49 of the transcript:

She was a member of the ERT team and, as such, in addition to the base salary, was in receipt of substantial overtime, bumping her salary up by about $30,000, $40,000. Once these charges were laid, she was removed from the ERT team and has been a patrol constable since. So that, although there is some overtime as a patrol constable, it doesn’t approach that which was available to her as a member of the ERT team.

87Mr. Carroll again raised the loss of overtime pay to Prov. Const. Grills at the bottom of page 51 of the transcript.

88These comments were raised by Mr. Carroll as a mitigating factor to be taken into account by the Hearing Officer in setting the penalty.

89In her reply at the hearing, Ms. Waddilove said:

Now, with respect to the financial implications - …

• I can appreciate it will affect a family income, however, I don’t think that is an appropriate consideration in terms of looking at the misconduct and the issues before you. Any income derived through overtime or extra paid duty is not a guaranteed income. The officer’s base salary is not impacted.

90On the date of the hearing, August 14, 2013, the Appellant had been “stood down” from the ERT but was attending ERT training but not any call outs.

91As stated in her Notice of Motion, the Appellant had been told by the OPP Association that her ERT specialty pay was to have been reinstated. She did not realize it had not been reinstated until October 17, 2013 although through her own due diligence she could have discovered this earlier. In the meantime, on September 27, 2013 the Hearing Officer rendered his decision. Also, the Appellant was advised verbally on September 4, 2013 that she was being permanently removed from the ERT and that was confirmed by a letter dated October 11, 2013 but not served on the Appellant until November 12, 2013.

92Although the Hearing Officer did refer to the issue of the overtime earnings in his decision in at least two places, it was not known at the hearing on August 14, 2013 that the Appellant would be permanently removed from the ERT and what this would mean in financial terms to her. Had a full argument been made, it could or might have influenced the Hearing Officer in setting his sanction against the Appellant.

93It was not known at the date of the hearing that the Appellant would be removed permanently from the ERT. The Panel therefore finds that the first branch of the Palmer test has been met.

94We find that evidence regarding the permanent loss of specialty and overtime pay could, if considered disguised discipline, influence the penalty of 80 hours imposed by the Hearing Officer. Therefore the second branch of the Palmer test is met.

95We anticipate that the evidence to be adduced as set out in paragraph 1 of the Appellant’s Notice of Motion will be credible. We find that the third branch of the Palmer test has been met.

96As indicated above, the evidence if believed when taken with other evidence adduced in this matter, could reasonably be expected to affect the penalty of 80 hours imposed by the Hearing Officer. Therefore, we find that the fourth branch of the Palmer test is met.

97The motion is therefore granted to permit the Appellant to file new or additional evidence as requested in paragraph 1 of her Notice of Motion, but limited to the long term impact of the loss of overtime and specialty pay commencing with the Appellant’s permanent removal from the ERT on September 4, 2013.

Disclosure

98The Motion seeks disclosure of material relating to the Respondent’s decision on September 4, 2013 to permanently remove the Appellant from the ERT.

99The Appellant’s position is that such removal constituted discipline, as it resulted in a permanent loss of specialty pay and a significant loss of overtime pay. The Appellant requires disclosure of materials regarding the OPP’s decision to remove her from the ERT.

100The Respondent’s position is that a transfer of an officer such as happened with the Appellant is a decision of a management or operational nature, and one that is solely within the purview of the OPP to make. The Respondent’s position is that there was no connection between the transfer and the discipline proceedings against the Appellant.

101The Respondent states that the removal decision was made by the FSB, not by the PSB, although the FSB knew about the discipline process regarding the Appellant.

102The chronological order of events regarding the Appellant’s permanent removal from the ERT was as follows:

a) April 11 to June 8, 2012 – the Appellant attended and successfully completed the 9 week ERT basic training course;

b) July 13, 2012 – the Appellant was served with a Notice of Hearing;

c) September 12, 2012 – the Appellant had her first appearance regarding the Notice of Hearing;

d) September 17, 2012 – the Appellant was told verbally she was being “stood down" from ERT;

e) A few days later, the Appellant was informed what being “stood down” meant;

f) August 14, 2013 – the hearing took place;

g) September 4, 2013 – the Appellant received a telephone call advising her she was being officially removed from the ERT;

h) September 27, 2013 – the Hearing Officer released his decision;

i) November 12, 2013, the Appellant was served with a letter dated October 11, 2013 from the Director of FSB confirming the verbal decision of September 4, 2013.

103There is an issue, to be dealt with on the appeal, as to whether the removal from the ERT constituted discipline to the Appellant as part of the discipline process, or was purely a non-discipline management or operational decision. From the factual circumstances outlined in the motion materials filed, the issue of whether the actions taken by the Respondent in dealing with the position of the Appellant on the ERT constitutes disguised discipline is a live issue and a matter that requires additional evidence in order to provide a full and fair process to both parties.

104In terms of considering an order for production, the test on production employed by the Commission is set out in West Park Hospital, supra. The test has four parts, each of which will be dealt with below.

105First, the information being requested must be “arguably relevant”. In this case, the Appellant is seeking information concerning her temporary and subsequent permanent removal from the ERT which as indicated above, could be relevant to the main issue on her appeal. Therefore, the information sought is “arguably relevant”.

106Second, the requested information must be particularized. In paragraph 2(a) of the Moving Party’s Notice of Motion, the preamble limits the request to Appellant’s permanent removal from the ERT in then seeking specific materials between and involving specific named individuals, and materials reviewed by specific individuals, with a final request for general information limited to ERT members. This request for information is sufficiently particularized.

107Third, the Panel must be satisfied that the information is not being requested as a fishing expedition. Given that the Appellant’s permanent removal from the ERT is a serious issue to be dealt with on the appeal, the information being requested is not a fishing expedition.

108Fourth, there must be a clear connection between the information being requested and the issue in dispute. The information being requested in the Motion is connected to the issue in the appeal namely whether or not the Appellant’s removal from the ERT was discipline or purely a management or operational decision by the Respondent and if the former, the consideration of any additional financial impact on the Appellant in determining the penalty being imposed.

109The four parts of the test set out in West Park Hospital, supra, having been met, the Panel grants the Motion for disclosure as set out in paragraph 2(a) of the Moving Party’s Notice of Motion.

110The Panel therefore:

1. GRANTS the relief requested in paragraph 1 of the Notice of Motion but limited to the long term impact of the loss of overtime and specialty pay commencing with the Appellant’s permanent removed from the ERT on September 4, 2013;

2. GRANTS the relief requested in paragraph 2 of the Notice of Motion;

3. ORDERS the Respondent to produce the materials set out in paragraph 2(a) of the Notice of Motion to the Appellant in a single batch within 30 days from the date of this decision; and

4. ORDERS that within 30 days of her receipt of the materials ordered produced in paragraph 2(3) immediately above, the Appellant serve on the Respondent (1 copy) and file with the Commission (3 copies), a brief containing all of the new or additional evidence described in paragraph 1 of the Notice of Motion. The brief of new or additional evidence must be organized chronologically, tabbed and include an index.