ONTARIO CIVILIAN POLICE COMMISSION
Safety, Licensing Appeals and Standards Tribunals Ontario
COMMISSION CIVILE DE L’ONTARIO SUR LA POLICE
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under section 87(1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended
Between:
Cst. Ian Cameron Appellant
and
Durham Regional Police Service Respondent
MOTION DECISION
Panel: D. Stephen Jovanovic, Associate Chair
Appearances: Josh Phillips and Bianca Bell, counsel for the appellant
Ian Johnstone and Alex Sinclair, counsel for the respondent
Place and date of hearing:
Toronto, Ontario November 15, 2017
Introduction
1The appellant filed a Notice of Appeal with the Commission, dated May 23, 2017, ostensibly pursuant to section 87(1) of the Police Services Act (the PSA) which reads as follows:
A police officer or complainant, if any, may, within 30 days of receiving notice of the decision made after a hearing held under subsection 66(3), 68(5) or 76(9) by the Chief of Police or under subsection 69(8) or 77(7) by the Board, appeal the decision to the Commission by serving on the Commission a written notice stating the grounds on which the appeal is based.
2However, there has been no hearing under any of these subsections and accordingly there has been no decision that is being appealed. The respondent has brought a motion to dismiss the appeal on the principal ground that it is “untimely on any reasonable interpretation of the date from which the timelines in section 87(1) and [the Commission’s] rule 33.01 run”.
Disposition
3For the reasons that follow, the motion is dismissed.
Background
4The following facts are taken from the affidavits delivered by the parties and are essentially undisputed.
5The events giving rise to the appeal began in September 2009 when the appellant was involved in a physical altercation with another officer while they were both on duty.
6The appellant was subsequently convicted of assault under the Criminal Code and then pleaded guilty to one count of Discreditable Conduct under the PSA. Deputy Chief Kelly was appointed as the Hearing Officer to deal with the PSA charge. He released his decision on the penalty to be imposed on May 1, 2014.
7The appellant was demoted in rank from First Class Cst. to Second Class Cst. for two years. At the end of this two year period, the appellant was to be reinstated to the rank of First Class Cst., “provided he has complied with the attached conditions and successfully completed all training with satisfactory (no more than two categories with ‘needs improvement” performance reviews”.
8The Hearing Officer concluded his decision with the following comment:
In the event of an unsatisfied, or unsuccessful, completion of these assignments and/or unsatisfactory performance reviews, Constable Cameron may be subject to further charges under the Police Services Act and/or other discipline procedures up to and including dismissal.
9It appears that the appellant was complying with the conditions imposed by the Hearing Officer until September 5, 2015 when it was alleged that he reported to work with a breath sample reading above the 80 milligram limit. As a result, the appellant was given a Notice of Suspension under section 89 of the PSA dated September 5, 2015. This suspension interrupted the running of the two year period for his demotion. However, the parties do not agree on the legal effect of the suspension as it relates to the penalty imposed by the Hearing Officer.
10The Durham Regional Police Association (the Association) filed a grievance on August 5, 2016 claiming a violation of article 17 of the Uniform Collective Bargaining Agreement it had with the Durham Regional Police Services Board (the Board). The remedies sought were the immediate return of the appellant to the rank of First Class Cst. retroactively to May 1, 2016 together with back pay.
11The grievance proceeded to an arbitration before William Marcotte (the Arbitrator) on March 17, 2017. The Board raised a preliminary objection to the jurisdiction of the Arbitrator. The Board argued, successfully, that the grievance was not arbitrable as it did not arise from a violation of the collective agreement but, rather, the dispute was disciplinary in nature and therefore had to be dealt with under Part V of the PSA.
12The Arbitrator, in a decision dated April 7, 2017 accepted the Board’s position and in dismissing the grievance wrote the following:
In the instant case, the dispute arises from the Board’s decision not to reclassify or reassign the grievor to the 1st Cass Constable Rank effective May 1, 2016. The grievor was “Degraded” (p. 33) to 2nd Class Constable from 1st Class Constable for two years effective May 1, 2014 in a decision made by Hearing Officer Kelly. The grievor had pleaded guilty to “one count of Discreditable Conduct” laid under the Police Services Act (p.2). The complaint against the grievor was heard by Hearing Officer Kelly under section 76 of the PSA. Section 76 is under Part V of the Act, namely, “Complaints and Disciplinary Proceedings. It is clear from the above factual context that the grievor’s demotion, in its essential character, is disciplinary. The factual context also indicates that the grievor’s demotion continued beyond May 1, 2016. The continuation of the demotion is directly related to the originating event, i.e., discipline. The continuation of the demotion, therefore, in its essential character, is disciplinary under Part V of the PSA. In that Part V is excluded from collective bargaining, I must find that I do not have jurisdiction to deal with the grievance. However, the Association submitted that because the Hearing Officer is functus officio, there is no remedy available to the grievor. While there is no remedy available to the grievor under the provisions of the collective agreement, Part V of the Act provides for processes for that purpose Re Richardson, supra.
13Neither party takes issue with the Arbitrator’s decision. The principal question to be decided on this motion is whether the 30-day time limit for bringing an appeal to the Commission under section 87(1) applies and if so, from what date does it run.
ISSUES
14The respondent submitted in its motion that the sole issue before the Commission is whether the appeal should be dismissed as untimely. In its factum and in oral argument this sole issue was expanded somewhat. The respondent made the following submissions:
The Commission has no jurisdiction to extend the timeline for the filing of an appeal under section 87(1) of the PSA or its rules.
The 30-day appeal period began to run on May 30, 2016 or in the alternative March 17, 2017 or in the further alternative April 7, 2017.
The Commission has no jurisdiction under section 78(1) of the PSA as the “complaints process” has been completed.
If the Commission determines that it has jurisdiction to direct the chief of police to deal with the complaint, it ought to decline to do so given the significant delay occasioned by the appellant’s inactivity.
15The appellant submitted that the chief of police was required to commence a disciplinary proceeding under Part V of the PSA following release of the Arbitrator’s decision and that the chief’s failure to do so gives rise to the right of appeal and there is no statutory time limit for the appeal.
ANALYSIS
16I accept that the Commission does not have the authority to extend the 30-day time limit for a Notice of Appeal to be filed under section 87(1) of the PSA. For example see the decision in Needham and the Toronto Police Service, 2010, 101279 (ON CPC). However on a plain reading of this section, it has no application to this matter.
17In Richardson v. Ontario Provincial Police, 2012 CanLII 102114 (ON CPC) the Commission dismissed an appeal under section 87(1) as being premature when no hearing had taken place and accordingly there was no decision. The OPP had decided to permanently reassign Richardson and require him to forfeit 34 days wages. He filed a grievance which was dismissed by an arbitrator as she held that the dispute was disciplinary in nature and had to be dealt with under Part V of the PSA.
18The Commission held that as no hearing had been held the precondition under section 87(1) was not satisfied and accordingly that section had no application. For the same reason the 30-day time period in section 87(1) does not apply to deprive the appellant of his right to challenge the decision not to reassign him to his previous rank.
19Notwithstanding the dismissal of the appeal in Richardson, the Commission invoked section 78(1) of the PSA and directed the OPP Commissioner to hold a hearing pursuant to section 76(9). A similar result was reached more recently in Nicholas Macdonell and Ontario Provincial Police, 2017 CanLII 37620 (ON CPC).
20In Richardson the Commission relied on the Supreme Court of Canada’s analysis in Regina Police Association Inc. and City of Regina Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360 to take a broad view of its jurisdiction. The Commission wrote:
The Supreme Court concluded that “…the legislature has shown its intention to have all matters relating to discipline governed by the Police Act and Regulations. It has attempted to provide a comprehensive scheme for both the investigation and adjudication of such disputes”.
[T]his Commission has jurisdiction where discipline is imposed upon a police officer and “…the fact that the chief of police may not have followed the procedural requirement that he provide written reasons for his decision is not sufficient to deprive the Commission of jurisdiction...”
Section 78 of the Act provides the Commission with broad oversight duties and powers in respect of internal complaints made by chiefs of police and police service boards. We find that the purpose of this section is to enable the Commission to ensure that disciplinary matters initiated by internal complaints are resolved fairly and in accordance with the processes mandated under Part V of the Act [Citations omitted].
21The respondent next submitted that the Commission did not have jurisdiction under section 78(1) to order a hearing as the complaints process concluded with the decision of the Hearing Officer. In most situations that would be correct. However, in my view, given the conditional nature of the Hearing Officer’s decision, the complaints process has not been completed. The appellant must have some way to challenge a decision made by the respondent as to whether he in fact complied with all the conditions imposed.
22The respondent’s final submission was that this appeal should be dismissed due to the delay or inactivity on the part of the appellant. The Hearing Officer’s decision was released in May 2014. The respondent’s decision not to reinstate the appellant to his former rank was made on May 30, 2016. The grievance was filed in August 2016 and the decision of the Arbitrator released in April 2017.
23Even though the appellant chose the wrong forum to challenge the decision not to reinstate him to his former rank, I do not view the above chronology to represent such an inordinate delay that would justify dismissing the appeal, assuming there was jurisdiction to do so.
24This decision only deals with the respondent’s motion to dismiss the appeal. The order sought by the appellant was the dismissal of the motion. While an order dismissing the motion may effectively dispose of all of the issues in the appeal, the parties should have the opportunity to make any further submissions arising from this decision. Counsel will be contacted by the Registrar to schedule a teleconference to deal with those submissions unless they advise it is not necessary to do so.
ORDER
25The respondent’s motion to dismiss the appeal is dismissed.
Released: December 22, 2017
____________________________D. Stephen Jovanovic