Nicholas Macdonell v. Ontario Provincial Police, 2017 CanLII 37620

ONTARIO CIVILIAN POLICE COMMISSION

DATE: June 6, 2017

CASE NAME: NICHOLAS MACDONELL AND ONTARIO PROVINCIAL POLICE

FILE: OCPC-15-ADJ-016

In the Matter of an Appeal Under Section 87 (1) of the Police Services Act, R.S.O. 1990, c. P.15, as amended

SERGEANT NICHOLAS MACDONELL APPELLANT

-and-

ONTARIO PROVINCIAL POLICE RESPONDENT

DECISION

Panel: D. Stephen Jovanovic, Associate Chair Roy B. Conacher, Q.C., Vice-Chair Winston Tinglin, Member

Hearing Date: February 8, 2017

Hearing Location: Ontario Civilian Police Commission 250 Dundas Street West, Suite 605 Toronto, ON M7A 2T3

Representatives: Michele Hamilton Mayers, Counsel for the appellant Claudia Brabazon, Counsel for the respondent

Introduction

1This matter comes to the Commission 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 in this matter and no resultant decision. Instead, the appellant submits that the Commission has a "broad and comprehensive jurisdiction over police discipline" including the power to review what he terms was "disguised discipline" meted out by a superior officer, in this case Acting Chief Superintendent Murphy. The jurisdiction of the Commission in these circumstances lies at the heart of this appeal.

Background

3As there has been no hearing and therefore no Record of the proceedings, the following facts are taken from the factums of the parties and are undisputed unless otherwise indicated.

4The appellant worked as a detective Sergeant with the respondent since 2008. In April 2008 he began working as a Team Leader of the Provincial Weapons Enforcement Unit of the Organized Crime Enforcement Bureau (the OCEB). In October 2013 he submitted a routine request to have one week of what he believed was accrued vacation time paid out to him. This request triggered an investigation into the amount of time worked by the appellant and his recording of that time.

5On November 18, 2013 the appellant was served with a Notice of Internal Complaint which alleged the following:

It is alleged that [you] submitted unclaimed overtime without pre-approval and then subsequently utilized the unclaimed hours as time off

6The appellant responded to the Notice taking the position, disputed by the respondent, that he recorded his time as instructed by his then supervisor and in the same manner that he advised his subordinate officers to do. At issue were 200 hours of what the respondent believed to have been excessive vacation time claimed by the appellant for 2013.

7In June 2014, the appellant was issued "Negative Documentation 233-10" ("233-10" or "233-10 form"). The appellant claimed that one of his Association representatives had reached an understanding with the respondent that the disputed hours could be carried forward pending a resolution as to his entitlement. This understanding is denied by the respondent.

8According to the respondent, it considered taking disciplinary action, such as charging the appellant with discreditable conduct, but instead chose to issue the 233-10 form and transfer the appellant as one of its performance management options.

9The 233-10 form stated that the appellant had "worked substantial, unapproved overtime coded as unclaimed" and that he subsequently submitted this time for "administrative duties and did not notify his immediate supervisor of these claims nor seek approval to work the additional time".

10The appellant was advised on June 3, 2014 that he was being transferred immediately to the Ottawa detachment. The formal notification of the reasons for the transfer was not given to the appellant until August 2014 when he received a letter from Acting Chief Superintendent Murphy. The appellant was advised that his transfer from the OCEB to Ottawa was temporary until a permanent vacancy could be identified.

11The reason given for the transfer was as follows:

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

12On October 10, 2014 the appellant was advised by the respondent that he was being transferred again, this time to the Kemptville detachment, effective October 27, 2014.The reasons given for this transfer were essentially the same as provided in August.

Issues

13The appellant submits that the following issues need to be determined:

1. Was there a finding of misconduct and if so, was it unreasonable?
2. Was the discipline imposed by the respondent unreasonable?
3. If the discipline is unreasonable what is the appropriate remedy?
4. What is the Commission's jurisdiction to award a remedy?

14The appellant is requesting an order from the Commission that his transfers and the removal of the 200 hours from his vacation bank were disciplinary actions imposed contrary to Part V of the PSA and therefore null and void. He also requests a variety of ancillary relief dependent on our characterization of the nature of the actions taken by the respondent.

15The issues before us were considerably narrowed at the outset of the hearing when counsel for the respondent conceded that the transfers were, in fact, disciplinary actions. No such concession was made regarding the removal of the 200 hours from the appellant's vacation bank.

16Accordingly, in our view the first issue to be decided is the jurisdiction of the Commission when discipline has been imposed on the appellant without the respondent having followed the procedure under Part V of the PSA. Section 87(1) clearly contemplates that a first instance hearing would be held and a decision rendered before an appeal is made to the Commission. However, both parties submit that the Commission has the jurisdiction to deal with the issues raised but differ as to the appropriate orders that can or should be made.

17The appellant submits that we can simply set aside the transfers, compensate him for his consequent financial losses and restrain the respondent from taking any further disciplinary action. He further submits that it would be "unconscionable" for us to order a hearing under all of the circumstances. The respondent submits, now that the fact of the disciplinary action has been conceded, we should invoke section 78(1) of the PSA and direct that the Commissioner of the O.P.P. hold a hearing into the alleged misconduct.

18In our view, we can make an order under s. 78 (1) in the circumstances, although not necessarily in the exact manner as proposed by the respondent.

19The jurisdiction of the Commission in a similar situation was considered in Provincial Constable Terry Richardson v. Ontario Provincial Police, 2012, OCPC.

20In Richardson the officer was transferred and advised by the O.P.P. that it would take steps to recoup 34 days for which it determined he could not account for his time. The officer filed a grievance under the OPP collective agreement in an attempt to challenge the proposed action. An arbitrator decided that she did not have jurisdiction to deal with the grievance as the dispute was disciplinary in nature and could only be dealt with under Part V of the PSA.

21The officer brought an appeal to the Commission and a motion to determine its jurisdiction on the appeal. The Commission dismissed the appeal, purportedly brought under section 87(1) of the PSA, but made an order under section 78(1) directing the O.P.P. Commissioner to hold a hearing under section 76(9) into the alleged misconduct.

22The Commission in so doing essentially adopted the reasoning of the Supreme Court of Canada in Regina Police Association Inc. and City of Regina Board of Police Commissioners [2000], 1 S.C.R. to find that it had jurisdiction to deal with the matter notwithstanding that there was no first instance hearing. The Commission wrote the following:

The failure of the chief of police to follow the appropriate procedure is not a bar to jurisdiction. The essential character of the dispute remained a disciplinary one, even if the chief of police did not follow the specific scheme in imposing punishment: Regina Police Association, supra, at para. 36.

The Supreme Court concluded that "...the legislature has shown its intention to have all matters related 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: Regina Police Association, supra, at para. 34.

23At para. 39 of the Regina decision the Court wrote the following:

The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature.

24In Abbott v. Collins 2003 CanLII 46127 (ON CA), [2003], 64 O.R. (3d) 789 the Court of Appeal dealt with a decision to allow a civil action, brought by a number of police officers against senior officers claiming that their transfers were disguised forms of discipline, to proceed. The Court, adopting the reasoning in Regina, dismissed the action holding that the Superior Court did not have jurisdiction to hear a civil action where the essential nature of the dispute involved the discipline of police officers, including disguised discipline.

25It has been established that arbitrators, at least as far as the rights of O.P.P. officers are concerned, do not have jurisdiction to deal with disciplinary matters and the Court in Abbott decided that it did not have jurisdiction. The Commission is the statutory body mandated by legislation to deal with police discipline matters. We conclude that the Commission has the jurisdiction to deal with this matter as we propose.

26The Commission held in Richardson that it had jurisdiction to deal with the disciplinary action taken but it declined to hold a first instance hearing, based on the wording of section 87(1) of the PSA. There is no dispute that this section applies to the Commissioner of the O.P.P. as it does to a chief of police.

27Applying this same reasoning, we conclude that the appropriate disposition in this matter is to direct the Commissioner of the O.P.P. to hold a hearing pursuant to section 76(9) of the PSA into the alleged misconduct of the appellant. To be clear, the question to be decided is whether the appellant committed misconduct and if that misconduct warranted his transfer from his Team Leader position with the OCEB that he held in June, 2014.

28In our view different considerations apply to the dispute concerning the removal of the 200 hours from the appellant's vacation bank. The banked time was not removed as a disciplinary action. It was removed because the respondent took the position that the appellant was not entitled to the hours he claimed. This type of dispute, entitlement to pay or vacation time, is one that should be decided pursuant to the grievance and arbitration provisions of the O.P.P. collective agreement. Such disputes, which in essence relate to payroll matters may arise frequently. It would be anomalous to require them to somehow be resolved under the PSA.

29The ancillary relief requested by the appellant includes that we should make an order compensating him for any lost wages, specialty pay and loss of overtime suffered as a result of the "illegal disciplinary action" taken by the respondent. In our view, assuming we had jurisdiction to make such an order, it would be premature to do so as the merits of the disciplinary action would have to be determined first. Similarly, we are not in a position to make any order "canceling" the transfers of the appellant.

30We would be remiss in our consideration of this matter if we did not stress that this type of "appeal" should not come to the Commission. Disciplinary matters should come to the Commission in the usual course, after a first instance hearing, as stipulated by section 87(1) of the PSA.

Order

31Pursuant to section 78(1) of the PSA the Commission directs the Commissioner of the O.P.P. to hold a hearing into the alleged misconduct of the appellant and the propriety of the transfers of the appellant from the position held in June 2014 prior to the transfers.

32The removal of the 200 hours from the appellant's vacation bank is a matter to be determined pursuant to the grievance and arbitration provisions of the O.P.P. collective agreement.