COURT FILE NO.: 166/02

DATE: 20031103

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lane, Somers, greer jj.

B E T W E E N:

THE CORPORATION OF THE TOWN OF PRESCOTT and the PRESCOTT POLICE SERVICES BOARD

Applicants

• and -

HER MAJESTY THE QUEEN IN THE RIGHT OF ONTARIO as represented by the ONTARIO PROVINCIAL POLICE and THE ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

Respondents

David Migicovsky and Lynda A. Bordeleau for the Applicants

Leslie M. McIntosh for the Respondent, Her Majesty the Queen in the Right of Ontario as represented by Ontario Provincial Police

Ronald D. Manes and Lisa Corrente for the Respondent, Ontario Civilian Commission on Police Services

Martin Doane for the Prescott Police Association

HEARD: Friday, June 13, 2003

SOMERS J.

REASONS FOR JUDGMENT

1In this application, the applicants seek judicial review of two decisions of the Ontario Civilian Commission on Police Services (“OCCPS” or the “Commission”). The first was issued December 5, 2001, refusing to consent to the abolition of the Prescott Police Service (the “force”) for the purpose of having the policing requirements of The Corporation of the Town of Prescott (the “Town”) and the Prescott Police Services Board (the “Board”) taken over by the Ontario Provincial Police (the “OPP”). The second decision was issued January 14, 2002 and confirmed the December 5, 2001 decision.

BACKGROUND

2On May 31, 2001, the Town and the Board made a formal request to the Commission pursuant to section 40 of the Police Services Act, R.S.O. 1990, c. P.15 (the “Act”) for the abolition of the existing force and the replacement of all policing services in the Town by the OPP. Section 40 of the Act reads as follows:

“reduction or abolition of police force

40(1) A board may terminate the employment of a member of the police force for the purpose of abolishing the police force or reducing its size if the Commission consents and if the abolition or reduction does not contravene this Act.

criteria for commissions consent

(2) The Commission shall consent to the termination of the employment of a member of the police force under subsection (1) only if,

(a) the member and the Board have made an agreement dealing with severance pay or agreed to submit the matter to arbitration; or

(b) the Commission has made an order under subsection (3).

order imposing arbitration

(3) If the member and the Board do not make an agreement dealing with severance pay and do not agree to submit the matter to arbitration, the Commission, if it is of the opinion that it would be appropriate to permit the abolition of the police force or the reduction of its size, may order the member and the Board to submit the matter to arbitration and may give any necessary directions in that connection.

arbitration

(4) Section 124 applies to an arbitration referred to in this section with necessary modifications.”

3In its application, the Town advised the Commission that all of the existing uniformed members of this Board had received notices of termination and would be offered employment by the OPP with one exception. In discussions with the OPP, the Board was advised by that force that it was not prepared to hire Constable Darren Davis. He had at one time been a member of the OPP force, but had been permitted to resign following some unspecified disciplinary proceedings. It was a condition of the resignation that he not apply to be rehired by the OPP. Constable Davis was advised that the Board would proceed to discuss his severance entitlement with the Prescott Police Association.

4The Ministry of the Solicitor General has prepared and makes available a Guidebook dealing with the type of procedure being sought by the Town and the Board. It is titled “Restructuring Police Services in Ontario” (the “Guidebook”). Among other things, it deals with the transfer to the OPP of policing services in municipalities. In the section of the Guidebook dealing with employment, it states:

“The OPP will offer employment to all serving uniformed municipal police officers who meet the requirements of the Police Services Act. However, the Commissioner reserves the right to review the suitability of any officer charged with a criminal offence. A municipal officer who is on disability at that time of disbandment of a municipal police will be offered employment with the OPP on satisfactory evidence from a medical practitioner of the member’s suitability to return to duty.”

5On August 15, 2001, the Commission gave notice that it would conduct a public hearing to consider the application made by the Town and the Board. Prior to the hearing, it had received submissions from the Prescott Police Association and the Ontario Police Association asking the Commission not to consent to the disbandment alleging that the proposal made by the OPP did not follow the Guidebook because of that force’s refusal to hire Constable Davis. Constable Davis was not facing any criminal charges and was not disabled. Submissions were also made by the Board and the OPP.

THE DECISION

6On December 5, 2001, the Commission issued its decision, stating by way of preliminary observation that the main purpose of this enquiry under section 40 of the Act was to ensure that the proposal made by the OPP to replace a disbanded community force would satisfactorily meet the policing needs of that community. It expressed the view that the technical proposals were satisfactory and would provide adequate police service for the community.

7The Commission went on, however, to indicate dissatisfaction with the question of whether or not current members of the police force were being dealt with fairly. It decided that the disbandment of the force would not proceed unless seven specific conditions were met. One of these was that Constable Davis and the OPP agree to submit to binding arbitration on the question of whether or not he met the requirements of the Act for the purpose of determining his entitlement to employment as an officer of the OPP. The Commission was subsequently advised by the Board that, with the exception of that particular condition, the remaining six conditions were acceptable and would be met.

8In its reasons, the Commission deal first with the question of the adequacy of the proposed policing arrangements. These are set out at some length in the reasons and include observations regarding equipment, vehicles, personnel and the like. It then goes on to consider the question of hiring by the OPP of the existing municipal police officers. Their approach to this question is stated at page 5 of their reasons thus:

“The next issue is whether, under the proposal, the current members of the police service that is the subject of the abolition are being dealt with in a fair and reasonable basis. If any member is liable to termination as a consequence of the abolition, the question then becomes whether the parties have reached an agreement with respect to severance and have consented to having any outstanding matters referred to arbitration. If so, our involvement in this issue would be at an end.

In cases where there is no agreement either with respect to settlement or arbitration, the Commission may direct the parties to arbitration. This, however is only in those cases where, in all of the circumstances, the Commission is of the opinion that it would be appropriate to permit the abolition to proceed.”

9The requirement that was unacceptable to the OPP and which in effect halted the disbandment of the Prescott force was stated by the Commission as follows:

“That Constable Davis and the Ontario Provincial Police agree to submit to binding arbitration the question of whether or not Constable Davis meets the requirements of the Police Services Act for the purpose of determining whether or not he is entitled to an offer of employment under the terms of the Guidebook.”

The Commission indicated that if this requirement was not met, disbandment of the force would not proceed.

APPELLANTS’ POSITION

10The wording of section 40 of the Act indicates that it is incumbent upon the Commission to consent to the termination of the employment of a member for the purpose of abolishing the police force only if the member and the Board have made an agreement dealing with severance pay or have agreed to submit the matter to arbitration. This would appear to deal with any steps taken between the Board and the police officer in question and not the OPP. Similarly subsection (3) of section 40 also deals with some form of agreement or arbitration proceedings between the Board and the member and not the OPP. It states that whether it has been a failure of the Board or of a member to take the steps, the Commission may order binding arbitration on “the member and the Board”. There is no reference to the OPP in this subsection. Moreover, while the Commission is granted the power to force parties to arbitration, the subject matter which can be so ordered is limited to whether or not a satisfactory agreement regarding severance pay has been reached between the police officer and the Board which once employed him. There is no power granted to the Commission to force the OPP to any form of arbitration.

11The Guidebook on which the Commission placed heavy reliance is neither a law nor a regulation. It ought not to be anything more than a guideline and certainly could not supplant existing legislation.

12The section of the Guidebook, referred to earlier in these reasons, was the subject of some discussion before the Commission. Counsel for the Prescott Police Association and for Constable Davis both argued that in order for the individual member to be treated fairly, the guidelines laid down by the Guidebook must be followed despite the fact that the Guidebook is neither law nor regulation. The Commission said, however,

“That being said, we are of the view that the section of the protocol dealing with future employment upon restructuring reflects an understanding between policing stakeholders that is central to orderly municipal police restructuring.”

13Following release of the Commission’s reasons, the applicants informed it that six of the seven conditions were acceptable. Additionally, it argued that the Commission had no jurisdiction to order the OPP to submit to binding arbitration with the member. Notwithstanding this, the Commission notified all of the parties, including the OPP, on January 14, 2002, as follows:

“We received your correspondence today and it was tabled at the Commission meeting. On motion, it was decided as follows:

‘The decision of December 5, 2001, which was reached after a full public hearing, remains unchanged.’ ”

RESPONDENTS’ POSITION

14The position taken by the respondent, supported by the Prescott Police Association, is that based upon decisions made by the Commission in previous cases, the Guidebook was created as a result of “significant disruptions” in police services in other parts of the province and was developed in order to assist the Ontario policing community with the process of disbandment. They argued that it establishes an industry standard to ensure consistency in municipal police restructuring. A specific review of Constable Davis’s position at the time of his earlier employment with and subsequent resignation from the OPP was gone into in detail. Section 43 of the Police Services Act requires the OPP to offer employment to all serving uniformed municipal police officers, who meet the requirements of that Act. As matters stood at the time of the application to disband, no disqualifying conditions applied to Constable Davis. They argued, therefore, that the Commission had the obligation to ensure that what they referred to as “the protocol contained in the Guidebook” was properly applied to Constable Davis. The Commission correctly refused to approve the disbandment.

15The respondents submitted, in addition, that the Commission is owed a substantial degree of curial deference given the high degree of expertise it possesses and must exercise. It pointed to the statement made by Abella J. A. in Ontario Civil Commission on Police Services v. Browne et al (2001), 2001 3051 (ON CA), 56 O.R. (3d) 673 (C.A.) at 697, where she said:

“In addition, the specialized expertise of the tribunal cannot be doubted, as a range of its assigned statutory duties demonstrates. Under the Act, the Commission is empowered to hear appeals; suspend or remove the chief of police or members of board; disband the police force; appoint an administrator to perform specific functions; conduct investigations; conduct inquiries under the direction of the Lieutenant Governor in Council; conduct inquiries on its own motion; conduct reviews under s. 72; and make recommendations regarding the policies or services of a police force.

The combination of the purpose of the Act , the privative clause, and the designated and specialized expertise of the Commission call for patent unreasonableness as the guiding standard of review.”

CONCLUSIONS

16The special expertise of the Commission cannot be doubted. If one reviews the findings and decision of the Commission on the question of the suitability of the force to carry out satisfactorily the necessary police duties within the community, one can see clear evidence of the utilization of such specific expertise. Subjects reviewed with approval were such matters as the ratio of uniformed officers to citizens; the ratio of supervisors to constables; the type of computerized records management system employed; the vehicles possessed by the force; the side arms with which it is equip; and the citizens’ crime ratio as experienced there in prior years. One can readily identify the employment of such specialized experience and knowledge. The matter at issue in this appeal, however, is not one which requires or needs to rely on that expertise. Here the issue is whether or not the Commission correctly interpreted section 40 (3) of the Police Services Act by ordering that the OPP must submit, along with Constable Davis, to binding arbitration on the question of whether or not he is suitable to be employed by that force. The Divisional Court said in the case of Ottawa – Carleton (Region) Police Services Board v. Ontario (Civilian Commission on Police Services), [2001] O.J. No. 5498 22:

“The Police Services Act covers a wide range of police matters. It is this statute which creates both the applicant and the respondent. It cannot be said that the respondent possesses any special expertise in the interpretation of the Police Services Act. It is to be noted as well, the Commission is not insulated by any privative clause in the Police Services Act. The interpretation of the Police Services Act by the respondent to find that the Ottawa Board was not in compliance with Act and that as a result, the respondent acquired jurisdiction to act pursuant to section 9 (2) was a pure question of law respecting the jurisdiction of the respondent. The appropriate standard of review to be applied by this court to the direction issued by the respondent is one of correctness.”

17In our view, the Guidebook, while of undoubted importance in assisting to establish guidelines to assist the Ontario policing community with the process of disbandment is not a statute or a regulation. Section 40 (3) of the Police Services Act, in circumstances where there has been no agreement regarding severance pay of a terminated member, authorizes the Commission to order the Board and that member to submit to arbitration. The subject matter of such arbitration is by the statute limited to the question of severance pay of the terminated member and, the wording of the Guidebook notwithstanding, does not extend to consideration of whether or not that member is fit or unfit for employment by the OPP. As well, it has no authority to direct the OPP to submit to arbitration at all. The section is limited to directing this step to two parties only, namely, the Board and one of its members. We have concluded and order that the application should be allowed and that the requirement that the OPP to “agree to submit to binding arbitration, the question of whether or not Constable Davis meets the requirements of the Police Services Act for the purpose of determining whether or not he is entitled to an offer of employment under the terms of the Guidebook” be set aside. Further, in view of the Commission’s stated opinion that in all other respects, it was satisfied with the proposed disbandment of the Prescott Police Service, it is directed to consent to the proposed termination of the employment of Constable Davis.

18If the parties cannot agree between themselves on the question of costs, we will entertain brief written submissions within 30 days of the release of these reasons.

SOMERS J.

I agree:

LANE J.

I agree:

GREER J.

DATE:

COURT FILE NO.: 766/02

DATE: 20031103

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lane, somers, greer jj.