COURT FILE NO.: 04-DV-1008
Ottawa
DATE: 20050407
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: the kingston police services board and
THE KINGSTON CITY POLICE ASSOCIATION
BEFORE: LEITCH R.S.J, MATLOW, and VALIN JJ.
COUNSEL: David Migicovsky, for the Applicant
Steven Welchner, for the Respondent
HEARD: April 4, 2005
E N D O R S E M E N T
MATLOW J.
[1] This application for judicial review is allowed. An order will issue as asked setting aside the award of the arbitrator dated September 9, 2003, and the supplementary award of the same arbitrator dated January 12, 2004. The applicant is entitled to recover its costs, fixed at $4000 as requested, from the respondent within 30 days.
[2] The subject of the arbitration under review was a grievance filed by the respondent on behalf of a police constable who was a member of the Kingston Police Service who wished to become a canine officer with the force. As part of the initial process leading to such a transfer, the officer, and all other interested officers, were required to attend a ten day candidate selection course conducted by the Ontario Provincial Police. In order to be considered for such a transfer, an officer had to complete that course successfully. The grievor had earlier been selected by the applicant to attend the course but, before the course was held, it was cancelled. However, on the next occasion when the course was held, the grievor was not selected by the applicant because the deputy chief of police had decided that the grievor was not a suitable person to attend. At that time, the grievor was not specifically told why he had not been selected to attend. However, the evidence at the arbitration revealed that the principal basis relied on for the decision was the opinion of the force’s outgoing canine officer with whom the grievor had trained that the grievor was lazy, slow to respond to calls and had a poor work ethic.
[3] The arbitrator allowed the grievance and, in his reasons, stated the following;
In my view, if management had concerns about the performance of the grievor, and if those concerns were sufficient to disallow the grievor from taking part in a candidate selection process for a canine officer, it was incumbent upon management to bring these concerns to the attention of the grievor and to give him the opportunity to respond. This is particularly so when, on the face of the memorandum seeking applicants to go on the candidates selection course there is the suggestion that persons who meet the minimum criteria will be considered, and there is mention of a selection process to be designed, presumably to deal with situations where are too many applicants, or other situations or concerns which might result in the exclusion of an applicant who otherwise meets the minimum requirements.
In my view, the exclusion of (the grievor) from participating in the candidate selection process, based on allegations of unsuitable work performance, when such allegations were not brought to his attention, and where there was a process provided for (word missing from original text) to have an interview, or otherwise to seek comments or explanations from the grievor prior to determining that he was unsuitable, was to treat the grievor adversely without cause.
In doing so the Board violated the collective agreement. Accordingly, the grievance is allowed.
[4] It was common ground between the parties that article 5 of the collective agreement, which addresses the factors to be addressed in relation to promotions, was not applicable to the grievor as the position of canine officer was not a promotion.
[5] Accordingly, the grievance filed by the respondent was confined to an alleged violation of the management rights provision, article 4 of the collective agreement, which reads as follows:
- MANAGEMENT RIGHTS
4.1 The Association recognizes that, subject to the provisions of the Police Services Act and the Regulations made thereunder by the Lieutenant Governor in Council, it is the exclusive function of the Board to:
(a) maintain order, discipline, and efficiency; and
(b) hire, discharge, direct, classify, transfer, promote, demote, suspend, or otherwise discipline any member.
4.2 The Board agrees that no member will be dealt with adversely without "just cause" and that it will exercise the functions outlined in article 4.1 in a manner consistent with this agreement.
4.3 If a member claims that the Board has exercised any of the functions outlined in article 4.1 in violation of this agreement, then such a claim may be the subject of grievance under the provisions of the grievance procedure outlined in this agreement or under the arbitration procedure set out in the Police Services Act."
[6] The applicant’s principal attack on the arbitrator’s award is based on what its counsel submits was the arbitrator’s failure to reasonably interpret and apply the language of article 4. I agree substantially, but not entirely, with his submissions on this issue.
[7] In my view, the selection process to determine who will attend the candidate selection course is part of the “transfer” process referred to in paragraph 4.1 (b) and is required to be carried out in accordance with article 4. I respectfully disagree with counsel’s submission that it precedes the “transfer” process and is not included within the scope of article 4.
[8] It follows, therefore, that the right to decide who was to be selected to attend the course was a matter that fell within the “exclusive function of the Board”. The applicant’s right to make the decision as it saw fit was limited only by the further requirement set out in article 4.2 which bound the applicant to conduct the selection process “in a manner consistent with this agreement” and not to refuse to select the grievor “without just cause”.
[9] There is, however, nothing in the collective agreement, in the memoranda posted by the applicant giving notice of the “Canine Selection Process or otherwise in law, which required the applicant to engage the grievor in the selection process in the manner required by the arbitrator’s award and the applicant’s failure to do so could not reasonably be characterized, as the arbitrator did, as a violation of the collective agreement.
[10] However, as stated above, the applicant’s decision remained restricted by the provisions of article 4.2 and, if it had been proven to have been made made without just cause, it would clearly have reflected a violation of the collective agreement. It was, therefore, incumbent on the arbitrator to determine, on the evidence before him, whether or not the applicant’s decision was, in fact, made without just cause. In the context of this case, this required an examination of the merits of the opinion on which it was based.
[11] Regretfully, however, the arbitrator’s award reveals that he failed entirely to address this critical issue except, erroneously, as referred to in paragraph 9 above. In my view, this alone is sufficient to require this Court to intervene.
[12] Both counsel are in agreement that the appropriate standard of review with respect to the arbitrator’s interpretation of the collective agreement is that of reasonableness. I agree. The four factor test set out in Pushpanathan v Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 leads to that conclusion. I also conclude that the arbitrator’s interpretation fails to meet that standard.
[13] Having determined that the arbitrator’s award in which he addressed the merits of the grievance must be set aside, it follows that his supplementary award in which he granted relief to the grievor must also be aside. If, however, I had come to a different result with respect to the initial award, I would not have interfered with the relief granted. It was creative and fairly and reasonably addressed the result that he had reached.
Matlow J.
Leitch R.S. J.
Valin J.
DATE: April , 2005