COURT FILE NO.: 149/04

DATE: 20050525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, lane and dunnet jj.

B E T W E E N:

TORONTO POLICE SERVICES BOARD

Applicant

• and -

TORONTO POLICE ASSOCIATION AND C. GORDON SIMMONS

Respondents

M.A. Hines, for the Applicant

C.M. Mitchell and E. Gedalof, for the Respondents

HEARD at Toronto: May 3, 2005

O’DRISCOLL J.:

I. Nature of Proceedings

1The Applicant, Toronto Police Services Board (Board), launched this application for judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1 seeking an order to quash and set aside the Arbitration Award, dated January 20, 2004, of C. Gordon Simmons (Arbitrator).

2The Arbitrator ordered the Board to compensate the Grievor the difference between the amount the Grievor received as a constable between September 1, 1998 and February 22, 1999 and the amount he would have received as a sergeant/detective had he been promoted to that rank on September 1, 1998.

3The application is dismissed.

II. Background and Chronology

4On July 14, 1987, the Grievor, Domenic Sinopoli, was hired as a member of what now is the Toronto Police Service (TPS).

5In 1997, the Grievor, a first class constable, applied for promotion to the rank of sergeant. By TPS Routine Order, dated June 11, 1998, it was indicated that the Grievor ranked 12th out of 136 candidates selected for the eligibility pool for promotion to the rank of sergeant/detective.

6On August 5, 1998, the Grievor was charged with two (2) counts of misconduct under the Police Services Act, R.S.O. 1990, c. P. 15 (PSA).

7By TPS Routine Order, dated August 27, 1998, one hundred (100) candidates were promoted to the rank of probationary sergeant/detective effective September 1, 1998. When the Grievor saw that his name was not on the list, on August 31, 1998, he telephoned the Employment Unit of the TPS and was told that he had not been promoted because of the charges under the PSA.

8On September 4, 1998, a grievance was filed.

9By TPS Routine Order, dated October 27, 1998, a further fourteen (14) candidates were promoted to the rank of probationary sergeant/detective.

10In November 1998 correspondence, the Association was advised by the Manager of Labour Relations for the Board that a recommendation that the Grievor be promoted would not go to the Board until the PSA charges against the Grievor had been concluded.

11By TPS Routine Order, dated January 28, 2000, a further twelve (12) candidates were promoted to the rank of probationary sergeant/detective.

12On February 8, 1999, during the hearing of the charges under the PSA, the hearing officer, Superintendent Terence Kelly, ordered that the case against the Grievor be withdrawn.

13By TPS Routine Order, dated February 22, 1999, the Grievor was appointed an acting sergeant effective February 22, 1999.

14By TPS Routine Order, dated April 23, 1999, the Grievor, along with fifteen (15) other candidates, was promoted to the rank of probationary sergeant, effective April 27, 1999.

15On March 3, 1999, the Association transferred the grievance to conciliation under s. 123 of the PSA. The Board took the position that the grievance had been resolved with the Grievor’s promotion. The Association took the position that the Grievor was entitled to receive the difference in compensation between that of a constable and a sergeant between September 1, 1998 and February 22, 1999 “for having been held back improperly from promotion”.

16The Association referred the grievance to arbitration on July 22, 1999.

17By TPS Routine Order, dated July 23, 1999, the final seven (7) promotions from the list of one hundred and thirty six (136) candidates were made.

18The Arbitrator was appointed and the matter was to proceed on December 15, 1999 but was adjourned to await the outcome of an arbitration in an analogous case, namely, that of P.C. Douglas Barnard. There, the grievor claimed that the same Board withheld his promotion pending the resolution of disciplinary charges under the PSA in contravention of s. 68(9) of the PSA.

19The Board’s promotion policy is set out in “Service Directive 14-10”:

14-10 Promotion – police constable to sergeant/detective

Eligibility Requirements

Police constables are eligible to apply for promotion provided they:

• are a First Class Constable;

• must be in compliance with the Use of Force Regulation under the Police Services Act;

• have not been convicted of a criminal offence for which a pardon has not been obtained;

• have at least two years with a clear discipline record from the completion date of any penalty imposed by a hearing tribunal as a result of being found guilty of an offence under the Code of Conduct set out in the Police Services Act;

• are not the subject of an appeal against a penalty or finding of guilt imposed by a hearing tribunal with respect to an offence under the Code of Conduct set out in the Police Services Act; and

• are not under suspension pursuant to the directive entitled ‘Suspension from duty – police officer’ (13-05)

If at any point in the promotional process a candidate ceases to conform to the above requirements, that candidate will be disqualified from the process.

Subsection 68(9) of the PSA states:

(9) The chief of police or board, as the case may be, may cause an entry concerning the matter, the action taken and the reply of the chief of police, deputy chief of police or other police officer against whom the action is taken, to be made in his or her employment record, but no reference to the allegations of the complaint of the hearing shall be made in the employment record, and the matter shall not be taken into account for any purpose relating to his or her employment unless,

(a) the complaint is proved on clear and convincing evidence; or

(b) the chief of police, deputy chief of police or other police officer resigns before the matter is finally disposed of.

20On March 3, 2000, the Barnard Award issued and the Arbitrator, M.K. Saltman, stated:

p. 12 I am, therefore, of the view that, unless the Officer resigns, the proscription in Subsection 68(9) against taking the matter into account for any purpose relating to his or her employment applies only if the Officer has been found not guilty of misconduct at the conclusion of the disciplinary hearing.

p. 13 In my view, however, the Legislature could not have intended to exclude reference to allegations of misconduct for any employment purpose, including promotion, based on the presumption of innocence when the Act expressly allows for suspensions with pay when a Police Officer is suspected of or charged with a statutory offence or an offence against the Code of Conduct (Ss. 67(1)).

In the result, I find that the Board’s policy, which allows promotions to be withheld pending the disposition of Police Services Act charges, does not contravene Subsection 68(9) of the Police Services Act.

21In the Barnard case, counsel for the Association brought an application for judicial review. The application was heard and disposed of on March 4, 2002. The Court, in part, said:

1. S. 68 of the Act, both by its terms, and in the context of the Act as a whole, deals with the consequences of a disciplinary hearing regarding dismissal or demotion, once it is has been completed and a determination has been made.

2. Although the arbitrator did not deal with this point, we observe that s. 68 deals with matters such as dismissal and demotion, while issues relating to promotion are addressed in the collective agreement. In our view, it does not necessarily follow that s. 68 statutory provisions addressing demotion should be imported into a grievance process concerning an assertion of unfair delay in promotion.

3. In the context of the Act as a whole, it makes more sense, in our view, to regard the purpose of s. 68(9) as being to protect an officer from stigmatization or penalization when he or she was subject to a hearing for a disciplinary offence which was not proved.

Toronto Police Assn. v. Toronto Police Services Board, [2002] O.J. No. 2176

22During the arbitration hearing in this case, counsel advised the Arbitrator that P.C. Barnard had been found guilty of the charges that had been laid against him under the PSA and thereby became ineligible for promotion because of the Board’s Service Directive 14-10 (supra).

23Twenty-six (26) paragraphs of “Agreed Facts” form part of the Award (p. 3 – p. 5). It states, in part:

23. Shortly after the Divisional Court decision [in Barnard], the Association informed the Board of its view that while the Court’s ruling was that the Board was within its rights to defer both Barnard’s and Sinopoli’s promotions when it did, the Court did not deal with the remaining issue in Sinopoli’s case; i.e., where an officer, whose promotion was deferred because of pending disciplinary charges, is subsequently exonerated and promoted, should that officer be made whole by the payment of compensation to him/her by the Board equal to the difference in salary actually earned and the salary that would have been earned had the promotion not been deferred. The Association took the position, inter alia, that compensation should be paid: see Tab 20. In response, the Board denied any liability to pay compensation.

24The Arbitrator conducted hearings on December 6 and 19, 2003. His twenty-one (21) page Award was released on January 20, 2004. This application for judicial review issued on March 12, 2004.

III. Standard of Review

25In my view, applying the principles set out by the Supreme Court of Canada in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, the appropriate standard is reasonableness. Major J. (for a seven (7) judge court) said:

27The arbitrator in this case was required to interpret the collective agreement. Collective agreements, although similar to, are different in some respects from other types of contracts. While interpreting contracts fall squarely within the expertise of courts, arbitrators, who function within the special sphere of labour relations, are likely in that field to have more experience and expertise in interpreting collective agreements. Consequently, this favours a certain degree of curial deference to arbitrators’ interpretation and application of collective agreements.

29The nature of the problem at issue is a question of law – the interpretation of the terms of the collective agreement. …

30Taking into account all these factors, the arbitrator’s decision in this appeal is entitled to a measure of deference, the appropriate standard of which is reasonableness.

31In Ryan [2003 SCC 20, [2003] 1 S.C.R. 247] at para. 55, Iacobucci J. explained that a decision will be unreasonable

… only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam [1997 385 (SCC), [1997] 1 S.C.R. 748] at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

It is not necessary for every element of the tribunal’s reasoning to pass the reasonableness test. The question is whether the reasons as a whole support the decision: Ryan, supra, at para. 56.

35There is a narrow line between expressly stated and necessarily implied. An “express” restriction may nonetheless be open to interpretation. The presence of the provisions referred to by the arbitrator led to a decision that, taken as a whole, is capable of withstanding a “somewhat probing examination”: Ryan, supra, at para. 46; Dr. Q., 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 39. Even if a more or less compelling conclusion can be drawn from the provisions of the collective agreement, that does not, on its own, render the arbitrator’s interpretation unreasonable.

26In Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727, the Court said:

17The relative expertise of the board also militates in favour of some deference. Arbitrators function as labour relations gatekeepers, and the core of their expertise lies in the interpretation and application of collective agreements in light of the governing labour legislation. In this case, the arbitration board was called upon to interpret the Code, legislation intimately connected with its mandate; see Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 148 (SCC), [1995] 1 S.C.R. 157, at para. 48, and Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, at para. 39. Moreover, where the provisions at issue have been incorporated into the collective agreement, as in these circumstances, deference to the board is further justified. In this regard, see D.J.M. Brown and D.M. Beatty, Canadian Labour Arbitration (3rd ed. 2003), at para. 2:2120.

IV. The Arbitrator’s Analysis

27The Arbitrator examined the Board’s Promotion Policy 14-10 (supra), which provides a list of requirements and qualifications that a police constable must have to be eligible to apply for promotion. It provides, in part, that:

(i) a candidate has at least two (2) years with a clean discipline record from the completion date of any penalty imposed by a hearing tribunal, and

(ii) a candidate is disqualified as a candidate for the promotion process if at any point s/he ceases to conform to the requirements.

28The Arbitrator points out that the Board’s policy set out in 14-10 is silent regarding the Grievor’s situation – the Grievor was a qualified candidate; charges were laid under the PSA against him; this disqualified the Grievor’s candidacy. The charges were withdrawn and not proved on clear and convincing evidence. As a result, the Grievor’s promotion was deferred and he is out of pocket.

29The Arbitrator then turned to the Management Rights Article of the Collective Agreement:

3:01 (a) The Association and its members recognize and acknowledge that, subject to the provisions of the Police Services Act and the Regulations thereto, it is the exclusive function of the Board to:

(i) maintain order, discipline and efficiency;

(ii) discharge, direct, classify, transfer, promote, demote or suspend, or otherwise discipline any member;

(iii) hire.

(b) If a member claims that the Board has exercised any of the functions outlined in paragraph (a) (ii) in a discriminatory manner or without reasonable cause, then such a claim may be the subject of a grievance under the provisions of the grievance procedure outlined in this Collective Agreement or dealt with under procedures within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services, as prescribed by the Police Services Act.

(c) The Board agrees that it will not exercise any of the functions set out in this Article in a manner inconsistent with the provisions of this Collective Agreement or the Police Services Act of Ontario and the Regulations thereto.

30The Arbitrator reasoned this way:

The wording contained in art. 3:01 is somewhat unusual. One associates “reasonable cause” with some form of discipline. But the parties have applied the term “reasonable cause” to not only to include discipline but with other categories including that of promotion. One plausible interpretation that may be applied to the article is the Board agrees it will not exercise its exclusive function regarding promotion in a manner that is unreasonable. Whatever constitutes unreasonable is a matter of interpretation as the word has not been defined. But the Act and the policy taken together permit the deferral of promotions while charges are pending. Once the charges have been disposed of and it is determined the police officer has not been found guilty of any wrongdoing one must enquire what, if any, penalty the police officer suffered as a result of those charges having been laid against him.

…did the police officer suffer a penalty in the circumstances that have been described above? The Association asserts Cst. Sinopoli and Cst. Barnard would have been promoted to the rank of sergeant “but for” the charges having been laid against them. … Counsel for the Board did not disagree with the Association’s assertion the two constables would have been promoted but for the outstanding charges. I therefore find as a fact the two constables would have been recommended for promotion and in all likelihood would have been promoted had they not been charged with misconduct.

Accordingly, I find that the grievor suffered a financial penalty because of the two charges of misconduct that were laid against him but were not subsequently proven. He would have been recommended for promotion and based on the submissions and acknowledgement of the parties I accept as a fact would have been promoted on September 1, 1998 but for the pending misconduct charges. …

In my respectful opinion, the Board had the lawful right to defer promoting the grievor while the misconduct charges were pending. This right is provided in Policy 14-10 which has been found not to be inconsistent with the Police Services Act. But the policy is silent on what is to happen in situations where the charges are subsequently not proven. I have found the officer has suffered a financial penalty as a result of the deferral of promotion. In my view, the constable ought not to be penalized for what happened. …

Accordingly, I am of the view that until the parties consider this issue and either agree on some resolution through an amendment to the collective agreement or by the promulgation of a policy on how deferrals of promotions in circumstances that have been presented in the instant situation are to be dealt with, it is open for me to fashion an appropriate remedy which is reasonable in all the circumstances.

Therefore, in applying this reasoning, I order the Board compensate the grievor the difference between the amount he received as a constable between September 1, 1998 and February 22, 1999 and the amount he would have received as a sergeant (detective) had he been promoted on September 1, 1998. This, in my view, is an appropriate and reasonable result. (Award: p. 19 – p. 21)

V. The Submissions of Counsel for the Applicant

31In paragraphs 31 and 32, of his factum, his position is summarized as follows:

31. It is the Applicant’s position that the Arbitrator’s decision does not disclose any legal rationale for the conclusions he reached. If this analysis is accepted, his Award should be reviewed and quashed according to the reasonableness standard.

32. It is, however, at least arguable that the Award was based upon the Arbitrator’s interpretation of subsection 68(9) of the PSA. If this is held to be the case, the Award should be reviewed and quashed according to a standard of correctness based upon its inconsistency with a prior decision of this Honourable Court.

VI. The Reasonableness Test

32In Ryan (supra), Iacobucci J. for a seven (7) judge court said:

50…when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision maker is merely afforded a “margin of error” around what the court believes is the correct result.

51There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable.

55A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra, at para. 56).

VII. Conclusions

33The Arbitrator, in my view, interpreted the Collective Agreement. This is what he was asked to do vis-à-vis the grievance. It cannot be said that the impugned Award fails to pass the test set out by the Supreme Court of Canada in Ryan (supra). In my view, the issues involved, the reasoning of the Award, its remedy and the reasonableness factor are all succinctly summarized in paragraph [48] of the factum of the Respondent/Grievor, with which I agree:

48. The bottom line resulting from the arbitrator’s decision, is that while the Board may defer a promotion pending the resolution of PSA charges, the officer will be entitled to a remedy should he be exonerated at the end of the process. This balancing of interests permits the employer to exercise its management function to ensure that an officer who may be found guilty of misconduct is not promoted, but likewise ensures that an officer who has committed no wrong and is otherwise entitled to be promoted does not suffer a loss. This is a reasonable conclusion based on the management rights clause in the collective agreement requiring the employer to act reasonably with respect to its promotion functions.

VIII. Result

34The application fails and is dismissed.

IX. Costs

35When judgment was reserved, counsel advised the Court that they had agreed that the successful party on this judicial review application should receive fixed costs in the sum of $7,500.00. The Applicant shall, therefore, pay that amount to the Respondents.

O’Driscoll J.

Lane J.

Dunnet J.

Released:

COURT FILE NO.: 149/04

DATE: 20050525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, lane and dunnet jj.