COURT FILE NO.: 196/04

DATE: 20050608

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, CAPUTO AND sWINTON JJ.

B E T W E E N:

HAMILTON POLICE ASSOCIATION

Applicant

• and -

HAMILTON POLICE SERVICES BOARD and PETER BARTON

Respondents

David A. Wright, for the Applicant

Brian Duxbury, for the Respondent Board

HEARD at Toronto: March 14, 2005

SWINTON J.:

1The Hamilton Police Association (“the Association”) has brought an application for judicial review of an arbitration award dated March 2, 2004, which dismissed the Association’s grievance. The issue in this application is whether the arbitrator acted incorrectly or unreasonably in concluding that the Hamilton Police Services Board (“the employer”) could accommodate uniformed officers who were disabled by placing them into jobs in the Communications Branch covered by the civilian collective agreement on an ongoing basis.

Factual Background

2Pursuant to Part VIII of the Police Services Act, R.S.O. 1990, c. P.15 (“the Act”), the Association and the employer are parties to two collective agreements. The Active Police Personnel Collective Agreement (the “uniform agreement”) applies to police officers below the rank of Inspector. The Civilian Personnel Collective Agreement (the “civilian agreement”) applies to members in a list of job classifications set out in the agreement. Among these are the jobs in the Communications Branch, which include Communications Call Taker, Communications Operator, Communications Systems Admin., Communications Supervisor, and Communications Technician. Communications is one of four main pools of civilian employees. The jobs in this branch are generally the best paid in the civilian agreement and are seen as promotion opportunities.

3Article 14 of the civilian agreement sets out a detailed posting procedure for vacancies in jobs covered by the agreement. The senior applicant is to be awarded a full-time vacancy provided that he or she has the qualifications to perform the work required. According to the evidence, there are 52 civilian positions.

4Section 47 of the Act requires the employer to accommodate the needs of a police officer who becomes disabled. It reads:

47(1) Subject to subsection (2), if a member of a municipal police force becomes mentally or physically disabled and as a result is incapable of performing the essential duties of the position, the board shall accommodate his or her needs in accordance with the Human Rights Code.

(2) The board may discharge the member, or retire him or her if entitled to retire, if, after holding a hearing at which the evidence of two legally qualified medical practitioners is received, the board,

(a) determines, on the basis of the evidence, that the member is mentally or physically disabled and as a result incapable of performing the essential duties of the position, and what duties the member is capable of performing; and

(b) concludes that the member’s needs cannot be accommodated without undue hardship on the board….

5The grievance which led to the arbitration award under review arose after the employer transferred some officers covered by the uniform agreement into vacant positions in the Communications Branch covered by the civilian agreement and established a policy of placing four to eight uniform officers there on an ongoing basis in order to accommodate their disabilities.

6Prior to these placements, the Association and the employer had engaged in discussions about how to create cost savings in order to put more officers on the street. In this context, the Association would have agreed to a policy of allowing eight uniform officers to move into Communications if management agreed to have them used on “over strength” for long term illnesses and job shares. The Chief did not accept this proposal.

7Instead, the Deputy Chief of Police asked the employer’s Coordinator of Health and Safety, Gary Goguen, to come up with names of uniform officers needing accommodation who could work in the Communications Branch. The Deputy Chief then chose the officers who would be assigned there in consultation with Mr. Goguen. According to the evidence, the officers went mostly unwillingly.

8All of the transferred officers had been accommodated in the uniform unit prior to their transfers. According to the evidence of Mr. Goguen, the placements did not arise as a result of the exploration of accommodation needs of particular officers, nor was the normal process for accommodating officers followed. None of the employer witnesses testified about other accommodation options that they had explored for these particular officers before placing them in Communications, nor about any undue hardship that would be caused if they were left in the uniform positions in which they were being accommodated. The employer did not discuss with the Association any concerns about its ability to accommodate the officers who were transferred or any other disabled officers.

9Mr. Goguen gave evidence that the employer was currently in a position to accommodate all officers in positions within the uniform bargaining unit, although it was a challenge to find suitable accommodation. He stated that it was difficult to say whether the Service was at the point of “saturation”.

10Deputy Chief Marlor testified that based on his assessment, the Service was “near” the point of “saturation”, and that accommodation needs were growing, while Rosemary Auld, Human Resources Manager, gave the opinion that there was no “breathing room” left in the Service to accommodate.

11The Association then filed a group and policy grievance under the civilian agreement, because the employer had failed to post vacancies in Communications in accordance with Article 14. In his reply denying the grievance dated June 20, 2003, the Chief of Police stated that the requirements for accommodation of officers and “our fiscal constraints” required some restructuring in Communications.

The Arbitration Award

12The arbitrator described his decision as a “broad, policy based one looking at the general issue of whether this employer can transfer people covered by one collective agreement into vacant positions covered by another” (at pp. 2-3). After reviewing the evidence, he summarized his view of the jurisprudence:

I was provided with helpful case briefs by both parties. Starting with Central Okanagan School District No. 23 v. Renaud (1992), 1992 7700 (ON CA), 94 DLR (4th) 577, they follow the jurisprudence to today. I take from them the following propositions:

1. Both management and unions have a statutory obligation to attempt to accommodate disabled workers.

2. This must be done unless to do so would cause undue hardship to the employer.

3. The process must involve a creative search for a position. This may involve re-bundling duties within a job classification, job sharing, or even movement of non-disabled workers resulting in their displacement.

4. Management may be required to consider positions outside the bargaining unit if unable to accommodate without undue hardship within it. This may allow it to look for a position in another bargaining unit.

5. This position may be used by management for a disabled person unless to do so will cause more than a minor inconvenience in the other unit. An actual substantial interference with some important bargaining unit rights is required before management will be told to go no farther in its attempts.

6. Morale of all members of the bargaining unit, or in this case, both bargaining units, is a relevant factor.

7. The wishes of the person needing accommodation are relevant but not determinative. It may be that they will have to accept a less attractive position to avoid going out the door.

13The arbitrator found that there were differences in the situation of a police force that make the general jurisprudence on accommodation of disability less applicable, holding (at p. 10):

One of these is the public perception of the importance of a police force able to respond to a crisis. Members of the public probably do not want to view visibly disabled officers in positions in which force may be required.

14He then went on to say (at pp. 10-11):

I am satisfied that, because of morale of able officers, career development needs, limited possibilities for re-bundling, management use of new hires, the need for meaningful work, the constant requirement that, even in desk jobs or in community contact jobs other than patrol for use of force capability, the Board has gone as far as it can to accommodate within the PO unit. I am concerned that almost half of the people not in contact with the street are in Projects. These are fine for short term but inadequate for long term accommodation. As far as Authorized jobs in the PO agreement is concerned, I am satisfied that many of them are not suitable for accommodation.

I agree that there may still be a few positions in the PO agreement available for disabled officers, but do not think that the Board must always operate at a crisis level in accommodation. There is always movement within the work force and the picture changes daily. A very small amount of ‘wiggle room’ would seem to be wise. Accommodation of a particular officer still requires management to address these few PO positions specifically, with input from the Association.

15He then went on to say,

Having decided that the Board could look outside the PO agreement, the next issue is whether or not it has made too significant an impact on the civilian agreement.

He then considered that eight of 52 positions would be lost in the civilian unit and promotion opportunities would be affected. He also agreed that morale among civilian employees would be adversely affected, although there was no evidence of serious additional morale problems in the Radio Room. He concluded that he was not satisfied that the actions of the employer had caused a “substantial interference” with rights in the civilian agreement, and the grievance was dismissed.

The Issues

16There are two issues to be decided: whether the appropriate standard of review is reasonableness or correctness, and whether the arbitrator’s decision was incorrect or unreasonable, depending on the standard to be applied.

Analysis

The Standard of Review

17The Association argued that the appropriate standard of review is correctness, while the employer argued that the standard is reasonableness.

18The standard of review is determined by applying the pragmatic and functional analysis of the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia (2003), 2003 SCC 19, 223 D.L.R. (4th) 599 at 610-23. Four contextual factors are to be considered: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purpose of the legislation and the provision in particular; and the nature of the question - law, fact or mixed fact and law.

19In this case, s. 128 of the Act provides that “Agreements, decision and awards made under this part bind the board and members of the police force.” This is the weakest type of privative clause and connotes very limited deference.

20With respect to the issue of expertise, the Supreme Court of Canada has held that the standard of review of labour arbitrators’ decisions interpreting and applying collective agreements is either reasonableness simpliciter (Voice Construction Ltd. v. Construction General Workers’ Union, Local 92, 2004 SCC 23, [2004] S.C.J. No. 2) or patent unreasonableness (Newfoundland Association of Public Employees v. The Queen in Right of Newfoundland (1996), 1996 190 (SCC), 134 D.L.R. (4th) 1 (“NAPE”) at para. 30). However, an arbitrator’s decision in relation to questions of general law and the interpretation of human rights legislation is subject to a standard of correctness, given that the arbitrator has no greater expertise in this regard than the courts (NAPE, supra at para. 14).

21With respect to the purpose of the legislation, the Police Services Act sets out a statutory regime for a labour arbitration commission to deal with police disputes, including the interpretation of collective agreements (ss. 114-131). However, in applying the duty to accommodate in a particular workplace, an arbitrator is resolving a dispute between the parties, and he or she is not required to consider broad policy issues. This suggests some deference, but not at the highest level (Voice Construction, supra, at para. 28).

22Finally, while the arbitrator here was required to apply the legal principles governing the duty to accommodate, he had to do so based on the facts of the case before him. Decisions about undue hardship and the degree of interference with the rights of employees in the civilian unit must turn on an assessment of the evidence. Therefore, the decision under review is one of mixed fact and law and warrants some deference.

23Ultimately, the question of the standard of review in this case turns on the issue that the arbitrator was determining. As noted by the Supreme Court of Canada in Voice Construction, supra (at para. 19), “the same standard of review will not necessarily apply to every ruling made by an arbitrator during the course of an arbitration”. As in the NAPE case above, the arbitrator was required to be correct in his legal interpretation of the duty to accommodate, but his decision applying that duty to the facts of the case warrants some deference and is subject to review on a standard of reasonableness.

The Review of the Decision

24The Human Rights Code, R.S.O. 1990, c. H.19 prohibits discrimination in employment on the basis of, inter alia, disability. If a decision is prima facie discriminatory on the basis of disability, the employer must demonstrate that the discrimination is justified as a bona fide occupational requirement, which includes showing that the needs of the individual can not be accommodated without undue hardship to the employer (Human Rights Code, ss. 5, 17; British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (1999), 1999 652 (SCC), 176 D.L.R. (4th) 1 (S.C.C.) (“Meiorin”) at para. 54).

25Under the Code and the Police Services Act, an employee of a police services board can only be dismissed from employment as a result of a disability that makes the employee incapable of fulfilling the essential duties of the position if the decision maker is satisfied that “the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any” (Code, s. 17; Act, s. 47).

26The leading case on the duty to accommodate in the unionized workplace remains the decision of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud (1992), 1992 7700 (ON CA), 94 D.L.R. (4th) 577. There, the Supreme Court of Canada made it clear that a union has a duty to accommodate, but only if it is a party to discrimination. This can occur in one of two ways: first, the union may participate in the formulation of a workplace rule that has a discriminatory effect on a complainant; and second, the union may become a party to the discrimination by impeding the employer’s reasonable efforts to accommodate (at pp. 590-591). The Court then went on to say that the application of the union’s duty to accommodate will vary, depending on the way in which the duty arises (at pp. 591-2):

While the general definition of the duty to accommodate is the same irrespective of which of the two ways it arises, the application of the duty will vary. A union which is liable as a co-discriminator with the employer shares a joint responsibility with the employer to seek to accommodate the employee. If nothing is done both are equally liable. Nevertheless, account must be taken of the fact that ordinarily the employer, who has charge of the workplace, will be in the better position to formulate accommodations. The employer, therefore, can be expected to initiate the process. The employer must take steps that are reasonable. If the proposed measure is one that is least expensive or disruptive to the employer but disruptive of the collective agreement or otherwise affects the rights of other employees, then this will usually result in a finding that the employer failed to take reasonable measures to accommodate and the union did not act unreasonably in refusing to consent. This assumes, of course, that other reasonable accommodating measures were available which either did not involve the collective agreement or were less disruptive of it. In such circumstances, the union may not be absolved of its duty if it failed to put forward alternative measures that were available which are less onerous from its point of view. I would not be prepared to say that in every instance the employer must exhaust all the avenues which do not involve the collective agreement before involving the union. A proposed measure may be the most sensible one notwithstanding that it requires a change to the agreement and others do not. This does not mean that the union's duty to accommodate does not arise until it is called on by the employer. When it is a co-discriminator with the employer, it shares the obligation to take reasonable steps to remove or alleviate the source of the discriminatory effect.

In the second type of situation in which the union is not initially a contributing cause of the discrimination but by failing to co-operate impedes a reasonable accommodation, the employer must canvass other methods of accommodation before the union can be expected to assist in finding or implementing a solution. The union's duty arises only when its involvement is required to make accommodation possible and no other reasonable alternative resolution of the matter has been found or could reasonably have been found.

27The Supreme Court in Renaud also explained the extent of the union’s duty to accommodate (at p. 591):

Any significant interference with the rights of others will ordinarily justify the union in refusing to consent to a measure which could have this effect.

28The Supreme Court discussed the duty to accommodate more recently in Meiorin, supra at paras. 62-66. There, the Court emphasized the importance of considering the factual context in determining whether an individual claimant and others like him or her can be accommodated without undue hardship (at para. 63). It is evident from that case that the issue of accommodation requires the decision maker to focus on the particular circumstances in which an individual seeks accommodation. For example, at para. 64, McLachlin C.J.C. stated:

The skills, capabilities and potential contributions of the individual claimant and others like him or her must be respected as much as possible. Employers, courts and tribunals should be innovative yet practical when considering how this may best be done in particular circumstances.

29In this case, we are dealing with the second type of situation discussed in Renaud, supra, where the Association has not caused the discrimination against the disabled officers. However, the employer seeks to accommodate uniform officers in jobs outside their bargaining unit and without posting the vacancies, as required by the civilian agreement. The proposed policy will affect the seniority rights of civilian employees, who would otherwise be able to apply for those positions. According to Renaud, the employer must first canvass other methods of accommodation that do not affect collective agreement rights. The union’s duty to accommodate only arises if its co-operation is necessary in order to make accommodation possible, and no other reasonable alternative has been found or could reasonably have been found that would accommodate the employee (pp. 590, 591-92). Finally, the Court made it clear that accommodation is a “multi-party inquiry” involving the employer, the union and the individual seeking accommodation (at p. 592).

30The arbitrator does not appear to have appreciated the nature of the inquiry on which he was required to embark. He stated that he had heard a fair amount of information about individual officers, and he understood that most accommodation cases centre upon individuals. However, he saw his role as a broad, policy based decision, in which he was to look at the general issue whether the employer could transfer uniform officers from one bargaining unit to another in order to accommodate.

31In my view, the arbitrator misunderstood his role. Moreover, his reasoning is inconsistent with established human rights principles governing the duty to accommodate. Even though he was determining a group and policy grievance, the grievance was launched because of particular actions taken by the employer that the Association claimed to be improper and contrary to the provisions of the civilian agreement. Therefore, the first issue before the arbitrator was whether the individual officers who were moved into the Communications Branch could reasonably have been accommodated within the uniform unit. The issue of the Association’s duty to accommodate arises only if there was no reasonable alternative to the transfer of each of these officers into the civilian unit. Then the issue would become whether there was a significant interference with the rights and interests of other employees if the officers were transferred into these positions.

32In Welland County General Hospital v. Service Employees International Union Local 204, [2000] O.L.A.A. No. 319, Arbitrator Knopf determined a policy grievance involving the transfer of a disabled employee into a position without following the posting provisions in the collective agreement. She held that the employer and the union should determine whether there were any possible accommodations available that were less disruptive of the collective agreement seniority provisions. While she, too, was determining a policy grievance, she examined the circumstances of the particular individual who needed accommodation, as well as the proposed accommodation and the impact on other employees.

33Similarly, in this case, the first issue that the arbitrator should have considered was whether the individual officers who were moved into the Communications Branch could reasonably have been accommodated within the uniform unit without undue hardship. The duty to accommodate a disabled worker requires a consideration of the particular capabilities and needs of the individual who requires accommodation and the situation within the particular workplace, as stated in Meiorin, supra. At the time of the transfers of the uniform officers, each of the officers had already been accommodated in the uniform unit. There was no evidence that these particular officers could not continue to be accommodated in the uniform unit, let alone that there would be undue hardship to the employer if they continued to work there.

34Moreover, the arbitrator found as a fact that there may “still be a few positions in the PO agreement available for disabled officers.” As well, there was evidence from Mr. Goguen, the Coordinator for Health and Safety, that the Police Service could currently accommodate all uniform officers within their own bargaining unit.

35There is no evidence here that the employer followed its procedural obligation to work with the affected officers and their Association to find a mutually acceptable accommodation. Moreover, there was no evidence to demonstrate that transferring these officers from police officer positions was reasonably necessary to accomplish any legitimate work-related purpose. Therefore, the arbitrator incorrectly applied the law as set out in Renaud, when he failed to consider whether these individual officers could have been accommodated in the uniform unit without undue hardship.

36As well, the employer chose to transfer the officers into positions in the civilian unit without posting the vacancies, and thus affected the rights of other employees in that unit. Before seeking an accommodation that affected collective agreement rights, the employer had an obligation to show that there were no other reasonable alternatives to accommodate these officers within their own collective agreement. In fact, such alternatives had been found and implemented for each of the officers.

37Finally, the employer established a policy that it would violate the civilian agreement on an ongoing basis by placing four to eight uniform officers in vacancies in the Communications Branch without posting the vacancies, as required by the collective agreement. The arbitrator’s determination that the employer could establish an ongoing policy to set aside vacant positions in the civilian unit was both inconsistent with the approach set out in Renaud and unreasonable, as he failed to consider the individualized nature of the duty to accommodate.

38Accommodation must be considered on a case by case basis. The duty to accommodate under the Code does not permit the employer to unilaterally hold positions for disabled officers in another bargaining unit on an ongoing basis. While the Association concedes that there may be circumstances in which an individual officer must be accommodated by placement in a position covered by the civilian agreement, it correctly argues that its duty to accommodate such an officer turns on a consideration of demonstrated need in individual circumstances.

39In my view, the arbitrator did not properly apply the legal principles governing the duty to accommodate, and therefore, he reached a decision that was unreasonable on the facts of this case. He also erred in approaching his task as a broad based policy determination. In fact, he was asked to determine a group and policy grievance arising from a particular fact situation, and therefore, his starting point should have been to ask whether the transfer of the particular officers to Communications was the only reasonable alternative available to the employer in order to accommodate them without undue hardship.

Conclusion

40Given that he erred in law and reached an unreasonable decision, the application for judicial review is granted. The arbitrator’s decision is quashed, and the grievance is referred to a different arbitrator appointed in accordance with s. 124(3) of the Act. While the Association seeks an order that the affected police officers be returned to uniform positions and that civilian members affected by the transfers be compensated by the employer, such relief is not appropriate. The grievance was a group and policy grievance brought by the Association under the civilian agreement. There was no evidence before the arbitrator of any individual in the civilian unit who has suffered because of the transfers. Moreover, the arbitrator was not seized with a grievance from any officer seeking to be returned to the uniform unit.

41The parties agreed at the end of the oral hearing that the successful party should be awarded $5,000.00 in costs. Therefore, costs are fixed at $5,000.00 payable to the Association.

Swinton J.

O’Driscoll J.

Caputo J.