COURT FILE NO.: 436/06

DATE: 20070515

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON and H. SPIEGEL JJ.

B E T W E E N:

TORONTO POLICE SERVICES BOARD

Applicant

• and -

TORONTO POLICE ASSOCIATION

and KEN PETRYSHEN

Respondents

Michael A. Hines, for the Applicant, Toronto Police Services Board

C.M. Mitchell and L. Lawrence, for the Respondent, Toronto Police Association

HEARD at Toronto: April 23, 2007

REASONS FOR JUDGMENT

H. SPIEGEL J.

Nature of the Application

1The Applicant Toronto Police Services Board (the “Board”) brings this application for judicial review of an arbitration award dated June 13, 2006 in which the Arbitrator found that the Grievor, Police Constable Michael Carrington, was entitled to indemnification under the collective agreement for legal costs incurred in defending a criminal charge.

Factual Background

2The Grievor was a uniformed member of the Toronto Police Service (“TPS”) who was subject to a collective agreement between the Toronto Police Services Board and the Respondent, Toronto Police Association (the “TPA”). The Collective Agreement provided that a police constable, who was charged with a criminal offence “because of acts done in the attempted performance in good faith of his/her duties as a police officer” and acquitted, would be indemnified by the Board for his or her legal expenses incurred in the defence of such charge (the “Legal Indemnification clause”).

3The Grievor had stopped a female motorist in the course of his duties, learned that her driver’s licence had been suspended, and allowed her to drive home while he followed in his police cruiser. He entered her house and had a conversation with her.

4Some days later, the woman alleged that the Grievor had extorted sexual favours from her in return for a promise not to issue a ticket. He was charged criminally with breach of trust, but was acquitted after a judge alone trial in the Superior Court of Justice. He was also charged under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) with insubordination, to which he pled guilty and received a loss of two days’ pay.

5When the Grievor sought payment of his legal expenses incurred in defending the charge pursuant to the Legal Indemnification clause of the Collective Agreement, the Board refused the request. It maintained that the events in question were the direct consequence of the Grievor’s failure to perform his duty as prescribed by the TPS Procedures and that this rendered him ineligible for legal indemnification.

6The dispute proceeded to arbitration under the PSA. The Respondent Ken Petryshen (the “Arbitrator”) upheld the grievance and ordered the Board to compensate the Grievor for his legal expenses. The Board applies for judicial review and seeks to have this decision quashed.

The Arbitration Hearing and the Reasons of the Arbitrator

7At the arbitration hearing, the parties did not call oral evidence but instead agreed on the facts and provided the Arbitrator with a number of documents, including a transcript of the Grievor’s sworn testimony at the criminal trial and the reasons for judgment of Justice Nordheimer, the trial judge. The Arbitrator found that in deciding not to call evidence and in relying on the reasons for judgment of Justice Nordheimer, the parties accepted the findings of fact made in the criminal trial. He noted that Justice Nordheimer accepted the evidence of the Grievor and did not accept the evidence of Ms Brown, the complainant in the case.

8Specifically Justice Nordheimer made the following findings of fact:

a) the Grievor stopped the vehicle driven by Ms Brown because the car had an expired licence plate sticker and after running her licence plate he also discovered that her driver’s licence was suspended.

b) following discussion with Ms Brown, the Grievor believed that she was unaware that her licence had been suspended. He allowed her to drive home on the promise that she would not drive again until she cleared up her problem with the licence.

c) the Grievor followed Ms Brown home to her residence in Markham, just outside the boundaries of 42 Division.

d) outside Ms Brown’s house the Grievor returned her documents and began to speak to her about what she had to do before she could drive again. Ms Brown was apparently uncomfortable because there were a number of construction workers in the area and she asked whether they could continue the discussion inside the house.

e) inside Ms Brown’s house the Grievor spoke to her about what she would have to do to reinstate her licence and warned her that if she drove again while her licence was suspended she would face heavy fines, longer suspensions and potential problems regarding insurance. Before leaving the house he made her promise again that she would not drive until the problems with her licence had been cleared.

9The Arbitrator also considered the fact that the Grievor had pleaded guilty to a charge under the PSA resulting from the Grievor’s breach of section 1 of Directive 07-19 of the Policy and Procedure Manual of the TPS (the “Directive”), which states that when investigating a person operating a vehicle who is believed to have a suspended licence, the police officer shall “ensure the vehicle is removed by a licenced driver or towed in accordance with procedure 07-11, if required”. He observed that although there were some other aspects of the Grievor’s conduct referred to in the PSA charge, the central feature of the charge was that he permitted Ms Brown, the driver whose licence was under suspension, to drive her vehicle home. He noted that the hearing officer had imposed a penalty of loss of two days’ pay on the Grievor for this infraction.

10The Board argued before the Arbitrator that the Grievor was not entitled to indemnification for his legal defence costs because by permitting her to drive home, he knowingly breached a mandatory directive and in so doing was a party to an offence under the Highway Traffic Act, namely driving while under suspension. The Board submitted that the Grievor’s conduct in not following a mandatory procedure is a clear indication that he is not “attempting to perform his duties in good faith” within the meaning of the Legal Indemnification clause of the collective agreement.

11Counsel for the Board contended that the good faith standard could be met only when a police officer is attempting to follow policies and directives. Here, the Grievor deliberately breached the Directive. Counsel for the Board submitted that everything that happened after the Grievor’s failure to follow the mandatory Directive, and more particularly everything that occurred in Ms Brown’s home, flowed from his failure to perform his duties in good faith.

12The Arbitrator examined the conditions that must be met to entitle an officer to compensation under the Legal Indemnification clause, the relevant words of which he found were as follows “ a member charged with but found not guilty of a criminal ... offence, because of acts done in the attempted performance in good faith of his/her duties as a police officer shall be indemnified for the reasonable and necessary costs ... incurred by the member in the defence of such charges” (emphasis Arbitrator’s) . He noted that there was no dispute that the Grievor was found not guilty of a criminal offence and that the legal costs were necessary and reasonable. He found that the focus for assessing whether an officer was attempting to perform duties in good faith must be on those actions of the officer which gave rise to the criminal charge. He examined the admitted facts of the case and determined that the relevant actions giving rise to the criminal charge took place while the Grievor was inside Ms Brown’s home. Relying on the Grievor’s evidence at trial and the findings of the trial judge, he found that the Grievor’s actions in Ms Brown’s home could best be characterized as the “investigation of HTA offences with a citizen” and “efforts to ensure that the citizen did not continue to violate the HTA in the future”. He concluded therefore that while engaging in this conduct, the Grievor was attempting to perform his duties as a police officer in good faith.

13The Arbitrator specifically rejected the Board’s submission that the events that occurred at Ms Brown’s home all flowed from the Grievor’s failure to follow the Directive and that this disentitled him to indemnification. He noted that it was conceivable that the Grievor could have continued his investigation at Ms Brown’s residence even if the Directive had been followed. Moreover he found that the Grievor’s actions in failing to follow the Directive were not the basis for the criminal charge, and therefore it could not be said that the charges arose because the Grievor let Ms Brown drive home. He concluded therefore that the Grievor’s conviction under the PSA for insubordination was irrelevant for the purpose of determining his entitlement for legal indemnification.

14In the specific alternative, the Arbitrator found that if the Grievor’s failure to follow the Directive were relevant, the result would be the same. He concluded, based on the Grievor’s evidence at trial which was accepted by the trial Judge, that from the time the Grievor stopped Ms Brown’s vehicle to the time he left her home he was engaged in the investigation of HTA offences.

15The Arbitrator, relying on two previous arbitral decisions dealing with a similar issue, found that “a breach of a procedural rule does not automatically lead to the conclusion that a police officer was not attempting to perform his police duties in good faith”. He also noted that these decisions support a broad definition of the term “police duties”. He concluded therefore that notwithstanding his breach of the Directive the Grievor was attempting to perform his police duties in good faith during his investigation of Ms Brown on April 20, 2001.

The Position of the Applicant

16Counsel for the Applicant submitted that the collective agreement provided indemnification only where the police officer is charged, “because of acts done” in the performance of police duties. He contended that this language only contemplates situations where the police officer takes an affirmative step toward the performance of a police duty (such as assaulting a suspect while effecting arrest) and where charges arise because of that very action. In the case at bar the criminal charge arose out of an allegation made by the complainant. Therefore it is submitted that the Grievor was charged because of “the allegation”. The Grievor denied the allegation. He denied that he had “done” the “act” alleged. Therefore the Grievor cannot bring himself within the ambit of the language of the Legal Indemnification clause.

17Counsel for the Applicant contends that the Arbitrator took a narrow and literalistic approach to the Legal Indemnification clause which allowed him to focus narrowly upon the events which took place in the house and to find that the Grievor’s earlier act of insubordination was irrelevant. It is submitted that the Arbitrator did not and could not identify any act actually done in the home by the Grievor which gave rise to the criminal charge and that he purported to solve this problem by adopting a view of police duties which was broad enough to embrace the type of conversation which the Grievor conducted with the complainant in the home. Counsel submits that the approach taken by the Arbitrator was “at one moment narrow and literalistic, at the next moment broad and conceptual”, and was therefore illogical and unreasonable.

18Counsel for the Applicant further submits the Arbitrator erred in failing to find that the Grievor, by violating the Directive and a TPS rule that he not leave his assigned zone without permission, took himself outside the attempted performance of his police duties and that it was the violation of those duties that led to the events giving rise to the charge. He submits that the Grievor, in following Ms Brown home and entering her house, was in essence on a frolic of his own and that the Legal Indemnification clause was not designed to protect an officer in such circumstances. He further submits that the Directive was an important rule of the TPS that addressed a substantial public safety issue and that the Arbitrator erred in characterizing the Directive as a “procedural rule”.

Standard of Review

19Counsel for the Applicant submitted that the proper standard of review in this case was reasonableness simpliciter. He candidly acknowledged that this submission was contrary to Durham Regional Police Association v. Regional Municipality of Durham Police Services Board¹. He also submitted that the standard of patent unreasonableness that applies to arbitrators interpreting a collective agreement under the Labour Relations Act does not apply to arbitrations under the PSA (see Lakeport Brewing Corp. v. Teamsters Local Union 938)². He contended however those cases should be reconsidered in the light of the decision of the Supreme Court of Canada in the Voice Construction case³.

Decision

20On our view of the matter it is not necessary to decide whether the Applicant’s submission with respect to the appropriate standard of review is correct.

21Even utilizing a standard of review of reasonableness, notwithstanding the very capable and forceful argument of counsel for the Applicant, we are not persuaded that the Arbitrator’s award was unreasonable. We reject the contention that the Arbitrator’s decision to focus on the actions of the Grievor at the home of Ms Brown was unreasonable and that having done so, he erred in failing to find that the acts done by the Grievor in the home were not the basis of the criminal offence charged. It was reasonable for the Arbitrator to find that the requirement of the Legal Indemnification clause is met if the actions of the police officer which give rise to the criminal charge are found to have been done while the officer was attempting to perform his duties in good faith.

22With respect to the Applicant’s contention that the Grievor’s violation of the Directive and the TPS rule made it impossible for the Grievor to establish that he was performing his duty within the meaning of the Legal Indemnification clause, it was reasonable for the Arbitrator to find that a breach of a rule or directive does not automatically lead to the conclusion that the police officer was not attempting to perform his police duty in good faith. The Arbitrator on the facts of this case found that the breach did not lead to that conclusion and that finding is reasonable. Nor do we accept the Applicant’s submission that in characterizing the Directive as a procedural rule the Arbitrator did not recognize the substantial public safety issues involved in the Directive. We accept the Respondent’s submission that the Arbitrator used the word “procedural” merely in the sense of the Directive being a rule of police procedure.

Disposition

23The application is dismissed. Counsel agreed that the costs should follow the event and be fixed in the amount of $7500. We therefore award the Respondent Toronto Police Association the costs of the application fixed in the amount of $7500.

H. Spiegel J.

Lederman J.

Swinton J.

Released: May 15, 2007

COURT FILE NO.: 436/06

DATE: 20070515

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lederman, swinton and h. spiegel jj.

Footnotes

1. 12006 40787 (Ont. Div. Ct.)
2. 2(2005), 2005 29339 (ON CA), 258 D.L.R. (4th) 10 (C.A.) at para.35)
3. 3Voice Construction Limited v. Construction & General Workers’ Union, Local 92 (2004), 238 D.L.R. (4th ) 217.