Hall v. Chief of Police, Ottawa Police Service [Indexed as: Hall v. Ottawa Police Service]

93 O.R. (3d) 675

Ontario Superior Court of Justice,

Divisional Court,

Cunningham A.C.J.S.C.J., Cusinato and Valin JJ.

December 10, 2008

Police -- Discipline -- Penalty -- Police officer pleading guilty to eight disciplinary offences arising out of his purchase of cocaine while on duty and taking of cocaine from suspects and from police depository box -- Ontario Civilian Commission on Police Services upholding decision of hearing officer terminating officer -- Reasonableness standard applying to Commission's decision concerning penalty even when issue of accommodation of officer's cocaine addiction was engaged -- Commission's decision upholding hearing officer's finding that accommodation would cause undue hardship to employer reasonable.

H, a police officer, pleaded guilty to eight disciplinary offences under the Code of Conduct set out in the Police Services Act, R.S.O. 1990, c. P.15. The charges related to his purchase of cocaine while on duty and to taking cocaine from suspects and a police depository box. The hearing officer terminated H, and that decision was upheld by the Ontario Civilian Commission on Police Services. H appealed, arguing that his cocaine addiction was a disability and that the Ottawa Police Service had a duty to accommodate that disability up to the point of undue hardship pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, the provisions of which are incorporated into the Police Services Act.

Held, the appeal should be dismissed.

The Commission was required to be correct in its interpretation of the duty to accommodate as a legal standard. However, the reasonableness standard applied to the Commission's decision concerning penalty, even when the issue of reasonable accommodation was engaged. The Commission and the hearing officer correctly appreciated that dismissing H due to the misconduct caused by his cocaine addiction would be prima facie discriminatory on the disability issue and that his dismissal would only be justified if the OPS established that he could not be accommodated without the OPS suffering undue hardship. They approached the legal analysis of reasonable accommodation to the point of undue hardship correctly. The Commission's decision to uphold the hearing officer's order on penalty was reasonable in the context of a duty to accommodate. The Commission reasonably distinguished a case on which H relied, in which the Commission permitted a cocaine-addicted police officer to continue in his employment on the basis that that officer pleaded guilty to two, and not eight, disciplinary offences and never stole drugs or purchased drugs while on duty. It was open to the Commission to conclude that it was reasonable for the hearing officer to find that accommodation in H's case would cause undue hardship to the OPS.

APPEAL from a decision of the Ontario Civilian Commission on Police Services upholding a decision to terminate the appellant.

Cases referred to Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65; Hamilton Police Assn. v. Hamilton (City) Police Services Board, 2005 20788 (ON SCDC), [2005] O.J. No. 2357, 200 O.A.C. 7, [2005] CLLC Â230-025, 139 A.C.W.S. (3d) 1016, 141 L.A.C. (4th) 26 (Div. Ct.), apld Toronto (City) Police Service v. Kelly, 2006 14403 (ON SCDC), [2006] O.J. No. 1758, 209 O.A.C. 269, 148 A.C.W.S. (3d) 146 (Div. Ct.), consd [page676] Other cases referred to British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, 176 D.L.R. (4th) 1, 244 N.R. 145, [1999] 10 W.W.R. 1, J.E. 99-1807, 127 B.C.A.C. 161, 66 B.C.L.R. (3d) 253, 46 C.C.E.L. (2d) 206, 99 CLLC Â230-028, 68 C.R.R. (2d) 1, 90 A.C.W.S. (3d) 764; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, [2007] S.C.J. No. 15, 2007 SCC 15, 279 D.L.R. (4th) 1, 360 N.R. 1, J.E. 2007-670, 59 Admin. L.R. (4th) 1, 155 A.C.W.S. (3d) 7, EYB 2006-116801, 59 C.H.R.R. D/276; Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 2301, 139 A.C.W.S. (3d) 1096 (Div. Ct.); Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20, 223 D.L.R. (4th) 577, 302 N.R. 1, J.E. 2003-713, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 121 A.C.W.S. (3d) 172; Ontario (Provincial Police) v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681, [2004] O.J. No. 4248, 191 O.A.C. 3, 134 A.C.W.S. (3d) 711 (C.A.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 562]; Toronto (City) Police Service v. Blowes-Aybar, 2004 34451 (ON SCDC), [2004] O.J. No. 1655, 185 O.A.C. 352, 130 A.C.W.S. (3d) 859 (Div. Ct.) Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19 Police Services Act, R.S.O. 1990, c. P.15, ss. 2, 47, 70 [as am.], (6) [as am.], 71 [as am.] Rules and regulations referred to O. Reg. 123/98 [pursuant to R.S.O. 1990, c. P.15], Sch. Code of Conduct [as am.], s. 2(1)(a), (c), (f)

Kenneth Edgar Jull, for applicant. Robert Edward Houston, Q.C., for respondent.

The judgment of the court was delivered by

CUNNINGHAM A.C.J.S.C.J.: --

Overview

[1] Kevin Hall ("Hall") appeals the decision of the Ontario Civilian Commission on Police Services ("OCCPS" or "Commission") dated December 5, 2007. At a hearing held April 26, 2007, OCCPS sat as an appellate tribunal to review the sentencing order of hearing officer Kelly to terminate Hall. The order of hearing officer Kelly followed a discipline hearing, and the order required Hall to resign from the Ottawa Police Service ("OPS") within seven days or be summarily dismissed. The OCCPS dismissed Hall's appeal.

[2] Before the hearing officer , Hall pleaded guilty to eight disciplinary offences under the Code of Conduct set out in the [page677] Police Services Act, R.S.O. 1990, c. P.15 ("PSA"). The charges related to Hall's purchase of cocaine while on duty, as well as taking cocaine from suspects and a police depository box. Some of the incidents occurred after Hall had received drug counselling. The cocaine was at all times taken for Hall's personal use and there was no evidence it was ever used while he was on duty.

[3] In this appeal to the Divisional Court, Hall argues that his cocaine addiction is a disability and that the OPS had a duty to accommodate that disability up to the point of undue hardship pursuant to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, the provisions of which are incorporated into the PSA under s. 47. Hall argues that the OCCPS made errors of law in its consideration of the duty to accommodate. In particular, Hall relies upon Toronto (City) Police Service v. Kelly, 2006 14403 (ON SCDC), [2006] O.J. No. 1758, 209 O.A.C. 269 (Div. Ct.) ("Kelly").

[4] In Kelly, the OCCPS ruled that a particular police officer with a cocaine addiction could continue his employment if he followed a strict set of conditions. The Divisional Court upheld the OCCPS decision as reasonable.

[5] Hall therefore asks that the OCCPS decision be set aside and a judgment granted permitting Hall to be demoted to fourth- class constable with conditions.

Issues

[6] This appeal raises three issues: (1) What is the appropriate standard of review for this court to apply to an OCCPS decision, where the OCCPS is reviewing a hearing officer's decision on penalty that raises the issue of the duty to accommodate a disability? (2) Did the decisions of the OCCPS and the hearing officer correctly appreciate the nature of the duty to accommodate as a principle of Law? (3) Was the decision of the OCCPS to uphold the hearing officer's order with respect to the penalty reasonable in a situation where the duty to accommodate was at issue?

Divisional Court's Jurisdiction

[7] Hall appealed the decision of the hearing officer to the OCCPS pursuant to s. 70 of the PSA. Under s. 70(6) of the PSA, the OCCPS may "confirm, vary or revoke the decision being appealed or may substitute its own decision for that of the chief of police or board, as the case may be". [page678]

[8] The Divisional Court has jurisdiction to hear Hall's appeal of the OCCPS decision pursuant to s. 71 of the PSA, which reads:

71(1) A party to a hearing held by the Commission under subsection 65(9) or section 70 may appeal the Commission's decision to the Divisional Court within 30 days of receiving notice of the Commission's decision.

(2) An appeal may be made on a question that is not a question of fact alone, from a penalty imposed or from any other action taken, or all of them.

(3) The Solicitor General is entitled to be heard, by counsel or otherwise, on the argument of the appeal.

Background Facts

(a) General background

[9] Hall was born on May 5, 1963. He began using marijuana at the age of 15 and continued regular use until 1996, at the age of 33. In 1996, he decided to become a police officer. As a result of this decision, he stopped using marijuana and attended treatment for marijuana and alcohol use at the Out- Patient Adult Addiction Program with Rideau Wood Addiction and Family Services.

[10] Hall then applied and was hired as a police officer by the OPS in 1999. As part of the application to the OPS, he completed a questionnaire in which he falsely stated he had only used marijuana over a two-week period in 1980. He further stated, falsely, that he stopped using illegal drugs in 1980.

[11] In 2001, Hall's wife lost her job and was unsuccessful in finding new employment. He had an affair, which led to serious matrimonial problems. In 2001, Hall began to use marijuana to escape from his personal problems. He continued to use marijuana in increasing amounts between 2001 and October 2004. Hall's addiction to cocaine did not start until November 2004, when he tried it for the first time.

(b) The disciplinary offences

[12] On December 15, 2005, Hall was charged under the PSA with a number of offences relating to his possession and use of cocaine. On September 26, 2007, Hall entered a guilty plea, on an agreed statement of facts, to eight of the nine charges contained in the Notice of Disciplinary Hearing.

[13] Hall was found guilty of the following offences contrary to O. Reg. 123/98, Schedule, Code of Conduct, which constitutes misconduct pursuant to the PSA: five counts of discreditable conduct under s. 2(1)(a)(xi); two counts of corrupt practice under s. 2(1)(f)(ii); and one count of neglect of duty under s. 2(1)(c)(v). [page679] Hall was not charged with any criminal offences in relation to these acts of misconduct.

[14] The factual basis for the findings of misconduct is outlined in the admissions contained in the Statement of Agreed Facts as follows: (i) November 2004 -- Constable Hall seized cocaine during a traffic stop, and kept a portion for personal use. (ii) Between November 2004 and October 2005 -- On more than one occasion, Constable Hall purchased cocaine for personal use. These purchases took place typically while Contable Hall was off-duty, but also ocurred when he was working as a plainclothes officer. (iii) August 5, 2005 -- After a court appearance for a drug case, Constable Hall removed some cocaine from a Health Canada drug exhibit envelope for personal use, prior to returning it to the property room for storage. (iv) September 30, 2005 -- Constable Hall seized cocaine at a traffic stop. He did not file a police report, and kept the cocaine for his personal use. (v) Between September 1 and October 1, 2005 -- Constable Hall removed two bags containing cocaine from the drug depository box located at 245 Greenbank Road in order to remove a small quantity for personal use. The bags were then returned to the drug depositiory box. These bags had been submitted for destruction.

[15] The Statement of Agreed Facts also stated that Hall had never used cocaine or marijuana while on duty, nor had he ever been under the influence of those substances while on duty. Further, it stated that prior to the allegations of misconduct, Hall had been considered a valued police officer, with no formal discipline on his record.

(c) Hall's efforts at rehabilitation

[16] It is submitted on behalf of Hall that he became addicted to crack cocaine after he tried it for the first time on November 9, 2004, when he seized the drug during a routine traffic stop. This assertion is supported by the report of his addiction counsellor, Bruce Johnston. The assertion is also supported by the medical report of Dr. Louis Morissette, who began treating Hall for his drug use on September 1, 2005.

[17] Following the November 2004 incident, Hall continued to use crack cocaine for nearly one month. On his own, and before being discovered by the OPS, Hall attended the Homewood Health Centre in Guelph for treatment. Hall did not inform the OPS of his drug use or counselling. In January 2005, shortly after his discharge from Homewood, Hall relapsed and began using cocaine again. [page680]

[18] In February 2005, Hall was assessed by Bruce Johnston. On Johnston's recommendation, Hall returned to Homewood for treatment in April 2005. After his discharge in the spring of 2005 from his second round of treatment, Hall continued to use cocaine. He continued cocaine use until his admission to Rideau Meadow Creek Addiction Centre on November 3, 2005.

[19] The respondent OPS notes that counts 3, 4, 5 and 7 of the misconduct offences, and to a substantial extent the allegations in count 6 (i.e., the purchase of cocaine over ten- 12 months), relate to incidents that occurred after Hall had received treatment and counselling from both Dr. Morissette and Johnston.

[20] The September 11, 2006 report of Dr. Morissette, tendered immediately prior to the disciplinary hearing, outlined Hall's efforts at rehabilitation as follows:

He attended the Meadowcreek addiction treatment program in November 2005, Following this he attended their weekly after- care group for twelve weeks and now attends their monthly after-care group. He attends AA five times a week and is also involved in the Rideauwood Addiction Program where he attends group therapy on a weekly basis. He sees Paula, his addiction counselor at Rideauwood every two to three weeks for individual counseling. He meets his AA sponsor once a week. Twice a week he comes here to provide us with urine drug screens. His urines drug screens have repeatedly been negative for all mood altering drugs including alcohol. Since completing the Meadowcreek program and starting this process, we have not had any positive urines on him. Once a month I see him for individual therapy and counseling to monitor his sobriety and his recovery process.

So far, he is showing very good motivation and progress and his long term prognosis is good.

[21] The April 13, 2007 report of Dr. Morissette, tendered at the OCCPS hearing, stated that Hall had continued to maintain his abstinence from all mood altering drugs, had continued to volunteer for bi-weekly urine tests and had continued to attend AA and counselling and therapy sessions.

(d) Proceedings before hearing officer Kelly

[22] At the September 26, 2006 proceedings before hearing officer Kelly, Hall pleaded guilty to eight of the nine charges, as set out above. The Agreed Statement of Fact was read into the record. Both parties called witnesses and made submissions. The hearing officer admitted into evidence a number of medical and treatment reports filed on behalf of Hall. In addition, Hall filed 13 letters of support from police officers and 12 from members of the community.

i. Evidence on behalf of OPS

[23] David McKercher, Senior Counsel, Federal Prosecution Service, Ottawa-Gatineau Public Security and Anti-Terrorism [page681] Prosecutions, was the first witness for the prosecution. He advised that he had prosecuted numerous drug cases. He agreed that the credibility of a witness, and especially that of a police officer as a witness, is an important issue in the trial process. He stated that in a trial, Hall would have a difficult time with questions concerning his credibility, specifically with questions concerning tampering with evidence. He further stated that Hall's credibility would not satisfy a court and that his evidence could well create a reasonable doubt. While he agreed with defence counsel that the Crown would not be obliged to disclose information about Hall's misconduct or discipline in a criminal trial pursuant to Stinchcombe, he stated that in an O'Connor application, access to Hall's disciplinary records might have to be provided.

[24] Superintendent Ralph Erfle was the next witness for the OPS. Prior to the amalgamation of the Ottawa Police, he spent 15 years with the Nepean Police Services. He described Hall's duties as being that of a neighbourhood officer, working in uniform and, on occasion, in plainclothes, doing minor investigations and follow-ups on various occurrences. Superintendent Erfle testified as to [the] following important matters: -- Hall's conduct, and the media attention attached to it, affects each member of the OPS. It affects the entire OPS organization, specifically drug programs being delivered by it. -- The OPS has excellent employee assistance programs, but Hall never utilized them. -- It would be an unprecedented challenge to place Hall in a position within the OPS, given that Hall's violation of trust was serious. Superintendent Erfle was concerned about the image of the OPS. To attempt to reintroduce Hall into the OPS would constitute an undue hardship. -- Hall would require close supervision over an extended period of time and the OPS is not structured to allow for this. -- The prosecutor spoke of seven positions within the OPS and asked if Hall had the necessary qualifications to fill them. Superintendent Erfle explained each position and the necessary skills required, stating that Hall was not qualified for any position requiring a uniformed officer. -- Under cross-examination, he agreed that the OPS operates in a non-discriminatory manner, that the public expects officers to be treated fairly under the Human Rights Code [page682] and that the OPS does not discriminate based on an officer's conduct. -- He was questioned about another OPS officer, Constable David Guenette, who had stolen money, but had been demoted instead of being dismissed. He stated that he was aware of the case and that the incident had a negative impact on the reputation of the OPS. He stated, however, that the Guenette case was less serious than Hall's situation. -- When questioned as to whether management could transfer members out of specific duties to accommodate another member, he agreed they could, but stated that the replacing officer would have to have the necessary skills and abilities to carry out the position.

ii. Evidence on behalf of Hall

[25] The first witness for the defence, Jeff Broadfoot, was hired by the Ottawa Police in 1977 and had been an administrator with the Ottawa Police for seven years. Mr. Broadfoot listed seven positions within the OPS where an officer could work and not be required to attend court: (i) professional development; (ii) ViCLASS; (iii) human resources; (iv) diversity; (v) media relations; (vi) crime analysis; and (vii) court liaison. Under cross-examination, he agreed that he was not familiar with Hall's skills and had no information as to whether Hall was qualified for any of the positions identified.

[26] The second witness for the defence was Constable David Guenette, who was hired by the OPS in 1981. Constable Guenette testified that in 1995, while on duty and in uniform, he entered the lobby of a bank and withdrew money from an automated bank machine that was activated by a previous user. At his PSA trial, which was well attended by the media, he was found guilty and was subsequently required to resign from the OPS. After a successful appeal, he was reassigned as a police officer, but was demoted to a third-class constable. He testified that he returned to the OPS in 1999 to continue his duties as a uniformed constable; he was partnered with another officer for two nights to acclimatize him and received no direct supervision. Since his PSA convictions, he had testified in the criminal forum on three occasions, and his previous misconduct had never been raised.

[27] A number of medical and treatment reports filed on behalf of Hall were admitted by the hearing officer , including: [page683] (i) Medical Report of Dr. Louis Morissette, dated February 22, 2006, (ii) Report of Addiction Counsellor Bruce Johnston, dated March 13, 2006, (iii) updated letter from Dr. Louis Morissette, dated September 11, 2006.

[28] Dr. Morissette gave the following opinion in his February 22, 2006 report:

I think the police force could accommodate him relatively easily. Kevin could be assigned to investigative work where there would be little or no risk to his being exposed to cocaine. This of course precluded his ever working in the "drug squad". Experience with other groups of professionals such as health professionals has shown that frequent and regular urine drug screens can be a critical element in achieving success . . . .

[29] The September 11, 2006 letter from Dr. Morissette reported that Hall was continuing with his treatment program, had passed his twice-weekly urine tests and that his prognosis for recovery was good.

[30] In his report, Johnston made a number of recommendations in relation to possible conditions that would allow Hall to continue his career with the OPS. These recommendations are reflected in the sentencing submissions made on behalf of Hall, which proposed conditions to accommodate his addiction. Johnston concluded his report by stating:

. . . I believe at this time Const. Hall has a good prognosis of remaining abstinent on a long term basis if he follows his recovery program. It is my opinion that Const. Hall could be successfully reintegrated into his career with little risk to himself, the Police Department or his recovery. I further believe that he would, if successful in his recovery, be a positive example of how a successfully recovering person can contribute to the community and become a credit to the Ottawa Police Department.

iii. Sentencing submission on behalf of Hall

[31] A proposal for random drug testing and demotion was advanced on Hall's behalf in written submissions to the hearing officer . Hall proposed that he be demoted to a fourth-class constable with certain conditions applicable to his return to active duty, which are reproduced below:

(i) For a one-year period, Constable Hall will work in uniform in an inside position within the Ottawa Police Service on a fixed day shift. For this one year period, Constable Hall will not carry a firearm. After a period of one year, the Police Service will have the discretion to transfer Constable Hall to a position that requires outside work, and the carrying of a firearm. [page684] (ii) Constable Hall will not possess or use any substance included in Schedule I, II or III of the Controlled Drugs and Substances Act. He will, however, be permitted to handle these substances as required by the Police Service in the performance of his duties. (iii) Constable Hall will be subject to random drug testing for illegal substances at the management's sole discretion and for as long as he is employed by the Ottawa Police Service. In addition to random drug testing, Constable Hall will provide Dr. Morissette with urine for drug screens on a weekly basis for a one year period. (iv) Refusal to provide a sample for drug testing or testing positive for a substance included in Schedule I, II or III of the Controlled Drugs and Substances Act may result in prosecution for insubordination under the Police Services Act in which the Ottawa Police Service will be entitled to seek Constable Hall's dismissal. (v) Once Constable Hall has completed the after-care program at the Royal Ottawa Hospital, Constable Hall will participate in Dr. Morissette's long-term group until Dr. Morissette advised Constable Hall that he no longer needs to attend. (vi) Constable Hall will not be eligible to perform paid duties unless and until the Police Service transfers Constable Hall to an outside position that requires him to carry a firearm. (vii) In the event that Constable Hall breaches any of the above conditions, he can be prosecuted for insubordination under the Police Services Act, and the Ottawa Police Service will be entitled to seek his dismissal. (Emphasis added)

(e) The sentence order of hearing officer Kelly

[32] Hearing Officer Terence Kelly (Retired Deputy Chief, York Regional Police Service) released his decision on December 4, 2006, requiring Hall to resign from the OPS within seven days or be summarily dismissed, for reasons that will be further discussed in the review of the OCCPS decision.

(f) The OCCPS decision

[33] The appeal to OCCPS was heard April 26, 2007. A unanimous decision to dismiss the appeal of Hall was released December 5, 2007. Several key passages are reproduced below:

The hearing officer's observations with respect to the hazards of police work, and Constable Hall's history of relapse and response to stress are certainly supported by the record. That however, cannot be taken to suggest that an officer with an addiction to drugs can never be accommodated.

At the heart of the hearing officer's analysis appears to be a concern that Constable Hall's repeated misconduct over a lengthy period of time was of such an outrageous nature that he effectively destroyed his potential usefulness as a police officer. Further, that if he were to remain a police officer it would seriously damage the reputation of the Service. [page685]

This certainly would appear to be a conclusion available to the hearing officer . The OCCPS decision concludes:

There is a duty to accommodate. However, it is not bottomless or a license to breach statutory duties. Given Constable Hall's history, the nature of his misconduct and the evidence of Superintendent Erfle it was certainly open to the hearing officer to conclude that accommodation in this situation would cause undue hardship on the Services.

Further, given Constable Hall's brief career, the number and seriousness of his offences, the fact that they were not isolated occurrences, the need for general deterrence and, the damage to the reputation of the Service if he were to remain a police officer it was open to the hearing officer to conclude that his usefulness as an officer was spent.

For the above noted reasons we are satisfied that the decision of the hearing officer properly and fairly weighed the relevant principles and imposed a penalty that was both reasonable and did not display an error in principle. (Emphasis added)

Analysis

Issue 1: What is the appropriate standard of review for this court to apply to an OCCPS decision, where the OCCPS is reviewing a hearing officer's decision on penalty that raises the issue of the duty to accommodate a disability?

(a) Position of the parties on the applicable standard of review

[34] The appellant argues that the hearing officer and the OCCPS are specialized tribunals relating to policing, but do not have any particular expertise relative to the duty to accommodate in human rights law. As a result, the appellant submits that the standard of correctness ought to apply to decisions of the OCCPS. The appellant's position is that, although the penalty for decisions of the OCCPS are generally subject to review on a reasonableness standard, here the correctness should apply due to the human rights aspect of Hall's case.

[35] The respondent OPS submits that the OCCPS carefully reviewed the appropriate principles applicable to this matter, including a general duty to accommodate an individual with an addiction. As a result, the respondent OPS takes the position that the only issue to be determined is whether the decision of the OCCPS was unreasonable. [page686]

(b) Determining the issues that are under review and the applicable standard

[36] The applicable standard is determined in accordance with the standard of review analysis recently stated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9 ("Dunsmuir"), at para. 64:

The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.

[37] However, before the applicable standard can be determined, the issues within the OCCPS decision that are under review must be properly defined.

[38] The appellant argues that the correctness standard should apply to the OCCPS decision in its entirety by virtue of the human rights dimension of Hall's case. While it is true that the applicable standard of review must be examined in light of the human rights aspect of the present case, applying the correctness standard to every issue the OCCPS determined in its decision would be inconsistent with the established jurisprudence.

[39] The proper approach to framing the issues subject to review was established by the Divisional Court in Hamilton Police Assn. v. Hamilton (City) Police Services Board, 2005 20788 (ON SCDC), [2005] O.J. No. 2357, 200 O.A.C. 7 (Div. Ct.) ("Hamilton"), where Swinton J. stated, at para. 23:

Ultimately, 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 Constructions, supra [Voice Construction Ltd. v. Construction General Workers' Union, Local 92, 2004 SCC 23, [2004] S.C.J. No. 2] (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 [Newfoundland Association of Public Employees v. Newfoundland (1996), 1996 190 (SCC), 134 D.L.R. (4th) 1 (S.C.C.)], 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.

[40] As in Hamilton, here the question of the applicable standard of review also turns on the particular issue being determined by the OCCPS. There are two such issues.

[41] The first issue the OCCPS was required to determine was whether the hearing officer appreciated the applicable law governing the duty to accommodate. As indicated by the reasoning in [page687] Hamilton, both the hearing officer and the OCCPS must be correct in their understanding and application of the duty to accommodate as a legal standard.

[42] On judicial review, the correctness standard applies to this first issue because the duty to accommodate is a principle of general law. As noted by the majority decision in Dunsmuir, supra, at para. 50:

As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law . . . .

Further, the majority decision stated, at para. 60:

. . . courts must also continue to substitute their own view of the correct answer where the question is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise" (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers.

[43] That the OCCPS must be correct where the question at issue is one of general law was also recognized in Kelly, supra, where the Divisional Court stated, at para. 49:

However, it must be remembered that, in appropriate circumstances, the Divisional Court will review any decision of OCCPS to determine whether OCCPS both articulated and applied the correct standard of review to the decision of the hearing officer . Thus, where OCCPS substituted its conclusions and findings of credibility for that of the hearing officer , the Divisional Court found [citing Blowes- Aybar at para. 56]:

para. 56. For these reasons, we conclude that the Commission erred when it in practice applied the wrong legal test for review and overreached its review jurisdiction. It in essence retried the case, based upon the review of the transcript, and purported to make findings of credibility without the benefit of hearing any evidence. Thus, it failed to respect the principle of deference of the trier of fact when the issue is credibility. It also failed to provide any factual analysis that would justify its decision.

[44] The second issue that the OCCPS was required to determine was whether the penalty imposed upon Hall was appropriate, considering the requirement of reasonable accommodation under human rights law. The applicable standard with respect to this second issue is reasonableness. As will be further explained, there are four reasons why the reasonableness standard applies: (1) Decisions of the OCCPS on penalty are generally subject to review on the reasonableness standard. [page688] (2) Decisions concerning penalty and undue hardship are questions of mixed law and fact. (3) Assessing whether the duty to accommodate has been met is a function within the mandate of the OCCPS under the Police Services Act. (4) The OCCPS possesses a relative expertise in applying the concept of undue hardship in the context of a police disciplinary process.

[45] Recognizing that different standards of review apply to the OCCPS decision in terms of whether it got the general law right versus whether it applied the general law properly to the facts of a given case was recognized by the Supreme Court of Canada in Dunsmuir. In his concurring opinion, Binnie J. stated, at para. 142:

Mention should be made of a further feature that also reflects the complexity of the subject matter of judicial review. An applicant may advance several grounds for quashing an administrative decision. He or she may contend that the decision maker has misinterpreted the general law. He or she may argue, in the alternative, that even if the decision maker got the general law straight (an issue on which the court's view of what is correct will prevail), the decision maker did not properly apply it to the facts (an issue on which the decision maker is entitled to deference). In a challenge under the Canadian Charter of Rights and Freedoms to surrender for extradition, for example, the minister will have to comply with the Court's view of Charter principles (the "correctness" standard), but if he or she correctly appreciates the applicable law, the court will properly recognize a wide discretion in the application of those principles to the particular facts. The same approach is taken to less exalted decision makers (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11). In the jargon of the judicial review bar, this is known as "segmentation".

[46] The standard of review analysis leads us to the conclusion that the reasonableness standard applies to the OCCPS decision concerning penalty, even when the issue of reasonable accommodation is engaged, for the following reasons.

1. Decisions of the OCCPS on penalty are generally subject to review on the reasonableness standard

[47] It is well established that the standard of review to be applied to an appeal from the OCCPS to the Divisional Court on the issue of penalty is reasonableness. As noted by the majority decision in Dunsmuir, at para. 54: "Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law." [page689]

[48] In Toronto (City) Police Service v. Blowes-Aybar, 2004 34451 (ON SCDC), [2004] O.J. No. 1655, 185 O.A.C. 352 (Div. Ct.), the Divisional Court accepted that the standard of review for the OCCPS to apply to decisions of the hearing officer was that of reasonableness simpliciter. Following Dunsmuir, the two variants of reasonableness have been collapsed into a single form of "reasonableness" review.

[49] That the reasonableness standard applies to issues of penalty was again recognized in Kelly, at para. 46, where the Divisional Court applied the following statement from the Ontario Court of Appeal decision in Ontario (Provincial Police) v. Favretto (2004), 2004 34173 (ON CA), 72 O.R. (3d) 681, [2004] O.J. No. 4248 (C.A.), at paras. 50-52:

. . . the proper approach for the Divisional Court would have been for it to review the decision of the Commission to determine if it was reasonable. This would require the court to determine if the Commission properly considered all relevant factors in determining the appropriate penalty, including the opinion and reasons of the hearing officer , who also has expertise in these matters . . .

The Commission is a specialized administrative tribunal that has been given broad powers on an appeal from a decision of a hearing officer to "confirm, vary or revoke the devisor being appealed" or to "substitute its own decision for that of the chief of police" which would include a decision by a hearing officer to impose a penalty of dismissal . . . .

On an appeal under s. 71(2) of the Act from the penalty imposed by the Commission on an appeal, from the hearing officer , the Divisional Court's role was (i) to review the decision of the Commissioner to determine if it was reasonable and (ii) to extend to the Commission's decision the judicial deference required by that standard.

[50] In Galassi v. Hamilton (City) Police Service, [2005] O.J. No. 2301, 139 A.C.W.S. (3d) 1096 (Div. Ct.), the Divisional Court also confirmed that the reasonableness standard should be applied to issues of penalty, stating, at paras. 17-18:

. . . the Commission is to ensure that the relevant factors in assessing penalty have been considered and appropriately weighed in a fair and impartial manner, and the Commission is to vary a penalty that is unreasonable or that would amount to an injustice . . . . In my view, the Commision did not cast its role too narrowly. It reviewed the reasons of the hearing officer and examined whether he had considered the relevant factors and imposed a penalty within the acceptable range . . .

It is the task of this Court to review the decision of the Commissioner to determine whether it was reasonable.

2. Decisions concerning penalty and undue hardship are questions of mixed law and fact

[51] The second reason the standard of reasonableness applies is that decisions about undue hardship and whether reasonable [page690] accommodation is possible must turn on an assessment of available evidence. Therefore, the decision whether Hall's addiction could be accommodated by the OPS short of undue hardship is a question of mixed fact and law. Questions of mixed fact and law are generally subject to review on a standard of reasonableness, as was confirmed in Dunsmuir, where the majority stated, at para. 53:

Where the question is one of fact, discretion or policy, deference will usually apply automatically (Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated.

[52] As noted in the concurring opinion of Deschamps J. in Dunsmuir, supra, at para. 164:

The category of questions of mixed fact and law should be limited to cases in which the determination of a legal issue is inextricably intertwined with the determination of facts. Often, an administrative body will first identify the rule and then apply it. Identifying the contours and the content of a legal rule are questions of law. Applying the rule, however, is a question of mixed fact and law. When considering a question of mixed fact and law, a reviewing court should show an adjudicator the same deference as an appeal court would show a lower court.

3. Assessing the duty to accommodate is a function connected to the mandate of the OCCPS under the Police Service Act

[53] The third reason the reasonableness standard applies relates to the function performed by the hearing officer and the OCCPS pursuant to the PSA. Both the hearing officer and OCCPS were exercising powers conferred under their own statutory mandate in assessing whether the duty to accommodate up to the point of undue hardship had been satisfied within the police disciplinary context, as s. 47 of the PSA states:

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 the two legally qualified medical practitioners is received, the board, (a) determined, on the basis of that 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 [page691] (b) concludes that the member's needs cannot be accommodated without undue hardship on the board. [See Note * below]

[54] Thus, the Ontario Human Rights Code and the duty to accommodate are not foreign to the statute under which the hearing officer and the OCCPS operate. Indeed, the authority of the hearing officer and the OCCPS to adjudicate disciplinary complaints in accordance with human rights law is a function assigned and properly exercised under the PSA. As such, the Supreme Court of Canada decisions in Dunsmuir and Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, [2007] S.C.J. No. 15 ("Via Rail") support the conclusion that the decisions of both the hearing officer and the OCCPS as to whether the duty to accommodate has been met are subject to review on the reasonableness standard.

[55] In Via Rail, the Supreme Court of Canada stated, at paras. 96-97:

It seems to me counterproductive for courts to parse and recharacterize aspects of a tribunal's core jurisdiction, like the Agency's discretionary authority to make regulations and adjudicate complaints, in a way that undermines the deference that jurisdiction was conferred to protect. By attributing a jurisdiction-limited label, such as "statutory interpretation" or "human rights", to what is in reality a function assigned and properly exercised under the enabling legislation, a tribunal's expertise is made to defer to a court's generalism rather than the other way around.

I do not share the view that the issue before the Agency was, as a human rights matter, subject to review on a standard of correctness. This unduly narrows the characterization of what the Agency was called upon to decide and disregards how inextricably interwoven the human rights and transportation issues are. Parliament gave the agency a specific mandate to determine how to render transportation systems more accessible for persons with disabilities. This undoubtedly has a human rights aspect. But that does not take the questions of how and when the Agency exercises its human rights expertise outside the mandate conferred on it by Parliament.

[56] In addition, the majority decision in Dunsmuir stated, at para. 54:

Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 148 (SCC), [1995] 1 S.C.R. 157, at para. 48; 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. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a [page692] specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidence in McLeod v.Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review.

4. The OCCPS possesses a relative expertise in applying the concept of undue hardship in the context of a police disciplinary process, relative to the court

[57] The fourth reason that a reasonableness standard is applicable relates to the issue of the tribunal's expertise. Both the hearing officer and the OCCPS possess a relative expertise in applying the concept of undue hardship within the context of a police workplace and a police disciplinary process, in comparison to the courts. The determination of undue hardship is a fact specific inquiry, as noted by the Supreme Court of Canada in Via Rail, at para. 127:

The scope of the right of persons with disabilities to be free from discrimination will depend on the nature, legitimacy and strength of the competing interests at stake in a given case. These competing interests will inform an assessment of what constitutes reasonable accommodation.

[58] In the present case, the hearing officer and the OCCPS have relative expertise in assessing whether reasonable accommodation of the appellant is possible in the context of his being employed as a police officer. Such an assessment must be informed by the expertise the hearing officer and the OCCPS possess in terms of assessing whether a police officer who is disabled due to a cocaine addiction is capable of "performing the essential duties" of a police officer, considering the role the police play in enforcing the law and promoting respect for the law. Furthermore, the hearing officer and the OCCPS have a relative expertise in assessing the degree in which the criminal activity of a police officer will undermine the public's trust in a police service; this is a factor that may be considered in determining undue hardship.

[59] In summary, the decisions of both the hearing officer and the OCCPS must be correct with respect to the issue of their interpretation of the duty to accommodate as a legal standard. However, the decision of the OCCPS is subject to review on a standard of reasonableness by this court with respect to its analysis of whether the hearing officer determined the appropriate penalty considering the context of Hall's disability. [page693]

Issue 2: Whether the decisions of the OCCPS and the hearing officer correctly appreciated the nature of the duty to accommodate as a principle of general law

(a) Defining the correctness standard of review

[60] As to the definition of the correctness standard, the Supreme Court of Canada commented in Dunsmuir, at para. 50:

When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.

(b) The law on the duty to accommodate

[61] The law on the duty to accommodate where the employer is a police force was summarized by the Divisional Court in Hamilton, supra, where, at paras. 24-25, Swinton J. stated:

The 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 the needs of the individual cannot 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).

Under 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).

[62] Swinton J., citing British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), 1999 652 (SCC), [1999] 3 S.C.R. 3, [1999] S.C.J. No. 46, 176 D.L.R. (4th) 1, then stated at para. 28:

The 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 evidence 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: [page694]

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.

[63] The Supreme Court of Canada recently re-emphasized that the assessment of undue hardship is a fact-driven analysis, stating at paras. 123-24 of Via Rail:

What constitutes undue hardship depends on the factors relevant to the circumstances and legislation governing each case: Chambly, at p. 546 [Commission scolaire régionale de Chambly v. Bergevin, 1994 102 (SCC), [1994] 2 S.C.R. 525]; Meiorin, at para. 63. The factors in forming a respondent's duty to accommodate "are not entrenched, except to the extent that they are expressly included or excluded by statute": Meiorin, at para. 63.

In all cases, as Cory J. noted in Chambly, at p. 546, such considerations "should be applied with common sense and flexibility in the context of the factual situation presented in each case".

[64] The Supreme Court of Canada also recognized that there are limits on the duty to accommodate, stating, at para. 133 of Via Rail:

It bears repeating that "[i]t is important to remember that the duty to accommodate is limited by the words 'reasonable' and 'short of undue hardship'. Those words do not constitute independent criteria. Rather, they are alternate methods of expressing the same concept": Chambly, at para. 33, citing Central Okanagan School District No. 23, at p. 984 . . .

(c) Whether the decisions of the OCCPS and the hearing officer exhibited the correct understanding of the duty to accommodate

[65] In exhibiting an understanding of the duty to accommodate, the OCCPS and the hearing officer are not required to parrot the language of authorities such as Meiorin. It is sufficient if the decisions of the OCCPS and the hearing officer , viewed as a whole, show they were aware of the duty to accommodate and the nature of the inquiry required under the law governing the duty.

[66] The OCCPS decision displays a correct legal understanding of the duty to accommodate, as does the decision of the hearing officer , which the OCCPS reviewed in the following passage:

That being said, there are principles articulated in Kelly and Toronto Police Service that are relevant.

First, that decision makes it clear that an addiction to cocaine is a disability under the provisions of Ontario's Human Rights Code. There is a legal duty on police employers under both that statute and the Act [Police Services Act] to accommodate officers with such disabilities to the point of undue hardship. [page695]

At page 23 of his decision the hearing officer acknowledged "Superintendent Erfle, in his testimony, clearly identified that the Ottawa Police Service has a duty to accommodate officers if they come forward and ask for assistance, and they have programs in place to deal with these issues."

The duty to accommodate must be assessed in light of individual employees and their employers. It is a shared responsibility. It also must take into account the essential requirements of the type of employment in question. The required analysis has particular challenges in the disciplinary context where there is often a mix of culpable and non-culpable facts. Re: Fraser Lake Sawmills Limited and I.W.A. Canada, Loc.1-424 [2002] B.C.L.R.B.D. No. 390.

[67] This passage shows that OCCPS and the hearing officer correctly appreciated that dismissing Hall due to the misconduct caused by his cocaine addiction would be prima facie discriminatory on the basis of disability, and therefore that his dismissal would only be justified if the OPS established that Hall could not be accommodated without the OPS suffering undue hardship.

[68] Viewed as a whole, the decisions of the OCCPS and the hearing officer show that they approached the legal analysis of reasonable accommodation to the point of undue hardship correctly. They exhibited the correct understanding of the substance of the Supreme Court of Canada's directions in Meiorin and Via Rail as to assessing reasonable accommodation and applied the correct burden of proof.

Issue 3: Whether the decision of the OCCPS to uphold the hearing officer's order with respect to the penalty was reasonable in the context of a duty to accommodate a disability

[69] As previously stated, the decision of the OCCPS on how to apply the legal principles governing the duty to accommodate to the facts of a case, in the context of a hearing concerning a penalty for misconduct, is subject to review on a standard of reasonableness.

(a) Defining the reasonableness standard of review

[70] The reasonableness standard was defined by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, at para. 47:

The content of a standard of review is essentially the question that a court must ask when reviewing an administrative decision. The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" This is the question that must be asked every time the pragmatic and functional approach in Pushpanathan, supra, directs reasonableness as the standard. Deference is built into the question since it [page696] requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker, rather than inviting the court to engage de novo its own reasoning on the matter. Of course, the answer to the question must bear careful relation to the context of the decision, but the question itself remains constant.

[71] The reasonableness standard was recently refined in Dunsmuir, supra, at paras. 47-49:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. . . . Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law . . .

In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

[72] The OCCPS decision indicates they were cognizant of the requirement that a reasonableness standard be applied to their review of a decision of a hearing officer on an issue of penalty. After acknowledging the principles and factors that ought to be taken into account by a hearing officer in assessing the appropriate penalty, the OCCPS properly stated its role:

It is not to second-guess the hearing officer's decision, even if we may have imposed a different penalty. Rather, it is to assess whether or not the hearing officer considered and appropriately weighed these principles in a fair and impartial manner. We may vary a penalty that is unreasonable, fails to consider all relevant matters, demonstrates a manifest error in principle or would amount of an injustice. This is not done lightly. Toronto (City) Police Service v. Kelly, supra, and Ontario (Provincial Police) v. Favrett (2004), 2004 34173 (ON CA), 72 O.R. (3rd) 681 (Ont. C.A.). [page697]

(b) Position of the appellant

[73] The appellant submits that the OCCPS decision fundamentally misinterpreted four general principles governing the duty to accommodate, arguing that: (1) the duty to accommodate will apply even where the disability leads to the commission of offences that are reprehensible, provided that the misconduct is causally related to the addiction (2) the OCCPS overlooked the proposal for random drug testing in considering Hall's potential exposure to drugs; (3) general deterrence for offences committed by police officers may be accomplished by demotion of Hall to the lowest possible rank of fourth-class constable working as a uniformed officer without a firearm; (4) where there is a low risk of relapse, accommodation without undue hardship is possible. The evidence shows Hall is at a low risk of relapse.

[74] Central to all of these arguments is the appellant's reliance on the Divisional Court decision in Kelly, supra. In essence, the appellant argues that it would be incorrect or unreasonable for the hearing officer and the OCCPS to reject his sentencing proposal given the factual similarities he alleges between his own case and those in Kelly. The appellant's sentencing proposal mirrors the joint submission on sentence that was rejected by the hearing officer in the Kelly case, but was then found reasonable by the OCCPS and the Divisional Court.

(c) Application of the reasonableness standard to the OCCPS decision

[75] The hearing officer and the OCCPS both found that the Kelly case was factually distinct from the appellant's case. The OCCPS decision considered and distinguished Kelly as follows:

The hearing officer also examined the application of Kelly and Toronto Police Service to the situation before him. That case concerned an undercover drug officer who developed an addiction to cocaine during the course of his employment. When he started to experience personal difficulties he sought a transfer to another work unit. This did not occur. As well, at the time the Toronto Police Service did not have a program in place that would have assisted Constable Kelly in his job- related stress and substance abuse.

Constable Kelly was eventually arrested in a sting operation and charged criminally. He pled guilty to two counts of simple possession of cocaine for which he [page698] received suspended sentences and was placed on probation for two years. This was based in part on substantial efforts at rehabilitation and what Mr. Justice Cowan described as a sixteen-year "impeccable" record of "heroic service".

Constable Kelly subsequently pled guilty to two counts of discreditable conduct contrary to s. 2(1)(a)(xi) of the Code. The Prosecution and Defence made a joint submission on penalty. It essentially contained a "last chance agreement" placing Constable Kelly in an identified position subject to thirteen stringent conditions. . . . . .

We agree with the hearing officer that the facts in Kelly and Toronto Police Service can be distinguished from those on this appeal. There were clear differences. Leaving aside the fact that Constable Hall pled guilty to eight disciplinary offences as opposed to Constable Kelly's two, there were clear factual differences. Constable Kelly did not steal drugs from citizens or evidence envelopes. He did not purchase drugs while on duty.

[76] The finding that Hall's case is factually distinct from the situation [in] Kelly is reasonable, and moreover this court agrees with that finding. Other factual distinctions include the fact that the OPS does have a program in place to deal with substance abuse and stress problems; that Hall concealed his history of substance abuse on his application form; and the comparatively short career of Hall. In short, the egregious conduct of Hall over a period of one year is clearly in a different category than the misconduct in Kelly and supports the conclusion that Hall's utility as a police officer is spent.

[77] Having rejected the argument that it was unreasonable, or even incorrect, for the OCCPS to distinguish the appellant's case from the Kelly decision, the remaining task of this court is to review the reasonableness of the OCCPS decision as it relates to the four specific grounds raised by the appellant.

(1) Extent of the duty to accommodate misconduct caused by addiction

[78] The appellant submits that addiction to an illegal substance such as cocaine will by definition involve a person in serious and reprehensible conduct. The appellant argues that the duty to accommodate will apply even where the disability leads to the commission of reprehensible offences where the misconduct is causally linked to the addiction. A person who commits crimes and is incarcerated provides an example of the outer limits of this principle in the appellant's submission.

[79] The extent of the duty to accommodate is a determination that must be made on a case-by-case basis. It cannot be the case that no matter how outrageous and reprehensible the conduct, there is a duty to accommodate provided that the conduct is [page699] causally related to addiction. Instead, the extent of the duty to accommodate and the scope of the right of persons with addictions to be free from discrimination will depend on the nature, legitimacy and strength of the competing interests at stake in a given case.

[80] It was certainly open to the OCCPS to conclude it was reasonable for the hearing officer to find that accommodation in this situation would cause undue hardship on the OPS. The decision of OCCPS is reasonable in this regard given, among other facts, Hall's history of stress and drug abuse; the nature of his misconduct; evidence as to the lack of Hall's future utility as a police officer; the objective of general deterrence; and the evidence of Superintendent Erfle concerning the ability of the OPS to find a position for Hall considering the nature of police work, as well as the damage to the reputation of the OPS if Hall were to remain a police officer.

[81] It must be repeated, however, that the reasonableness of the OCCPS decision in the present case does not imply that an officer with an addiction to drugs can never be accommodated without undue hardship.

2. Drug testing

[82] The appellant argues that the OCCPS erred by failing to consider Hall's proposal for random drug testing, which would protect the public. As such, the appellant argues that the OCCPS ruling is overbroad in that it would effectively exclude police officers with drug addictions from a duty to accommodate.

[83] The appellant's argument concerning random drug testing fails for the reasons stated above. Based on the evidence, it was reasonable for the OCCPS to conclude that the conditions outlined in the appellant's sentencing proposal were insufficient given the appellant's gross misconduct. We note, however, that drug testing could be a reasonable condition in an appropriate case, as evidenced by the Kelly case.

3. General deterrence

[84] Based on Kelly, the appellant argues that the Divisional Court has adopted the principle that deterrence can be achieved short of termination by imposing the reduction of rank, status and salary as sanctions. While conditions short of termination were reasonable in Kelly, in the present case it was reasonable for the OCCPS to conclude that Hall's dismissal was warranted given the circumstances of his misconduct. [page700]

[85] In its decision, the OCCPS stated, to repeat:

At the heart of the hearing officer's analysis appears to be a concern that Constable Hall's repeated misconduct over a lengthy period of time was of such an outrageous nature that he effectively destroyed his potential usefulness as a police officer. Further, that if he were to remain a police officer it would seriously damage the reputation of the Service. (Emphasis added)

[86] In addition, before the hearing officer , Superintendent Erfle testified that the conduct of Hall had a significant negative impact on the reputation of the OPS.

[87] The appellant further argues that human rights as recognized by the Human Rights Code ought not to be the subject of public opinion. The argument that the OCCPS could not take public opinion into consideration must be rejected. It was reasonable for the OCCPS to consider the public's trust in the police service as a valid consideration in assessing undue hardship, given the role police play in enforcing and promoting the law. The decision of OCCPS was reasonable in that it did not treat general deterrence and public opinion as determinative, but rather, simply as factors that informed the larger analysis of undue hardship and penalty.

4. Risk of relapse

[88] Based on Dr. Morissette's report, the appellant submits that there is undisputed medical evidence that there is a low risk of relapse, as demonstrated by Hall's two years of abstinence. However, the evidence accepted by the hearing officer and the OCCPS was that Hall would be at a high risk of relapse if he was to resume police work, given his history.

[89] The decision of the hearing officer noted that Hall was at a significant risk of relapse based upon the testimony of his own expert, Dr. Morissette. The hearing officer stated:

Given the comments of Dr. Morissette [concerning the addictive nature of cocaine], and the potency and cravings of a cocaine addict; the smell of the drug, or even the presence of drug paraphernalia, the addiction of Constable Hall would be intensely triggered. It is clear from the history of Constable Hall's drug use, his treatments and subsequent relapses, that any type of work within the police environment could trigger a relapse.

[90] In reference to the ability of the OPS to accommodate Hall, Dr. Morissette's report stated that Hall "could be assigned to investigative work where there would be little or no risk to being exposed to cocaine". The OCCPS decision rejected Dr. Morissette's conclusion concerning reasonable accommodation, stating:

This conclusion [of Dr. Morissette] however was disputed by Superintendent Erfle in his evidence of September 26, 2006. He testified that the challenges [page701] faced by accommodating Constable Hall to the Service would be "unprecedented", and could cause "undue hardship" given that Constable Hall by his own admissions violated approximately 6 out of the 9 stated duties to a police officer going directly to trust and community confidence.

[91] The conclusions of the hearing officer and the OCCPS concerning the risk of relapse, and the role that risk plays in assessing undue hardship, are findings of fact supported by the evidence and are thus reasonable.

[92] In addition, the appellant argues that the Kelly decision articulates a general standard under which accommodation without undue hardship will be possible where medical evidence demonstrates a low risk of relapse. The Kelly decision, however, cannot be taken to stand for this general proposition as the determination of reasonable accommodation must turn on the facts of a particular case.

Conclusion

[93] For these reasons, the appeal is dismissed. If the parties are unable to agree on costs, we will receive brief (no more than four pages each) submissions.

Appeal dismissed.

Notes

Note *: (Note: Section 47 refers to the "board", not the OCCPS or a hearing officer. Section 2 of the PSA states, " 'board' means a municipal police services board". Hall was not dismissed pursuant to s. 47.)