DIVISIONAL COURT FILE NO.: 191/11 and 454/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lax, SWINTON and nordheimer jj.
Court File No.: 191/11
B E T W E E N:
anishinabek police service
Applicant
- and -
public service alliance of Canada, gordon simmons, sherrill murray and irv kleiner
Respondents
Court File No: 454/11
AND BETWEEN:
anishinabek police service
Applicant
- and -
public service alliance of Canada, OWEN SHIME, sherrill murray and irv kleiner
Respondents
Brian Daly, for the Applicant
Andrew Raven, for the Respondent Public Service Alliance of Canada
David Feliciant, for the Attorney General of Ontario
Brian Daly, for the Applicant
Andrew Raven, for the Respondent Public Service Alliance of Canada
David Feliciant, for the Attorney General of Ontario
HEARD at TORONTO: July 10, 2012
Overview
1The applicant, Anishinabek Police Service (the “Employer” or the “APS”), seeks judicial review of two arbitration awards arising from grievances about an unpaid suspension imposed on First Nations Constable Craig McCue (the “grievor”) and the subsequent termination of his employment. At issue in these applications is the authority of the arbitrators to proceed to hear the grievances on the merits. The applicant argues that the doctrines of abuse of process and issue estoppel bar arbitration due to an earlier adjudication under the APS Code of Conduct and Professionalism (the “Code of Conduct”).
2For the reasons that follow, I would dismiss the applications for judicial review.
Background
The Process under the Code of Conduct
3According to the Agreed Statement of Facts (found at p. 46 of the Application Record in Court File 454/11), the APS, since it was formed in 1994, has operated under a series of tripartite Police Service Agreements involving the governments of Canada and Ontario and a number of Anishinabek First Nations. The APS is a stand-alone First Nations police service that polices 16 First Nation communities. As the tripartite agreement requires the adoption of a code of conduct to address employee discipline, the APS has had a Code of Conduct and Professionalism in place since 1994.
4The tripartite agreement leaves the content of the code of conduct to the discretion of the employer. In the present case, the Code of Conduct mirrors the code of conduct found in provincial legislation that applies to other police forces. However, First Nations constables are expressly excluded from the disciplinary provisions of the Ontario Police Services Act, R.S.O. 1990, c. P.15.
5The grievor was suspended with pay on May 3, 2005 after he became the subject of criminal charges. In September 2007, he pleaded guilty to a criminal charge of assault against his wife. He was convicted and was given a conditional discharge. In September, 2008, the APS changed his suspension to one without pay.
6In July 2009, the chief of the APS appointed a retired superintendent of the Ontario Provincial Police, R.J. Fitches, as an adjudicator to conduct a discipline hearing pursuant to the Code of Conduct. The adjudicator held a hearing over the course of several days and on January 26, 2010, determined that the grievor had engaged in discreditable conduct in respect of the assault on his wife. Subsequently, on April 12, 2010, the adjudicator concluded that the grievor should be dismissed from the APS. The dismissal occurred July 28, 2010.
The Arbitration Proceedings
7The Public Service Alliance of Canada (“the Union”) has been the certified bargaining agent for the First Nations constables employed by the APS since May 16, 2008. Labour relations between the APS and the Union are governed by the Canada Labour Code, R.S.C. 1985, c. L-2 (the “CLC”).
8The Union is bound by a collective agreement that was entered into by the APS and a predecessor police officers’ association in 2006. The collective agreement recognizes the Union as the exclusive bargaining agent for the uniformed officers of the APS (Article 1.01). The agreement also contains a management rights clause in Article 2.02 providing that the APS will not exercise discipline, up to and including termination, without reasonable cause. The article continues,
A claim by an employee that he/she has been disciplined without reasonable cause may be the subject of a grievance in accordance with the grievance procedure outlined in this Agreement.
9Pursuant to s. 57(1) of the CLC, parties to a collective agreement are required to resolve disputes concerning the application, interpretation, administration or alleged contravention of the agreement by referral to arbitration or otherwise, without stoppage of work. An arbitrator is either selected by the parties or appointed by the federal Minister of Labour (s. 57(2)).
10The powers of arbitrators are set out in s. 60 of the CLC and include the power to determine whether a matter is arbitrable (s. 60(1)(b)) and the power to substitute a penalty for the discipline imposed or a dismissal, if there is no specific penalty in the collective agreement (s. 60(2)).
11The Union filed grievances concerning both the unpaid suspension and the grievor’s dismissal under the collective agreement. The Union was not a party to the adjudication under the Code of Conduct, although a Union representative appeared as a witness. Indeed, the Union had written a letter to the APS in early January 2010 objecting to the process under the Code of Conduct.
12An arbitration board chaired by Gordon Simmons was appointed to hear the grievor’s suspension grievance. APS raised a preliminary objection to the arbitration board’s jurisdiction to hear the grievance, which was rejected. Subsequently, APS argued that the grievance should be dismissed because of issue estoppel or the doctrine of abuse of process.
13The majority of the board rejected APS’s submissions, holding that the arbitration board had jurisdiction to hear the grievance under the collective agreement (Simmons Award, March 8, 2010). As well, they rejected the arguments of issue estoppel and abuse of process, because the proceeding under the Code of Conduct did not result in a judicial decision and was not “litigation” in the legal sense of that word. Moreover, the issue before the arbitration board, the appropriateness of a disciplinary suspension, had not been dealt with by the adjudicator (Simmons Award, February 8, 2011).
14Subsequently, a second arbitration board, chaired by Owen Shime, was appointed to deal with the dismissal grievance, in which the Union claimed that APS contravened the collective agreement and the Canadian Human Rights Act, R.S.C. 1985, c. H-6 by dismissing the grievor without accommodating his disability, alcoholism.
15In an award dated September 8, 2011, the majority rejected APS’s argument that the arbitration proceeding should be dismissed, because it would be an abuse of process to continue. Arbitrator Shime adopted the reasons of Arbitrator Simmons and concluded that the adjudicator’s findings “lacked the necessary statutory or legal foundation to constitute a judicial or quasi-judicial proceeding to which the doctrine of abuse of process or issue estoppel may be applied in the event of a subsequently appropriate legal proceeding” (Shime Award, p. 8). As well, he relied on the provisions of the Canada Labour Code, concluding that they gave the grievor a right to proceed to arbitration respecting his discipline and dismissal before an independent arbitrator selected by the parties. The unilateral selection of the adjudicator by the Employer was not in accordance with the requirements of s. 57 of the CLC (Award, p. 12).
The Standard of Review
16The applicant argues that the arbitration awards must be reviewed on a standard of correctness, because the arbitrators were applying doctrines of abuse of process and issue estoppel. These are said to be general questions of law, outside the special expertise of a labour arbitrator. Moreover, the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 60 cited Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 as an example of a case where the standard of review was correctness, because the question at issue was one of general law both of central importance to the legal system and outside the adjudicator’s special expertise. At issue in the City of Toronto case was the application of the doctrines of issue estoppel and abuse of process by a labour arbitrator where the grievor had been convicted in a criminal trial and then sought to relitigate the underlying issues before the arbitrator.
17The Union argues that the standard of review is reasonableness, given the more recent decision of the Supreme Court of Canada in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59. In Nor-Man, the Court dealt with the standard applicable to the decision of a labour arbitrator applying the doctrine of equitable estoppel.
18I note that the Supreme Court in Nor-Man did not overrule the City of Toronto case. Indeed, the Court referred to that case when it described the situations in which the standard of correctness applies (see paras. 35 and 55). Fish J., speaking for the Court, explained that the standard of reasonableness applied because the arbitrator was imposing estoppel as a remedy (at para. 38), and arbitrators require flexibility to provide appropriate remedies in the resolution of workplace disputes (at para. 49). As well, he noted that arbitrators have the authority to apply general legal principles in a manner reasonably responsive to the distinctive nature of labour relations (at para. 52).
19This Court has recently held that the standard of reasonableness applied where a labour arbitrator had to apply the doctrines of abuse of process and issue estoppel to the award of another arbitrator dealing with the same parties (Canadian Union of Public Employees, Local 79 v. Toronto (City), 2012 ONSC 1158 (Div. Ct.) at para. 28).
20For purposes of this application for judicial review, I need not determine whether Nor-Man has changed the standard of review from that applied in City of Toronto. Assuming that the standard of review here is correctness, I am satisfied that the decisions of the arbitrators were correct.
Analysis
21The issue in the present case is whether the arbitrators were required to respect the determination of the adjudicator under the Code of Conduct that the grievor should be dismissed because of discreditable conduct. APS argues that the arbitrators erred in holding that the adjudication under the Code of Conduct was not a judicial proceeding and in concluding that the grievances were not bound to fail as a result of the adjudication.
22Finality doctrines such as issue estoppel and abuse of process are aimed at protecting the fairness and integrity of the adjudicative process (City of Toronto, above, at para. 51and British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 at para. 28). They aim at preventing a litigant who is dissatisfied with the result of an adjudication from attempting to relitigate. As Binnie J. stated in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, “A litigant, to use the vernacular, is only entitled to one bite at the cherry” (at para. 18).
23The requirements for issue estoppel were set out by the Supreme Court of Canada in Danyluk at para. 25:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
24Issue estoppel, as well as abuse of process, fundamentally requires that the decision in the prior process be a judicial decision, reached through an adjudicative process. In determining whether the prior decision is a judicial decision, three elements are to be considered:
Is it an institution that is capable of receiving and exercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicial manner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner? (Danyluk at para. 35)
25In the present case, both arbitrators set out the correct legal principles respecting abuse of process and issue estoppel and then applied them. They correctly concluded that the decision of the adjudicator was not a judicial decision as understood in the jurisprudence.
26There is no enabling legislation which provides the adjudicator under the Code of Conduct with authority to make a decision. Rather, the adjudicator’s authority derives from the Code of Conduct, which was adopted by the APS in order to meet its contractual commitments to the federal and provincial governments. Therefore, the adjudicator did not have any statutory authority to make a judicial decision, in contrast to the adjudicators in cases like Danyluk and Figliola, above.
27APS argues that the adjudicator acted judicially, as he conducted the hearing in a manner consistent with the procedures under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, in accordance with the requirements of the Code of Conduct. For example, evidence was taken under oath or affirmation and the procedures used were similar to those used under the Police Services Act.
28It is true that the adjudicator conducted the hearing in accordance with principles of procedural fairness. In that sense, it can be said that he acted in a judicial manner. However, that does not change the fact that he was not exercising a statutory function, nor was he making a judicial decision. Rather, he was acting as a delegate of the chief of the APS in making a decision whether to discipline the grievor.
29Both the APS and the Union rely on the decision of the Divisional Court in Macdonald v. Anishinabek Police Service, 2006 37598. In that case, the APS had dismissed a probationary constable. When he sought judicial review, the APS argued that the Court had no jurisdiction, as the relationship of the constable and the APS should be determined under the Canada Labour Code. However, the Canada Industrial Relations Board had dismissed a complaint from the constable that his union violated the duty of fair representation under the CLC because there was, as yet, no collective agreement in place at the time of his termination.
30In Macdonald, this Court rejected the argument that it had no jurisdiction to determine the application for judicial review. It concluded that the APS had a duty to act fairly prior to dismissing a constable, and the Code of Conduct granted the constable the right to a hearing. However, the APS had failed to provide such a hearing or procedural fairness.
31With respect to the interaction between the Code of Conduct and the procedures available under a collective agreement, the Court stated that “[i]t would only be at the conclusion of that hearing process that a discharge grievance could arise” (at para. 36). “That hearing process” is the one contemplated by the Code of Conduct. The Court also stated,
Given the dual nature of the APS, which is both an employer under the federal labour regime and the operator of a professional police force, the two systems must live together. We therefore reject the respondent’s submission that the Canada Labour Code has supplanted the APS Code of Conduct.
32Again at para. 41, the Court stated,
Unlike other police services which are subject to statutory discipline procedures under the Police Services Act, it would appear that the APS does not have available to it a statutory discipline procedure that it can invoke, unless it can be found in section 54. Instead, as noted, it has the Code of Conduct followed by resort to the grievance procedure under the collective bargaining agreement and the Canada Labour Code.
33Despite the APS’s argument that Macdonald is determinative of its argument for finality, I see nothing in the reasons of the Divisional Court that addresses the specific issue arising in the present applications. The Court in Macdonald determined that the APS could not unilaterally impose discipline without first following the Code of Conduct. If anything, the quotations above suggest that the Divisional Court recognized that resort to the grievance procedure and arbitration is available following a determination under the Code of Conduct.
34APS also relied on Penner v. Niagara (Regional Municipality) Police Services Board, 2010 ONCA 616 and Figliola, above. Both are distinguishable.
35In Penner, the Ontario Court of Appeal struck a Statement of Claim in a civil action brought by Mr. Penner against a police service. The issues raised were the same as those canvassed in a decision in an earlier disciplinary proceeding under the Police Services Act that had been upheld on appeal. Mr. Penner was a full party at the disciplinary hearing, as his complaint against the officers had led to the disciplinary process. In the circumstances, the Court held that the doctrine of issue estoppel applied. In the course of its reasons, the Court stated that “the hearing officer was carrying out a judicial function and the hearing was conducted with basic standards of procedural fairness” (at para. 25).
36In Penner, unlike the present case, the hearing officer was exercising his power in accordance with the statutory regime for police discipline found in the Police Services Act. In addition, Mr. Penner was the one who initiated the proceedings with his complaint, and he brought the civil action because of his discontent with the findings in the disciplinary process.
37Figliola is also a case where a litigant, unhappy with the result in one proceeding, turned to another forum. Several workers had first sought benefits from the Workers’ Compensation Board of British Columbia and, when dissatisfied with the outcome of those proceedings, had turned to the Human Rights Tribunal. The Supreme Court of Canada held that the Tribunal was precluded from proceeding because of a legislative provision stating that the Tribunal could dismiss a complaint if the substance of the complaint had been appropriately dealt with in another proceeding. In reaching this conclusion, Abella J. for the majority spoke of the importance of finality to litigation in the context where a litigant was seeking to relitigate in a different forum (at para. 47).
38The present case is not an example of a litigant invoking different tribunals to relitigate the same issue. The grievor did not invoke one adjudicative process and, when unhappy with the result, turn to arbitration. Rather, he was required to participate in a disciplinary process before the adjudicator that was set in motion by his Employer. Moreover, that process was created because of the Employer’s independent decision to adopt the Code of Conduct, albeit as required by the tripartite agreement.
39APS also argues that the issues before the adjudicator and Arbitrator Shime are the same, since each had to deal with the termination of the grievor’s employment. Counsel also argued that the suspension grievance before Arbitrator Simmons was bound to fail, given the decision to terminate by the adjudicator.
40However, even if the adjudicator’s decision could be said to be a judicial decision, the doctrine of issue estoppel does not apply here. The issues before the arbitrators and the adjudicator are not the same, despite the APS assertion to the contrary. The adjudicator stated clearly during the hearing before him that he was not dealing with violations of the collective agreement (Transcript, February 22, 2010, p. 172). Moreover, the dismissal grievance claims relief for unjust dismissal because of the non-discrimination clause in the collective agreement, the Canadian Human Rights Act and the duty to accommodate, none of which were considered by the adjudicator. In addition, the disciplinary nature of the suspension without pay was also not considered by the adjudicator.
41APS also argues that the Union was a party to the adjudication, since a Union representative was present and an individual from the Union testified on behalf of the grievor. However, the Union was not an active party to the adjudication. According to the Agreed Statement of Facts, the grievor was represented by an agent, and not counsel provided by the Union.
42APS also points to certain articles of the collective agreement as evidence of the Union’s acknowledgement and acceptance of the Code of Conduct proceedings. Article 1.07 defines an “Employee Representative” to mean a person either appointed by the Union or the employee in grievances or Code of Conduct complaints. Article 2.01 recognizes management rights, including in paragraph (d) the right to manage the APS, including the right to make rules, regulations and policies. Finally, Article 19.05 provides that an employee is not entitled to indemnification for legal costs arising from disciplinary charges or conduct complaints. In my view, none of these provisions indicates an agreement by the Union that discipline matters will be determined only through the adjudication process under the Code of Conduct.
43Finally, APS argues that the conclusion of the arbitrators calls into question the efficacy of the Code of Conduct and risks undermining public confidence in the public complaints system incorporated in the Code of Conduct. The Attorney General of Ontario also made submissions about the importance of an effective system of public complaints respecting First Nations police services.
44There is no doubt that an effective police complaints system is important to the administration of justice in the province. However, it is also important to acknowledge the policy in the Canada Labour Code that preserves and protects the right of employees to engage in free collective bargaining. In the present case, APS entered into a collective agreement with the Union which expressly recognized the employee’s right to grieve unreasonable discipline and dismissal decisions and ultimately contemplated arbitration before an independent arbitrator.
45APS adopted a Code of Conduct as it was required to do by the tripartite agreement. APS also entered into a collective agreement with the Union that provides the right to arbitrate discipline and dismissal decisions. These separate provisions have to co-exist. APS cannot avoid its contractual obligations under the collective agreement by reliance on the tripartite agreement. The Union is not a party to the tripartite agreement, and unilateral action by the APS in entering into that agreement cannot oust the right of the Union to pursue a grievance under the collective agreement.
46In sum, the arbitrators correctly concluded that the doctrines of abuse of process and issue estoppel did not preclude them from proceeding to hear the grievances on the merits.
Conclusion
47For these reasons, the applications for judicial review are dismissed. Costs to the Union are fixed at $6,000.00 all inclusive payable by the applicant.
Swinton J.
Lax J.
Nordheimer J.
DATE: August 15, 2012
CITATION: Anishinabek Police Service v. Public Service Alliance of Canada, 2012 ONSC 4583
DIVISIONAL COURT FILE NO.: 191/11 and 454/11
DATE: 20120815
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lax, SWINTON and nordheimer jj.
B E T W E E N:
anishinabek police service
Applicant
- and -
public service alliance of Canada, gordon simmons, sherrill murray and irv kleiner
Respondents
AND BETWEEN:
anishinabek police service
Applicant
- and -
public service alliance of Canada, OWEN SHIME, sherrill murray and irv kleiner
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: August 15, 2012