CITATION: Gulick v. Ottawa Police Service, 2012 ONSC 5536
COURT FILE NO.: 11-DV-1734
DATE: 2012/10/03
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Jeffrey Gulick, Applicant
AND
Ottawa Police Service, Respondent
BEFORE: Valin, Métivier and Aston JJ.
COUNSEL: Allan R. O’Brien, for the Applicant
Robert E. Houston, for the Respondent
HEARD at Ottawa: October 1, 2012
ENDORSEMENT
BY THE COURT:
[1] The applicant was a police officer employed by the Ottawa Police Service. On May 22, 2008, he was charged with a number of criminal offences after attacking and fleeing from four police officers who had come to his residence in response to a 9‑1‑1 call from a neighbour. Subsequently, he pleaded guilty to a charge of discreditable conduct under the Police Services Act[^1], (the “Act”).
[2] The Hearing Officer sentenced the applicant “to resign from this Police Service within seven days or be summarily dismissed”. The applicant appealed that sentence to the Ontario Civilian Police Commission (the “Commission”). The Commission upheld the sentence issued by the Hearing Officer and dismissed the appeal.
[3] This is an application for judicial review of the decision of the Commission. The issue on the application is whether the Commission’s decision upholding the applicant’s dismissal was an error of law, a breach of procedural fairness or unreasonable in light of the duty to accommodate set out in the Human Rights Code [^2], (the “Code”) and the Act.
[4] The applicant has suffered from bad temper and anger management problems throughout his adult life. On May 22, 2008, he failed a use of force test. He was required to surrender his weapon. He did not take his failure well. His temper erupted. Later in the day, the police were called to a domestic incident at his home. Four officers arrived at the scene.
[5] When informed that he was being arrested, the applicant’s temper erupted again. He assaulted all four officers and threatened to kill two of them. He reached for the gun of one of the officers. He tried to escape. The officers subdued him with a taser and took him to the hospital where he again escaped from custody, and again was subdued with a taser.
[6] There was no evidence that the applicant had consumed any alcohol at the time he was informed that he had failed the use of force test. By the time the incident in his home occurred later that afternoon, he had consumed some alcohol, although he did not appear to anyone to be intoxicated.
[7] During the sentencing hearing, evidence was introduced that the applicant began to abuse alcohol during his career as an Ontario Provincial Police (“OPP”) officer; that was at least twelve years prior to the incident on May 22, 2008. The applicant reported to his psychologist, Dr. John Goodman, that, on May 22, 2008 he had taken a number of medically prescribed drugs and some over the counter medications.
[8] On May 29, 2008, the applicant entered the Homewood Health Centre for treatment of alcohol dependence. During his treatment he disclosed a 12 year history of binge drinking and an addiction to prescription benzodiazepines. He was discharged after five weeks of treatment with a guarded but optimistic prognosis.
[9] The applicant sought further treatment and counseling at Rideauwood Addiction and Family Services in Ottawa and became a regular attendee at Alcoholics Anonymous meetings. He also saw Dr. Goodman, on ten occasions between the date of the incident and February 18, 2009. During those visits, Dr. Goodman discovered that the applicant was suffering from post traumatic stress disorder resulting from previously undisclosed events that had occurred during his career as an OPP officer.
[10] The relevant sections of the Code are:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.
(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.[^3]
(2) No tribunal or court shall find a person incapable unless it 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.
(3) In determining for the purpose of subsection (2) whether there would be undue hardship, a tribunal or court shall consider any standards prescribed by the regulations.
[11] The relevant sections of the Act are:
- (1) Subject to subsection (2), if an employee 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 employee, or retire him or her if entitled to retire, if, after holding a hearing at which the evidence of two legally qualified medical practitioners is received, the board,
(a) determines on the basis of that evidence, that the employee is mentally or physically disabled and as a result incapable of performing the essential duties of the position, and what duties the employee is capable of performing; and
(b) concludes that the employee’s needs cannot be accommodated without undue hardship on the board.
[12] This legislation makes it clear that the Hearing Officer and the Commission were only obliged to consider a duty to accommodate if there was evidence the applicant was under a disability because of his alcohol and drug related problems.
[13] As noted earlier, Dr. Goodman is a psychologist. During his testimony, he expressed the opinion that the applicant’s use of alcohol and prescription and over the counter medications on May 22, 2008 produced a toxic psychosis, and that the applicant’s behavior on that date was a function of his toxic state due to his inability to maintain rational thought or judgment.
[14] We are not confident that Dr. Goodman was properly qualified to express such an opinion. In any event, the Hearing Officer rejected that opinion. We find that his reasons for doing so were sound and correct.
[15] While the incident giving rise to the disciplinary hearing did involve some consumption of alcohol and medications, the Hearing Officer found as a fact that the incident was triggered by anger management issues with which the applicant had been struggling for several years. The Hearing Officer found that alcohol was, at most, an exacerbating factor. We are not aware of any jurisprudence which has established that anger management issues will support a finding of disability.
[16] Addiction arising from alcoholism and/or drug abuse or post traumatic stress disorder may amount to a disability within the meaning of the Code. However, the onus on a person claiming a disability is to prove it. There was some evidence that the applicant was addicted to alcohol and some medically prescribed drugs. There was also some evidence that the applicant was suffering from post traumatic stress disorder. However, there was no evidence that any of those conditions rendered him unable to perform any aspect of his job description. Indeed, quite the opposite was claimed. In submitting through his counsel that the appropriate penalty was simply a demotion, the applicant took the position that he was able to perform and carry out his essential employment duties.
[17] Submissions of counsel are not evidence. Closing submissions inviting the Hearing Officer to consider an issue for which there is no supporting evidence are simply submissions. There was no evidence that the applicant was disabled. In those circumstances, the Hearing Officer had no obligation to consider a duty on the Ottawa Police Service to accommodate the applicant.
[18] This is an application for judicial review of the decision of the Commission upholding the penalty of “resignation within seven days or dismissal” imposed by the Hearing Officer. The standard of review on the issue of whether the penalty imposed was appropriate is reasonableness.[^4]
[19] The Hearing Officer concluded that he was not persuaded by the evidence that the applicant could safely return to policing. The Commission found that there was a clear and direct path of evidence to support that conclusion. We find that the Commission’s decision to uphold the penalty imposed by the Hearing Officer was reasonable.
[20] The application is dismissed. On agreement of counsel, the respondent is entitled to its costs on the partial indemnity scale which we fix in the amount of $10,000, inclusive of disbursements and HST. Those costs are payable within 30 days.
Mr. Justice G. Valin
Madam Justice M. Métivier
Mr. Justice D. Aston
Date: October 3, 2012
CITATION: Gulick v. Ottawa Police Service, 2012 ONSC 5536
COURT FILE NO.: 11-DV-1734
DATE: 2012/10/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: Jeffrey Gulick, Applicant
AND
Ottawa Police Service, Respondent
BEFORE: Valin, Métivier and Aston JJ’s
COUNSEL: Allan R. O’Brien, for the Applicant
Robert E. Houston, for the Respondent
ENDORSEMENT
By the Court
Released: October 3, 2012
[^1]: R.S.O. 1990, c. P.15 [^2]: R.S.O. 1990, c. H.19 [^3]: R.S.O. 1990, c. H.19, s. 17(1); 2001, c. 32, s. 27(5) [^4]: Hall v. Ottawa Police Service (2008), 2008 65766 (ON SCDC), 93 O.R. (3d) 675 at para. 46.