Toronto Police Association v. Toronto Police Services Board
DIVISIONAL COURT FILE NO.: 415/12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND LINHARES DE SOUSA JJ.
BETWEEN:
TORONTO POLICE ASSOCIATION Applicant
– and –
TORONTO POLICE SERVICES BOARD Respondent
Kevin D. Toyne, for the Applicant
Michael A. Hines, for the Respondent
HEARD at Toronto: January 20, 2014
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (orally)
1Mr. Karklins was employed as a police officer with the Toronto Police Service. On June 27, 2006, he was convicted of discreditable conduct, contrary to Part V of the Police Services Act. The Hearing Officer imposed a penalty pursuant to what was then subsection 68(1)(b) of the Police Services Act. That provision read:
The chief of police may, under subsection 64(10),
(b) direct that the police officer be dismissed in seven days unless he or she resigns before that time.
2Mr. Karklins appealed the decision to the Ontario Civilian Police Commission on Police Services. The appeal was unsuccessful. Mr. Karklins then appealed to the Divisional Court. The Chief of Police erroneously believed that the Divisional Court had dismissed the appeal on January 15, 2010 and, as a consequence, sent Mr. Karklins a letter, dated January 18, 2010, that prematurely stated that, since the Divisional Court had dismissed his appeal, his employment would terminate effective January 22, 2010. This court in fact dismissed the appeal on January 29, 2010.
3Mr. Karklins gave notice of his “retirement” by way of a letter to the Toronto Police Service on February 5, 2010. The issue raised is whether the timing of that letter complied with the terms of subsection 68(1)(b). If it did comply, then Mr. Karklins is entitled, under the collective agreement, to receive one-half of his cumulative sick pay credits or approximately $30,000.
4The arbitrator ruled that Mr. Karklins’ letter was ineffective because it occurred on the seventh day or the same day that he was dismissed. That conclusion turns on the proper way of calculating the seven day period set out in subsection 68(1)(b).
5The first issue is the standard of review. The appellant submits that the standard is correctness and the respondent submits that the standard is reasonableness. In my view the appropriate standard of review to be applied is reasonableness.
6This is not a situation involving issues of jurisdiction. It is a situation where an arbitrator under the collective agreement is asked to determine whether a benefit under that collective agreement is available to Mr. Karklins. In resolving that issue, the arbitrator was required to interpret a section of the Police Services Act. I do not accept the applicant’s submission that the arbitrator was not interpreting his “home statute” and therefore correctness becomes the standard. This court has previously determined that an arbitrator’s interpretation of the Police Services Act is to be reviewed on the standard of reasonableness – see Toronto Police Assn. v. Toronto Police Services Board, 2013 ONSC 4511, [2013] O.J. No. 3071 (Div. Ct.) citing Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 34
7I also do not accept the applicant’s submission that the terms of the Police Services Act reveal an intention to rebut the principle that the reasonableness standard would apply. I find nothing in the wording of the Police Services Act that could sustain that conclusion. I also reject the applicant’s submission that a standard of correctness should apply because the issue raised here, that is the proper calculation of a time period, is one of central importance to the legal system as a whole. The particular time period with which we are concerned is of importance to police officers but it is not of importance to anyone else. Different statutes affecting different matters may contain different provisions for calculating time. For example, the Rules of Civil Procedure, contain provisions for calculating time in civil proceedings. The interpretation of the proper manner for calculating time under the Police Services Act does not have any impact outside of the scope of that particular statute.
8The issue then becomes whether the arbitrator’s determination that, in order to avoid the effect of s. 68, Mr. Karklins had to submit his resignation prior to February 5, is a reasonable one. In my view, the conclusion reached by the arbitrator was a reasonable one on the language of the statute. Indeed, I would go further and find that the arbitrator’s interpretation of the statute is correct. It accords with each of the necessary elements of the decision-making process, namely, justification, transparency and intelligibility.
9The wording of the section is clear. It provides that a police officer will be dismissed in seven days unless he or she resigns before that time. Consequently, once the seventh day arrives, the police officer is dismissed. In order to avoid that result, the officer must resign before the seventh day arrives. In this case, the Divisional Court dismissed Mr. Karklins appeal on January 29. The seven days started running on January 30. The seventh day was February 5. On February 5, Mr. Karklins was dismissed. In order to avoid that result, Mr. Karklins had to submit his resignation before February 5. Mr. Karklins did not do so. Consequently, Mr. Karklins failed to resign before he was dismissed.
10The applicant attempts to buttress its position by reference to s. 89 of the Legislation Act. That section deals with the calculation of time periods generally under provincial legislation. In my view, s. 89 does not assist the applicant for two reasons. One is that none of the provisions in s. 89 strictly apply to this situation given the particular wording of subsection 68(1)(b), that is, the use of the expressions “in” and “before”. That said, the time calculation that I have set out above, and the one that was adopted by the arbitrator, complies with the spirit of s. 89(3) by excluding the first day of the event, that is the day that the Divisional Court dismissed the appeal, and including the last day of the event, that is the effective date of the dismissal. What the applicant’s position fails to take into account is the fact that subsection 68(1)(b) expressly requires the officer to resign “before” that last date.
11Given the conclusions I have reached, I do not need to address the respondent’s argument that this application should be dismissed for delay.
12The application is dismissed.
KITELEY J.
COSTS
13I have endorsed the Application Record, “For oral reasons given, the application is dismissed. Applicant shall pay to the respondent costs in the amount of $6,000.00 as agreed by the parties.”
NORDHEIMER J.
KITELEY J.
LINHARES DE SOUSA J.
Date of Reasons for Judgment: January 20, 2014
Date of Release: January 24, 2014
CITATION: Toronto Police Association v. Toronto Police Services Board, 2014 ONSC 468
DIVISIONAL COURT FILE NO.: 415/12
DATE: 20140120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, NORDHEIMER AND LINHARES DE SOUSA JJ.
BETWEEN:
TORONTO POLICE ASSOCIATION Applicant
– and –
TORONTO POLICE SERVICES BOARD Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: January 20, 2014
Date of Release: January 24, 2014