Villamar Delvalle v. Toronto Police Association, 2025 ONSC 315
CITATION: Villamar Delvalle v. Toronto Police Association, 2025 ONSC 315
DIVISIONAL COURT FILE NO.: 411/24
DATE: 20250114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, O’Brien JJ.
BETWEEN:
OMAR VILLAMAR DELVALLE
Applicant
– and –
TORONTO POLICE ASSOCIATION
Respondent
Self Represented
Lauren Pearce and Nini Jones for the Respondent
HEARD at Toronto by video conference: December 9, 202
Reasons For Judgment
Backhouse J.
Overview
[1] The Applicant, Omar Villamar Delvalle, seeks judicial review of Arbitrator David Starkman’s Award, dated June 24, 2024 (the “Decision”). The Decision dismissed the Applicant’s complaint under the Police Services Act[^1] that the Toronto Police Association (the “Association”) violated its duty of fair representation by not grieving his termination of employment by the Toronto Police Services Board (the “Employer”) and the withdrawal of his benefits from the Central Sick Leave Bank (“CSLB”). For the reasons set out below, I would dismiss the application.
Background
[2] The Applicant was employed by the Employer as a civilian Parking Enforcement Officer. During his employment, the Applicant was a member of the Association, and the terms and conditions of his employment were governed by the Collective Agreement.
[3] On April 16, 2018, the Applicant attended work under the influence of alcohol. He was criminally charged with impaired driving, refusal to provide a breath sample, and resisting a police officer. When the Applicant was initially charged, he was suspended by the Employer without pay.
[4] In March 2019, he was convicted of impaired driving and refusal to provide a breath sample.
[5] The Applicant was diagnosed with “alcohol use disorder”. The Association assisted him in being placed on medical leave and receiving benefits from the CSLB. In September 2019, the Applicant began attending the in-patient program for the treatment of alcohol use disorder at Homewood Health Centre; however, due to continued use of alcohol, he did not complete the program. The Applicant “attended a number of counselling sessions and out-patient programs to assist with his alcohol use disorder,” some of which also dealt with major depressive disorder.
[6] In September 2021, the Applicant was advised that due to his lack of compliance with his alcohol use disorder treatment, his CSLB benefits were being suspended. In response, the Association filed a grievance on behalf of the Applicant. In the spring of 2022, the Association negotiated a last chance agreement with the Employer because the Employer had indicated its intention to terminate the Applicant’s employment. The last chance agreement had certain conditions and the Applicant objected to the conditions of abstaining from alcohol and random urine and blood testing. The Applicant refused to sign the last chance agreement.
[7] In September 2022, the Employer terminated the Applicant’s employment, and the Association did not grieve this termination. The Association also withdrew their previous grievance that they had submitted on behalf of the Applicant regarding the suspension of his CSLB benefits.
Relevant Provisions
[8] The PSA does not contain an express duty of fair representation. Instead, the Association owes its members, including the Applicant, a duty of fair representation at common law. The duty of fair representation mirrors the statutory duty under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”)[^2].
[9] An alleged breach of the duty of fair representation falls within the exclusive jurisdiction of an arbitrator appointed under the PSA. Arbitrators in this context have adopted the principles and procedures applicable to duty of fair representation complaints developed by the Ontario Labour Relations Board.[^3]
[10] The duty of fair representation requires that a union or association not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of the members of the bargaining unit. The Ontario Labour Relations Board and arbitrators appointed under the PSA have interpreted these terms as follows:
(a) "arbitrary” means conduct which is capricious, implausible, or unreasonable in the circumstances. This is often demonstrated by a failure by the union to properly direct its mind to a situation, or to conduct a proper and meaningful investigation when one appears to be called for;
(b) "discriminatory” means distinguishing between or treating employees differently without good reason;
(c) "bad faith" is conduct motivated by hostility, malice, or dishonesty.[^4]
The Decision
[11] In the Decision, the Arbitrator found that the Association had not breached its duty of fair representation and dismissed the application. The Arbitrator found that “at all times” when the Association engaged with the Applicant, the Association “endeavored to assist him, negotiated with the Employer and produced a last chance agreement which would have returned Mr. Delvalle to the workplace.” The Decision acknowledged the Applicant’s concerns with the last chance agreement; however, it still found no issue with the manner in which the Association proceeded in light of these concerns: “[n]othing in its actions indicate that it proceeded in a manner that was arbitrary, discriminatory or in bad faith.”
Issues
• Is the Decision that the Association did not breach its duty of fair representation reasonable?
• Was the Arbitrator biased in the Decision?
Court’s Jurisdiction
[12] The Divisional Court has jurisdiction to hear applications for judicial review under ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”).
Standard of Review
[13] There is a presumption that the standard of review for the substantive review of administrative decisions is reasonableness.[^5]
Applicant’s Position
[14] The Applicant makes no submissions directly with respect to whether the Decision is reasonable. In his factum, the Applicant argued that the Arbitrator should have recused himself because he had not dealt with a duty of fair representation matter in a long time. He further argued in his factum that the Arbitrator relied on Hill v. C.U.P.E., Local 793, 2006 CarswellOnt 9304 (OLRB) when the LRA states that it does not apply “to a member of a police service within the meaning of the Community Safety and Policing Act, 2019.” The Applicant argues that the Decision ignored the Applicant’s concerns over human rights violations surrounding last chance agreements and undue hardship. The Applicant also criticizes the Decision for failing to acknowledge his “basic right to severance/termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41.”
The Decision that the Association did not Breach its Duty of Fair representation is Reasonable
[15] The Arbitrator was an experienced labour arbitrator, including in the specialized area of police labour relations. There was no reason for him to recuse himself nor was this raised at the arbitration.
[16] The content of the duty of representation is the same, whether it arises at common law (as in the case of the PSA) or expressly in the LRA. Consistent with virtually every other duty of fair representation decision rendered under the PSA, the Arbitrator adopted and applied the robust body of jurisprudence developed by the Ontario Labour Relations Board.
[17] The Arbitrator concluded that the Applicant was terminated for cause as a result of significant work-related misconduct. No severance or pay in lieu of notice of termination is owed in those circumstances.
[18] The Employer started taking steps to terminate the Applicant’s employment after his criminal convictions in March, 2019. The record supports that the Association was extensively involved in supporting the Applicant by getting him placed on medical leave, getting him into treatment for alcohol use disorder in the hope of returning him to work and getting him onto CSLB.
[19] The Applicant first when to Homewood Health Centre for residential treatment in September, 2019 which was unsuccessful due to his continued abuse of alcohol. There was a disagreement about the appropriate approach to treatment. The Applicant did not agree with total abstinence and had concerns with in-patient treatment.
[20] In consultation with the Employer and the Association, a second attempt was made to admit the Applicant to Homewood in January, 2021. He was about to be admitted when he elected not to go. He produced a letter from his psychologist as well as his family physician which described his reported concerns with and the inefficacy for him of in-patient treatment. Neither of the letters suggested, however, that the Applicant could manage alcohol without total abstinence.
[21] The Employer’s in house medical advisor as well as the Applicant’s own treatment advisors subsequently came to a consensus that the Applicant’s disorder required that he pursue total abstinence in the context of a residential setting.
[22] The Applicant took out-patient courses to assist him with alcohol use disorder but continued to have problems with alcohol consumption. Given the significant amount of time the Applicant had to pursue treatment consistent with the medical recommendations and on his own, he still remained completely disabled due to alcohol use disorder and unable to return to work.
[23] In September, 2021 the manager of the Employer’s Wellness Unit wrote to the Applicant to advise that in light of his ongoing drinking and significantly elevated liver enzymes and the medical consensus that he needed to complete in-patient rehabilitation treatment, his CSLB benefits were being suspended due to his non-compliance with treatment. The Association grieved the suspension of CSLB benefits.
[24] In the spring of 2022, the Employer indicated its intention to terminate the Applicant’s employment. The Association negotiated a last chance agreement with the Employer premised on the Applicant successfully completing an in-patient rehabilitation program and receiving a positive medical prognosis for ongoing abstinence and then a return to active work. The agreement provided for the reinstatement of benefits retroactive to the first day of attendance at the in-patient program. The agreement was to be in place for two years and the Applicant was to be subject to random testing during that time period.
[25] The Applicant declined to engage in in-house treatment as well as the testing contemplated by the agreement. In those circumstances, the Employer terminated the Applicant’s employment in September 2022. The Association explained to the Applicant that there was no prospect of successfully grieving the termination and the discontinuance of benefits and declined to do so.
[26] By this point, the Applicant had been accommodated for four years. The evidence demonstrates that the Association supported the Applicant and took steps to ensure that he received accommodations in employment while seeking treatment for alcoholism. Unfortunately, the Applicant was unwilling to complete the recommended course of treatment and in spite of years of his preferred treatment approach, continued to consume alcohol to a degree that rendered him incapable of returning to work.
[27] The Arbitrator did not ignore the Applicant’s concerns about the Employer’s settlement offer, and its requirement that he attend in-patient treatment, abstain from alcohol, and submit to a time-limited period of random testing. The Applicant had expressed the same concerns to the Association at the time. The Association concluded that the Employer’s settlement offer was reasonable in the circumstances and the Arbitrator reasonably accepted that the Association’s process and determinations did not breach the duty of fair representation.
[28] The Applicant submitted that he raised concerns before the Arbitrator that his human rights were violated by the last chance agreement which the Arbitrator did not deal with.
[29] The last chance agreement must be viewed in the context of the accommodations the Applicant received over a four year period and the Employer’s decision to terminate his employment due to non-compliance with treatment. While the last chance agreement would likely not have been the Association’s preferred approach from the beginning of the case, it did not violate the Applicant’s human rights, given the Employer’s determination to terminate his employment and the long period of time the Association supported him during which he continued consuming alcohol at a problematic level.
[30] A bargaining agent has no obligation to take every grievance to arbitration. One of the key roles, given its finite resources, is to make the tough decisions about which grievances will proceed.[^6] While the Applicant may disagree with the Association’s assessment of its case, that is not sufficient to ground a breach of the duty of fair representation or find a human rights violation.
The Arbitrator was not Biased in the Decision
[31] The Applicant submits that the Decision focused on the Applicant’s alcohol use disorder and did not mention any of his other significant mental health conditions which created a bias influencing the Arbitrator’s Decision favouring the Association.
[32] The Arbitrator did not ignore the Applicant’s other mental health diagnoses. The medical evidence before the Arbitrator confirmed that the Applicant had a history of anxiety, depression, and/or post-traumatic stress disorder, which were linked to and triggers for his alcoholism. However, the medical evidence also established that alcoholism was the primary condition rendering the Applicant unable to work, and the condition in respect of which he was receiving inadequate treatment. Alcoholism was always the focus of the discussions between the Applicant, the Association, and the Employer and, consequently, is the focus of the Decision.
[33] The Applicant appears to allege that his being male is relevant to the Association’s decision-making in his case. He contrasts his circumstances with that of another member, who was female, whose termination was successfully grieved by the Association. The circumstances of that case were very different; the member was terminated for off duty conduct and, while she had consumed alcohol, there was no indication that she had an alcohol use disability. This gender-based discrimination argument was not raised before the Arbitrator and, in any event, is devoid of merit.
[34] There is no basis to use only the Applicant’s initials in this decision as he has requested.
Conclusion
[35] The Decision was reasonable. There was no bias or human rights violation. The Application is dismissed.
Costs
[36] In accordance with the agreement of the parties, there is no order of costs.
Released January 14, 2025
Backhouse J.
I agree _______________________________________
Matheson J.
I agree: _______________________________________
O’Brien J.
CITATION: Villamar Delvalle v. Toronto Police Association, 2025 ONSC 315
DIVISIONAL COURT FILE NO.: 411/24
DATE: 20250114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Matheson, O’Brien JJ.
BETWEEN:
Omar Villamar Delvalle v. Toronto Police Association
REASONS FOR JUDGMENT
Released: January 14, 2025
Backhouse J.
[^1]: Until April 2024, labour relations in the policing sector was governed by the Police Services Act, 1990, c. P.15 (“PSA”), the legislation applicable to the duty of fair representation complaint at issue. The PSA has since been repealed and replaced by the Community Safety and Policing Act, 2019, S.O. 2019, c.1, Sched.1.
[^2]: Canadian Merchant Service Guild v. Gagnon et al, 1984 18 (SCC), [1984] 1 SCR 509.
[^3]: Lafrance v North Bay Police Association, [2009] OLAA No 675 (Starkman);Alessandroni v Toronto Police Association, Unreported, July 15, 2016 (Anderson).
[^4]: Allessandroni at para.4.
[^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), at para. 23.
[^6]: See Phillip Agnel v United Steel, 2019 35725 (OLRB), at para. 4, where the Ontario Labour Relations Board dismissed a duty of fair representation complaint against a trade union in similar circumstances.