DATE20051129
DOCKET: C41825
COURT OF APPEAL FOR ONTARIO
BORINS, FELDMAN and GILLESE JJ.A.
B E T W E E N:
GREG HEASMAN AND TOM WHITEWAY
Martin J. Doane
for the appellants
Plaintiffs
(Appellants)
- and -
DURHAM REGIONAL POLICE SERVICES BOARD, CHIEF KEVIN McALPINE, DEPUTY-CHIEF CHUCK MERCIER and JIM ADAMS
C. Kirk Boggs and Christine P. Snow for the respondents
Defendants
(Respondents)
Heard: June 23, 2005
On appeal from the Order of Justice Victor Paisley, of the Superior Court of Justice, dated April 19, 2004.
FELDMAN J.A.:
[1] The appellants are police officers who claim that the police service that employs them, their chief, deputy chief and another officer treated them unfairly while disciplining them. The issue before the motion judge under Rules 20 and 21 was whether they could seek redress in the courts, or, because their claims are essentially related to discipline, whether civil action is precluded by the Police Services Act, R.S.O. 1990, c. P. 15, and the collective agreement in place between the parties.
[2] We agree with the conclusion of the motion judge that this case is not distinguishable from the decision of this court in Abbott v. Collins (2003), 2003 46127 (ON CA), 64 O.R. (3d) 789, that followed the Supreme Court of Canada decision in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, and, on that basis, the action must be dismissed.
FACTS ALLEGED IN THE STATEMENT OF CLAIM
[3] Based on a letter from an incarcerated informant, the appellants were assigned to investigate a “cold case” homicide that had occurred decades earlier. After they decided to use the informant as an agent, the informant told them that he had committed a violent crime in another country for which he had been charged, but had mounted a successful insanity defence and was eventually deported to Canada. The appellants decided not to follow up on this information right away, but to continue with the plan to apprehend the suspect in the cold case.
[4] As a consequence of their failure to immediately report the information obtained from the informant, the appellants were removed from the Major Crimes Unit. The appellants claim that the respondent Adams caused media stories to be published about them that were inaccurate and damaging to their reputations. They also claim that the respondents spread rumours about them in connection with their alleged misconduct, did not conduct a proper investigation of the matter and tried to destroy their careers as detectives. In October 2000, one day before the expiry of the limitation period, the appellants were charged under the Police Services Act with the offences of neglect of duty and discreditable conduct. The charges were eventually stayed on the appellants’ agreement to take a course of instruction of up to 24 hours’ duration. The appellants claim that by laying these charges the respondents committed another act of bad faith.
[5] The statement of claim in this action alleges: (a) breach of fiduciary duty, (b) negligent investigation, (c) unlawful interference with economic relations, (d) abuse of public office, (e) intentional infliction of mental distress, and (f) injurious falsehood/defamation.
ISSUES AND ANALYSIS
[6] The appellant’s main argument is that recent decisions of the Supreme Court of Canada, including Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185 (“Morin”), and Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, have modified that court’s decision in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, with the result that where a collective agreement is in place, the civil courts still retain jurisdiction to adjudicate certain disputes in employment cases.
[7] In our view, these cases do not assist the appellants. In Goudie, the Supreme Court held that the courts had jurisdiction over a dispute that arose out of a pre-employment contract between the plaintiffs and the city, which dispute, by definition, could not have arisen out of the collective agreement between the city and the union.
[8] In Morin, the issue was whether certain younger and less experienced teachers, who were exclusively affected by a negotiated change to the teachers’ collective agreement, were required to grieve their discriminatory treatment under the agreement on the basis that exclusive jurisdiction rested with the arbitrator, or whether they were entitled to complain to the Quebec Human Rights Commission under the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C-12. The Supreme Court held that because the dispute related more to the formation and validity of the collective agreement than to its interpretation and application, the dispute could be taken to the Human Rights Commission. In reaching its conclusion, the court looked at whether “the legislative mandate” (in that case, s. 100 of the Quebec Labour Code, R.S.Q., c. C-27) applied to the particular dispute at issue, referring to its decision in Regina Police Assn. at para. 39, which said:
To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature.
[9] In Goudie, the court also cited the Regina Police Assn. case with approval for the proposition that “if the dispute between the parties in its ‘essential character’ arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator appointed in accordance with the collective agreement, and not by the courts.” See Goudie, supra, at para. 23, referring to Regina Police Assn., supra, at paras. 23, 25.
[10] It is clear that in these recent cases the Supreme Court continues to approve its decision in Regina Police Assn. and, in particular, the articulation in that case of the proper approach to determining the legislative intent that indicates where any particular dispute is to be adjudicated.
[11] In Abbott v. Collins, the plaintiff Ontario Provincial Police (“OPP”) officers complained of disguised discipline. They argued, as in this case, that neither an arbitrator under the collective agreement nor the Police Commission under the Police Services Act had jurisdiction to address their claim, and, therefore, the court had the residual jurisdiction to do so. This court rejected that argument and analysis. It concluded that as in the Regina Police Assn. case, the intent of the legislature, in that case under the Police Services Act and the Public Service Act, R.S.O. 1990, c. P. 47, was to create a complete substantive and procedural code for discipline of police officers under the provisions of those Acts and of the collective agreement. In particular, matters of discipline were excluded from the collective agreement because they were dealt with under the Police Services Act.
[12] We agree with Paisley J. that although this case involves a municipal police service and not the OPP, it is not distinguishable from Abbott v. Collins. The appellants are members of the Durham Regional Police Service and as such they are bound by the Durham Regional Police Service Uniform Agreement. Article 5.01 of that agreement provides that discipline is a management right, subject to the application of the relevant provisions of the Act:
5.01 The Association acknowledges that it is the exclusive function of the Board to:
Maintain order and discipline, promote, demote or discipline members, provided that a claim of discriminatory promotion or demotion, or a claim that a member has been discharged or disciplined without reasonable cause, may be subject to an inquiry in accordance with the Police Services Act and amendments thereto, supervise and administer the affairs of the Durham Regional Police Service.
[13] The appellants are governed by Part V of the Police Services Act, which provides a procedure for the investigation and resolution of complaints regarding police officers and for the discipline of police officers through a hearing process. Section 74 under Part V defines when a police officer is guilty of misconduct. There is also a complaint process regarding the conduct of a chief of police. Part VIII of the Police Services Act, entitled “Labour Relations,” applies to municipal police forces (OPP labour relations are governed by the Public Service Act.). Section 126 under Part VIII prohibits collective agreements from affecting certain working conditions, including those governed by Part V of the Act, i.e. the part respecting the handling of complaints regarding the professional conduct of police officers.
[14] As in Regina Police Assn. and Abbott v. Collins, these provisions form a complete code regarding the discipline of police officers. The conclusion reached by this court in para. 33 of its decision in Abbott v. Collins regarding the OPP applies with appropriate modifications to the Durham police force as well:
The provisions of the Police Services Act and Regulations dealing with police discipline matters, and supplemented by s. 26(4) of the Public Service Act which deems discipline to be incorporated into the OPP collective agreement as a management right, form a complete code governing all discipline for the OPP. There is no gap which would give the Superior Court jurisdiction to hear the matter as a civil cause of action, the essential nature of which matter is discipline including disguised discipline.
[15] The motion judge also dismissed the appellants’ claim based on breach of fiduciary duty. He concluded that based on the pleadings, there was no basis to find that the respondents owed a fiduciary duty to the appellants, i.e. to act only in their interests in the disciplinary process. We see no error in this analysis. Furthermore, to allow the action to proceed based on breach of fiduciary duty would circumvent the statutory scheme for discipline matters, as well as the relevant provision of the collective agreement.
CONCLUSION
[16] The appeal is therefore dismissed with costs to the respondents fixed at $10,000 inclusive of disbursements and G.S.T.
Signed: “K. Feldman J.A.”
“I agree S. Borins J.A.”
“I agree E.E. Gillese J.A.”