CITATION: Chambers v. Chatham-Kent Police Services Board, 2007 ONCA 414
DATE: 20070605
DOCKET: C45481
COURT OF APPEAL FOR ONTARIO
SIMMONS and MACFARLAND JJ.A. and PARDU J. (ad hoc)
BETWEEN:
JOHN M. CHAMBERS
Applicant (Respondent)
and
CHATHAM-KENT POLICE SERVICES BOARD
Respondent (Appellant)
Christopher Riggs, Q.C. and Glenn P. Christie for the Chatham-Kent Police Services Board
David S. Thompson for John M. Chambers
Heard: February 22, 2007
On appeal from the judgment of Justice E.R. Browne of the Superior Court of Justice dated May 15, 2006.
PARDU J. (ad hoc):
I. Overview
[1] John M. Chambers held the position of Deputy Chief of Police with the Chatham-Kent Police Services Board (the “Board”), pursuant to a written contract dated September 18, 2002. Article 6.01 of the contract provided that his appointment would terminate on the happening of any one of a number of events, including “automatically on the expiration of this Agreement, December 31, 2005, except that the term of the appointment may be extended by mutual agreement.”
[2] Mr. Chambers’ contract was not extended or renewed, and he brought an application for a declaration that the contract was void. He argued that: (i) the expiry of the fixed-term contract, pursuant to article 6.01(b), was a form of dismissal not authorized by the Police Services Act, R.S.O. 1990, c. P.15; and, (ii) the duration of the fixed-term contract was so short as to undermine the independence necessary for the office of a deputy chief, and the expiry provision was therefore void on public policy grounds.
[3] At para. 19 of his reasons the application judge concluded that, in the circumstances of this case, the fixed-term provision in Mr. Chambers' contract is void. He said:
[19] In the present case I have found a contract of 3 years 3 months to be invalid. I do not wish my conclusion to stand for a proposition that contracts of such length are void. The time duration is a factor to be considered in the context of all of the material. In the context of this case I have concluded that this time limitation in this contract in all of the circumstances is more likely than not a colourable device to effect termination without reason or any form of due process. As such, as did Justice Rutherford with regard to a notice clause in Re Police Services Board of the City of Pembroke and Kidder (1995), 22 O.R. (3d) 663 (Gen. Div.), I find this duration provision void and unenforceable. I find in the result all of Article 6 of the 2002 contract severable.
[4] The application judge accordingly made the following order:
THIS COURT DECLARES that Article 6.01(b) of the Agreement between the Applicant and the Respondent dated September 8, 2002 is void and unenforceable and is severed from that Agreement;
THIS COURT DECLARES that the Applicant continues to hold the office of Deputy Chief of Police of the Chatham-Kent Police Service.
II. Issues
[5] The Board appeals from the judgment below and argues that the application judge erred in concluding:
That article 6.01(b) was a colourable device to effect a termination of Mr. Chambers’ appointment contrary to the provisions of the Police Services Act; and
The effect of the operation of article 6.01(b) was a termination of Mr. Chambers’ appointment that was contrary to the Police Services Act.
[6] A third issue raised on appeal by the respondent is whether the duration of the fixed-term contract is so short as to undermine the independence necessary for the office of a deputy chief.
[7] A fourth issue raised in this appeal is that of remedy. As an alternative remedy, Mr. Chambers sought a declaration that he “continues to hold office as a police officer and member of the Chatham-Kent Police Service after December 31, 2005.” If article 6.01(b) is held to be valid and Mr. Chambers’ appointment as Deputy Chief expires, the issue is whether he nevertheless continues to hold office as a police officer and member of the Chatham-Kent Police Service.
III. Background
[8] Mr. Chambers has been a police officer for approximately 34 years and has served in the Chatham-Kent area since 1981. He was Chief of the Tilbury Police Service from 1995 to 1998 when the Tilbury Police Service amalgamated with other regional police services to form the Chatham-Kent Police Service. At that time, Mr. Chambers was appointed to the rank of Staff Inspector. Subsequently, on November 13, 2000, he was appointed Deputy Chief. His first written contract, dated December 1, 2000, was not for a fixed term but was terminable on death or conviction for defined offences. That agreement was amended on various occasions to modify Mr. Chambers’ salary and benefits.
[9] Article 6.01 of Mr. Chambers’ amended contract dated September 18, 2002 added the impugned provision automatically terminating his appointment on December 31, 2005. Article 6.01 provides as follows:
ARTICLE 6 - TERMINATION
6.01 The Deputy Chief's appointment will terminate upon the happening of any of the following events:
a) automatically upon the Deputy Chief’s death;
b) automatically on the expiration of this Agreement, December 31, 2005, except that the term of the appointment may be extended by mutual agreement. In the event an extension is considered, the Deputy Chief will be notified before September 30, 2005 and discussions will commence immediately following such notice;
c) by the Board, without notice or pay in lieu thereof for a conviction of a major offence under the Act, or a conviction for a serious offence under the Criminal Code. [Emphasis added.]
IV. The Application Judge's Reasons
[10] Relying on the authority of Chambly (City) v. Gagnon, 1999 703 (SCC), [1999] 1 S.C.R. 8, and Rossmo v. Vancouver (City) Police Board, [2003] B.C.J. No. 2761 (C.A.), the application judge concluded that a deputy chief of police may be employed pursuant to a time-limited contract. However, he also found this principle was subject to a caveat, namely, that "a fixed term contract not be a colourable device such as a colourable device for bypassing discipline provisions or due process provisions of police legislation." He said"[s]uch a colourable device would have the result of achieving in an indirect manner that which may be incapable of achievement directly."
[11] The application judge also noted the decision of Rutherford J. in Pembroke (City) Police Services Board v. Kidder, supra, in which a thirty-day termination provision for a police chief was struck down, but a ten-year fixed term contract was upheld. In particular, the application judge noted that Rutherford J. "pointed out that a short term might constitute an indirect mechanism to give a board a power of dismissal without reasons or hearing."
[12] Concerning this case, the application judge concluded that article 6.01(b) was just such a mechanism designed to give the Board a power of dismissal without due process. In addition to setting out his conclusion at para. 19 of his reasons, the application judge said the following:
[15] The material does not support that the time limitation of the 2002 agreement was a colourable device to avoid disciplinary action nor was that argument advanced. It cannot however be said that the time limitation is without artificiality. The original appointment was November 13, 2000 absent contract and was without time limitation. The first contract in draft form had a time limitation but was objected to and in the result the executed agreement was without such a provision.
[16] There is no evidence as to why the time limitation to which the applicant agreed found its way into the 2002 agreement. There is some evidence that the contemplated staff changes were initiated absent participation or knowledge of the applicant who had a front line position of responsibility for administrative matters including budget.
[17] My conclusion is that it is more likely than not that the duration in the 2002 agreement was put in the agreement for a colourable reason. The three year and three month term in the context of the prior history, the obligation for an annual process dealing with compensation, suggests an ulterior motive contrary to the principles discussed by Justice Rutherford. In the result I find the term in the 2002 contract for termination December 31, 2005 to be "an indirect mechanism to give a municipal board the power to dismiss a (deputy) chief without reasons or a hearing by not renewing the contract". In the result, I conclude that Article 6.01 (b) to the agreement of September 18, 2002 is void and not enforceable and is severable from the balance of the agreement.
V. Analysis
i) Did the application judge err in concluding that article 6.01(b) is a colourable device to effect a termination of Mr. Chambers’ appointment contrary to the provisions of the [Police Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)?
[13] The application judge was correct in holding that there was no evidence in the record concerning why the December 31, 2005 expiry date became a part of Mr. Chambers’ contract. However, there was evidence indicating that the Board included a provision for a fixed-term appointment in its proposal for the terms of his original contract, that Mr. Chambers refused to agree to the fixed-term appointment at that time, but that he subsequently agreed to a fixed-term appointment in a revised contract in which his salary and benefits were enhanced. Significantly, there was also uncontradicted evidence on the application that Mr. Chambers’ contract was not renewed or extended because the Board wanted to reduce the number of administrative positions forming part of the police service and use the savings for front-line police services.
[14] As I will explain, the responsibilities of a police services board include determining the objectives and priorities of a police service and establishing policies for the effective management of the service. As such, the functions of a board properly include determining the number of police personnel that should be involved in management. Moreover, unless prohibited by statute or on public policy grounds, entering into a fixed-term contract with a chief or deputy chief appears to be an appropriate mechanism for allowing a board to properly carry out its important functions.
[15] Viewed in this context, in my opinion, there was simply no evidence on the application capable of supporting the application judge’s conclusion that article 6.01(b) of Mr. Chambers’ contract was a colourable device to enable the Board to effect a termination of his contract contrary to the provisions of the Police Services Act. It is apparent from the history of Mr. Chambers’ contract negotiations that the Board began seeking his agreement to a fixed-term appointment from the outset. While there was some evidence that the contemplated staff changes were initiated without Mr. Chambers’ knowledge or participation, these matters were properly within the purview of the Board’s authority. Moreover, there was no evidence that the changes were under consideration at the time article 6.01(b) was added to the contract.
[16] In the circumstances, I conclude that the application judge erred in holding that the termination date was put in the agreement for a “colourable reason” or for an “ulterior motive” as there was no evidence capable of supporting such a finding.
ii) Did the application judge err in concluding that the effect of the operation of article 6.01(b) was a termination of Mr. Chambers’ appointment that was contrary to the [Police Services Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p15/latest/rso-1990-c-p15.html)?
[17] The Police Services Act specifies the procedures to be followed when attempting to terminate the position of any police officer, including a deputy chief of police[^1]. However, in Chambly (City) v. Gagnon, supra, at page 9, the Supreme Court of Canada held that the expiry of a fixed-term contract does not constitute dismissal:
In this case there was no dismissal since the City did not carry out any act which deprived the respondent of his office or post; his post as chief of police ended owing to the expiry of the fixed term set out in his contract of employment without a new contract being entered into.
[18] Accordingly, article 6.01(b), which provides for the expiry of Mr. Chambers’ appointment as deputy chief at the conclusion of a fixed-term contract, is not contrary to those provisions of the Police Services Act governing the termination or dismissal of police officers.
iii) Is the duration of Mr. Chambers’ fixed-term contract so short as to undermine the independence necessary for the office of a deputy chief?
[19] The respondent submits that short-term contracts, or contracts terminable on short notice, undermine the independence required of police officers. More specifically, the respondent argues that the duration of his contract was so short as to undermine the independence necessary for the office of a deputy chief.
[20] In Chambly (Ville) c. Gagnon, [1997] A.Q. No. 2256 at para. 20, the Quebec Court of Appeal, noted the tension between fixed-term contracts and police independence[^2]:
The expiration of the contract of agreement of the chief of police is a sword of Damocles that ill accommodates the independence desired. The closer it gets the thinner the rope becomes and the blade sharper. There are strong odds that a complacency as culpable as it is understandable will soon come to the aid of the mayor’s son who persists in running red lights! It is precisely this type of situation that the legislature wanted to extenuate.
[21] The issue of fixed-term contracts and police independence also arose in Pembroke (City) v. Kidder, supra. Rutherford J. held that a provision for termination on 30 days’ notice of the appointment of Chief of Police Kidder was void, although the ten-year term of his appointment was not an unreasonable balance of the need for independence and the possibility of change.
[22] Ontario’s Police Services Act does not explicitly refer to fixed-term contracts but provides in s. 31(1)(d) that the board shall:
recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account.
[23] The separate duties of a chief of police and a police services board are described in ss. 41(1) and 31(1), (2) and (6) of the Police Services Act:
41.(1) The duties of a chief of police include,
(a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31(1);
(b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force;
(c) ensuring that the police force provides community-oriented police services;
(d) administering the complaints system in accordance with Part V.
31.(1) A board is responsible for the provision of adequate and effective police services in the municipality and shall,
(a) appoint the members of the municipal police force;
(b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality;
(c) establish policies for the effective management of the police force;
(d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their
remuneration and working conditions, taking their submissions into account;
(e) direct the chief of police and monitor his or her performance;
(f) establish policies respecting the disclosure of chiefs of police of personal information about individuals;
(g) receive regular reports from the chief of police on disclosures and decisions made under section 49 (secondary activities);
(h) establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50;
(i) establish guidelines for dealing with complaints made under Part V;
(j) review the chief of police’s administration of the complaints system under Part V and receive regular reports from the chief of police on his or her administration of the complaints system.
31.(2) The members of the police force, whether they were appointed by the board or not, are under the board’s jurisdiction.
31.(6) The board may, by by-law, make rules for the effective management of the police force. [Emphasis added.]
[24] Sections 31(3) and (4) also speak to the relationship between the board and the chief:
31.(3) The board may give orders and directions to the chief of police, but not to other members of the police force, and no individual member of the board shall give orders or directions to any member of the police force.
31.(4) The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force.
[25] Sections 31(3) and (4) are consistent with the common law principle that a police officer conducting a criminal investigation is independent of the control of the executive government. In R. v. Campbell, 1999 676 (SCC), [1999] 1 S.C.R. 565, Binnie J. noted:
[27] The Crown’s attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement. A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes.
[29] It is … possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown. In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminal investigation, and in that regard the police are independent of the control of the executive government. The importance of this principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forces as long ago as McCleave v. City of Moncton (1902), 1902 73 (SCC), 32 S.C.R. 106. That was a civil case, having to do with potential municipal liability for police negligence, but in the course of his judgement Strong C.J. cited with approval the following proposition, at pp. 108-9:
Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted are derived from the law, and not from the city or town under which they hold their appointment.
[26] In the case before us, the duration of the contract was three years and three months. In my view, the duration is not inconsistent with the independence necessary for the office of a deputy chief.
[27] Notwithstanding the concerns raised by the respondent about the danger of short-term contracts compromising police independence, there is no evidence that the fixed-term contract operated to undermine Mr. Chambers’ independence as Deputy Chief in the conduct of criminal investigations or that anyone used the fixed term as a weapon to inappropriately influence the decisions made by him.
[28] I also note that s. 32 of the Courts of Justice Act, R.S.O. 1990, c. C.43, while not completely analogous, provides for a three-year renewable term for deputy judges of the Small Claims Court:
32.(1) A regional senior judge of the Superior Court of Justice may, with the approval of the Attorney General, appoint a lawyer to act as a deputy judge of the Small Claims Court for a term of three years.
32.(2) A regional senior judge of the Superior Court of Justice may renew the appointment of a deputy judge for one or more three-year terms.
[29] Similarly, in Hewat v. Ontario (1998), 1998 3393 (ON CA), 37 O.R. (3d) 161, this Court declared that an Order-in-Council purporting to terminate the appointment of a member of the Labour Relations Board before the expiry of a three-year fixed-term appointment was null and void. However, there was no suggestion by the Court that the three-year term was inconsistent with the independence and impartiality required of tribunal members.
[30] In the course of its reasons, the court in Hewat referred to Valente v. R., 1985 25 (SCC), [1985] 2 S.C.R. 673 at 698, which dealt with provincial court judges, where Le Dain J. said:
The essence of security of tenure for the purposes of s.11(d) [of the Charter] is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by an Executive or other appointing authority in a discretionary or arbitrary manner.
[31] While s. 32 of the Courts of Justice Act and Hewat relate to the tenure of deputy judges and tribunal members, not police officers, they do give context to the assessment of the validity of the duration of the fixed-term contract in this case.
[32] In conclusion, since the expiry of the fixed-term contract was not a dismissal and the fixed-term contract does not in itself undermine the criminal investigation independence of the Deputy Chief, the judgment of the application judge must be set aside.
iv) What is the appropriate remedy?
[33] Before his appointment as Deputy Chief, Mr. Chambers was a Staff Inspector with the Chatham-Kent Police Service. There is no evidence that Mr. Chambers was expressly dismissed or resigned from the Chatham-Kent Police Service when he became Deputy Chief in November 2000.
[34] As previously noted, Mr. Chambers asked in the alternative for a declaration that he continues to hold office as a police officer and member of the Chatham-Kent Police Service. It was unnecessary for the application judge to decide this issue since he held that Mr. Chambers continued to hold the position of Deputy Chief.
[35] Section 116(1) of the Police Services Act provides:
116.(1) If there is a dispute as to whether a person is a member of a police force or a senior officer, any affected person may apply to the Commission to hold a hearing and decide the matter.
[36] Since s. 116(1) provides that the Commission is empowered to decide that question, there is no purpose in remitting this matter to the Superior Court for a new hearing on that issue.
[37] In the result then, the judgment below is set aside, with costs of the appeal to the appellant fixed at $7500.00 inclusive of disbursements and applicable G.S.T.
RELEASED: June 5, 2007 “JS”
“G. Pardu J. (ad hoc)”
“I agree J. Simmons J.A.”
“I agree J. MacFarland J.A.”
[^1]: See the following provisions of the Police Services Act: s. 64, s. 65 and s. 68 (unsatisfactory work performance or misconduct); s. 47 (mental or physical disability); s. 25 (following investigation or inquiry by the Ontario Civilian Commissioner on Police Services); and s. 40 (abolishment or reduction in size of a police force).
[^2]: This portion of the decision was cited (and translated) in para. 92 of Rossmo v. Vancouver, [2001] B.C.J. No. 2698 (S.C.). The Quebec Court of Appeal’s decision was ultimately reversed by the Supreme Court of Canada.