2007 ONCA 742
DATE: 20071031
DOCKET: C46426 & C46429
COURT OF APPEAL FOR ONTARIO
MOLDAVER, LANG and LAFORME JJ.A.
BETWEEN:
TORONTO POLICE ASSOCIATION
Applicant (Respondent)
and
TORONTO POLICE SERVICES BOARD, CHIEF OF POLICE WILLIAM BLAIR, DEPUTY CHIEF OF POLICE JANE DICK, and STAFF SUPERINTENDENT TONY CORRIE
Respondents (Appellants)
Darrel A. Smith for the appellant, Toronto Police Services Board
Brian P. Bellmore for the appellants, Chief of Police William Blair, Deputy Chief of Police Jane Dick and Staff Superintendent Tony Corrie
Timothy S.B. Danson for the respondent
Heard: October 15, 2007
On appeal from the order of Justice Barbara A. Conway of the Superior Court of Justice dated December 13, 2006.
BY THE COURT:
[1] The central issue raised in this appeal is one of jurisdiction. Determination of this issue turns on whether the essential character of the dispute between the parties is one of contract, bringing it within the court’s jurisdiction, or one involving police discipline, placing it within the jurisdiction of the Toronto Police Services Board, pursuant to the Police Services Act, R.S.O. 1990, c. P.15.
[2] The motion judge found that the dispute was a contractual one and, accordingly, concluded that the matter was within the court’s jurisdiction. With respect, we take a different view. In our opinion, for the reasons that follow, the essential issue is one of police discipline that falls exclusively within the jurisdictional regime set out in the Police Services Act.
[3] The Chief of Police William Blair, Deputy Chief of Police Jane Dick and Staff Superintendent Tony Corrie (the individual appellants) and the Toronto Police Services Board (the Board) appeal from the order of the motion judge in which she dismissed the appellants’ motions to dismiss, strike or stay the application against them and to set aside the registrar’s order amending the notice of application.
[4] The respondent, the Toronto Police Association (TPA), initiated the application against the individual appellants and the Board pursuant to Rule 14.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking, amongst other relief, a declaration that there was a binding agreement between the TPA and the Board to resolve disciplinary charges.
[5] The alleged agreement resulted from a dispute that arose after certain police officers wore their police uniforms to a union rally in contravention of an explicit order of the Chief of Police. Following this conduct, certain of the individual appellants met with representatives of the TPA in an effort to resolve the disciplinary matters arising from the rally. The parties agreed to the forfeiture of three days pay. However, they are at odds about whether they also agreed that the penalty would not be used in relation to the officers’ future discipline proceedings and their future careers.
[6] In this case, subsequent to the disagreement about the terms and finality of the alleged agreement, a letter was sent to each officer involved advising of the terms on which the Chief proposed to resolve the discipline. His proposal set out the three-day penalty and the circumstances in which the penalty would be relevant to future personnel decisions. The letter advised the officers that they could either accept the proposed resolution in lieu of a hearing, or, if they decided not to accept the resolution, the matter would be referred for hearing pursuant to the Police Services Act.
[7] In response, the TPA’s solicitor advised the Chief’s solicitor that “each officer will decide” whether to accept the discipline or challenge any charges at a hearing. Subsequently, each officer signed an acceptance of the proposed resolution subject to an “Addendum” that the officers reserved their rights with respect to the enforceability of the alleged agreement between the TPA and the Board. None of the officers requested a hearing.
[8] Rather than pursuing relief under the Police Services Act, the Toronto Police Association brought these proceedings. The appellants responded to the application with motions brought pursuant to Rules 14, 21.01 and 25.11 to dismiss, strike or stay the application on grounds, amongst others, that the court was without jurisdiction to determine the matters in issue because they were governed by the Police Services Act.
[9] A few days prior to the return of the appellants’ motions, the TPA obtained an order from the registrar amending its application to add several claims in tort. In response, the appellants brought further motions to strike the amendments.
[10] In dismissing the appellants’ motions, the motion judge concluded that the existence, interpretation and enforceability of the terms of this agreement changed the essential nature of the dispute between the parties from one about police discipline to one of contract.
[11] In our view, the motion judge erred in characterizing the dispute as essentially one of contract. The error arose from her focus on the relief claimed in the application, rather than on the factual context and subject matter of the dispute.
[12] Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, which dealt with whether a dispute was properly the subject of a collective agreement, gives guidance on the proper approach to the characterization of the dispute. At paragraph 39, Justice Bastarache stated:
[T]he 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.
[13] As the court said in Regina Police Association, the characterization of the dispute is resolved by whether “the subject matter of the dispute expressly or inferentially is governed by the [statute].”[^1]
[14] The statutory scheme at issue in this case is the Police Services Act. Part V of that Act sets out a complete code with respect to police discipline. That code includes investigation of the complaint, a hearing of the complaint, a review of the chief’s decision by the Ontario Civilian Commission on Police Services (OCCOPS) and an appeal to Divisional Court. Section 58 also empowers the chief of police to resolve disciplinary matters by informal resolution, rather than proceed with discipline charges against officers, where it is determined that their conduct is not of a serious nature. In addition, under s. 73(1), OCCOPS has the jurisdiction to direct a chief of police to process a complaint or assign the review of a complaint to another police force. Section 64(7) provides for the hearing of a complaint.
[15] In our view, it is clear on the record that the essential character of this dispute involves discipline. We say this because, by the time the officers signed their consent to the discipline, they knew that the Chief intended that the disciplinary action could be used in relation to their future career aspirations.[^2] It was for this reason that the officers unilaterally qualified their consent. Accordingly, the focus of the dispute was essentially about the consequences of the discipline and not about the breach of an agreement. In other words, if the Chief had conceded that there would be no consequences for the officers’ careers, the dispute would have been over. The dispute about the purported agreement was relevant only to the extent it affected the overriding issue of the consequences of the discipline. As such, it stood to be resolved under the statutory scheme of the Police Services Act; it was not a matter for the courts.
[16] The respondent contends that the application, as amended, remains within the court’s jurisdiction because it also alleges several tort claims, including deceit, misfeasance in public office, negligent and/or fraudulent misrepresentation and abuse of public office. However, the tort claims were added only after the appellants brought their motion to dismiss. Importantly, although the respondent added the new causes of action, it did not amend the supporting affidavit, which only made bald speculative allegations in the nature of a conspiracy theory. In our view, these amendments were tactical and designed to obfuscate the true nature of the dispute.
[17] In any event, the respondent’s counsel conceded in argument that the tort issue raised in the amended application stands or falls with our determination of the essential issue between the parties. We agree. In our view, the additional tort relief claimed does not take the claim outside of its essential character as a matter of discipline.
[18] To recapitulate, the essential issue between the parties is one of discipline. The court is without jurisdiction. Accordingly, we would allow the appeal and dismiss the application in its entirety.
[19] We see no reason why costs should not follow the event. Costs of the appeal are awarded to the appellants in the agreed-upon total amount of $10,000, inclusive of disbursements and Goods and Services Tax. Costs of the motions below are also awarded to the appellants in the same agreed-upon total amount of $10,000, inclusive of disbursements and Goods and Services Tax.
RELEASED: OCT 31 2007 “M.J. Moldaver J.A.”
“MJM” “S.E. Lang J.A.”
“H.S. LaForme J.A.”
[^1]: Regina Police Association Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360 at para. 35. See also paras. 25 & 29.
[^2]: However, the use of that discipline is limited by the Police Services Act, s. 64(16), which provides that a discipline notation is expunged from an officer’s employment record after two years, provided there has been no intervening entries concerning misconduct or unsatisfactory work.