COURT OF APPEAL FOR ONTARIO

CITATION: Skof v. Bordeleau, 2020 ONCA 729

DATE: 2020-11-17

DOCKET: C67874

Huscroft, Nordheimer and Harvison Young JJ.A.

BETWEEN

Matthew Skof and Ottawa Police Association

Plaintiffs/Responding Parties

(Appellant)

and

Charles Bordeleau and Ottawa Police Services Board

Defendants/Moving Parties

(Respondents)

Paul Champ, for the appellant

Ronald F. Caza and Marie-Pier Dupont, for the respondents

Heard: October 23, 2020 by video conference

On appeal from the order of Justice Marc R. Labrosse of the Superior Court of Justice, dated December 20, 2019, with reasons reported at 2019 ONSC 7418.

Nordheimer J.A.:

[1] Matthew Skof appeals from the order of the motion judge that dismissed his action under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the basis that the Superior Court of Justice did not have jurisdiction over the subject matter of the action. For the following reasons, I would allow the appeal, set aside the order below, and reinstate the appellant’s action.[^1]

I: Background

[2] The appellant is a police officer with the Ottawa Police Service. He is also the President of the Ottawa Police Association (“OPA”) and has been since he was elected to that position on December 15, 2011.

[3] On January 23, 2019, the Ontario Provincial Police (“OPP”) charged the appellant with certain offences under the Criminal Code. The OPP investigation was prompted by a written request from the respondent, Charles Bordeleau, who was then the Chief of Police of the Ottawa Police Service. On that same day, Bordeleau suspended the appellant pursuant to his authority under s. 89 of the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”).

[4] The appellant, along with the OPA, commenced an action on March 22, 2019 against the respondents. In that action, the plaintiffs claim declaratory relief, injunctive relief, and damages arising both from alleged breaches of the appellant’s Charter rights and also from an alleged misfeasance in public office by Bordeleau. Central to the issues in the action are the allegations that the actions of Bordeleau, in suspending the appellant, interfere with his ability to represent and assist the OPA and its members in a variety of ways, including collective bargaining, discipline, and grievance matters. It is also alleged that the suspension was motivated by improper purposes arising from a long history of animosity between the appellant and Bordeleau. It is further alleged that the actions of Bordeleau have undermined the appellant’s reputation.

[5] The respondents brought a motion to dismiss the action on the basis that the Superior Court of Justice does not have jurisdiction to entertain the claim. They assert that the issues raised are ones for determination under the collective agreement. Alternatively, the respondents say that the appellant had to seek relief under the PSA, or by way of judicial review. The motion judge agreed. He found, at para. 50:

Consequently, in any of these scenarios, the Superior Court does not have jurisdiction over the dispute and it is not for this Court to determine the proper venue for the dispute other than by making a determination that it is not by way of this Statement of Claim as drafted. The Plaintiff's claim is therefore dismissed.

[6] It appears that the motion judge’s finding that the appellant continued to be an employee of the Ottawa Police Service, during his secondment to the OPA, weighed heavily in the conclusion that he reached. Although the appellant does not dispute that he continued to be an employee, he submits that that fact does not inevitably lead to the conclusion that the motion judge reached.

II: The test under r. 21.01(3)(a)

[7] Because the parties raise the issue, I will briefly address the appropriate test to be applied when deciding a motion under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[8] The basic proposition applicable to r. 21.01(3)(a) can be stated fairly simply: either the Superior Court of Justice has jurisdiction over a claim or it does not. In deciding that issue, it must be remembered that the Superior Court of Justice, as a court of inherent jurisdiction, has jurisdiction over every conceivable claim unless (i) the claim does not disclose a reasonable cause of action or (ii) the jurisdiction has been removed by legislation or by an arbitral agreement: TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, aff’d 2010 SCC 62, [2010] 3 S.C.R. 585.

[9] Some prior authorities have debated whether it is appropriate to use the “plain and obvious” test under r. 21.01(3)(a). I do not think it is helpful to further that debate. It is clear that, in order to find that the Superior Court of Justice does not have jurisdiction to entertain a claim, it must be “clear and unequivocal” that the jurisdiction has been ousted: TeleZone, at para. 92. Unfortunately, the motion judge does not appear to have approached the motion before him with that principle in mind.

III: The collective agreement

[10] It is clear from the material filed in the record that, once the appellant was elected as President of the OPA, he was no longer subject to the collective agreement that otherwise governs all employees of the Ottawa Police Service. The collective agreement contains an express provision dealing with the status of officers who become executive officers of the OPA. Those officers are given a leave of absence from their duties as employees during their time with the OPA.

[11] In conformity with that provision, when the appellant became the President of the OPA, the OPA and the Ottawa Police Service signed a Memorandum of Agreement which provided, among other things, that aside from benefits, the collective agreement did not apply to the appellant during his time with the OPA. More specifically, clause 4 of that Memorandum of Agreement stated:

Aside from the Agreement provisions mentioned specifically in 3, above, all other provisions of the Agreement shall not apply to Mr. Skof during his secondment.

[12] The motion judge found that the Memorandum of Agreement, and Article 21 of the collective agreement, were in conflict. I do not agree that there is any such conflict. Article 21 provides for leaves of absence of up to three officers to be full-time executive officers for the OPA. It also provides that the OPA must reimburse the employer for costs associated with those leaves of absence, including salaries and benefits for the three officers. Finally, Article 21 provides that those employees are not subject to discipline under the collective agreement for duties relating to their activities on behalf of the OPA.

[13] The Memorandum of Agreement is consistent with Article 21, not in conflict with it. Indeed, the Memorandum of Agreement makes it even clearer that the collective agreement does not apply to the appellant in any respect, other than his salary and benefits.

[14] The result is that, while the appellant technically remained an employee of the Ottawa Police Service, he was expressly not subject to the collective agreement. He cannot, consequently, invoke the grievance procedure under the collective agreement to address his suspension, assuming that he would otherwise have had the right to do so. I should note that, although the appellant did, in fact, file a grievance at one point, I am satisfied that this was done out of an abundance of caution in case a contrary conclusion was ever reached. That fact does not impact on the proper interpretation of the contractual arrangements between the parties.

[15] The respondents attempt to avoid this result by contending that the “essential character” of the claim is one covered by the collective agreement. They seek to invoke the principles established in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, to bring the appellant’s claim within the collective agreement.

[16] I have already set out why the collective agreement does not have any application to this case, the principal reason being that the parties agreed that it would not. I would also note that McLachlin J. made it clear in Weber, at para. 67, that the “exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal”. This point was reiterated in Piko v. Hudson's Bay Co. (1998), 1998 6874 (ON CA), 167 D.L.R. (4th) 479 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 23, where Laskin J.A. said, at para. 11:

Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.

[17] In any event, I do not agree with the respondents that the essential character of the claim is related to the employment relationship. To the contrary, the essential character of the claim relates to disciplinary action taken by Bordeleau under his authority as Chief of Police. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, Bastarache J. explained that just because a person is an employee does not per se bring a given dispute within the collective agreement. Rather, if the dispute arises out of disciplinary action in a regulatory context, the dispute does not fall within the collective agreement or the jurisdiction of an arbitrator. In this case, as was the case in Regina Police Assn. Inc., it is clear that the Legislature intended that matters of discipline would be governed by the PSA, as I shall explain.[^2]

IV: The Police Services Act

[18] By virtue of s. 126 of the PSA, collective agreements between police services in Ontario and their employees are not entitled to address the statutory complaints system under Part V of the PSA, which includes the suspension power under s. 89. Consequently, the grievance procedure under the collective agreement could not have been used to challenge a suspension made under s. 89 of the PSA. That conclusion raises the issue of what remedy was then open to the appellant to challenge his suspension.

[19] The motion judge found, as an alternative route to the collective agreement, that the appellant “may fall under Part V of the PSA” but he did not identify how that fact provided any remedy to the appellant. There is no provision in the PSA that permits an officer to challenge a suspension ordered by a Chief of Police under s. 89. Notwithstanding that fact, the respondents maintain that the appellant could have sought relief from the Ontario Civilian Police Commission under Part V. However, they are unable to point to any provision in the PSA that would authorize the Commission to undertake such a review. Indeed, in the only decision of the Commission that the parties provided to us on this point, the Commission concluded that a suspension is not a penalty over which it has appellate jurisdiction.[^3]

[20] Consequently, the only remedy for a police officer who asserts that s/he has been subject to a suspension that is unlawful is to seek relief through the court process. That then raises the question as to the proper forum for seeking relief from the courts, i.e., can the appellant institute an action in the normal course or must he seek judicial review of the suspension decision, on the basis that the suspension power represents a statutory power of decision as defined in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.

V: Judicial Review

[21] On this point, the motion judge appears to have been of the view that the issues here could be addressed only by judicial review. As result, in his view, the appellant was not entitled to bring an action for such relief but, rather, had to pursue an application for judicial review to the Divisional Court. This led the motion judge to strike out the appellant’s action.

[22] With respect, the motion judge erred in so concluding. Assuming that the appellant’s action constitutes a claim for judicial review, there is nothing in the Judicial Review Procedure Act that precludes an aggrieved party from seeking relief by way of an action. Indeed, the Judicial Review Procedure Act contemplates that very possibility because it refers, in s. 8, to actions that seek relief in the nature of judicial review, and provides that a judge of the Superior Court of Justice can deal with such actions summarily, or can treat the action as an application for judicial review and refer it to the Divisional Court. I would note, on this point, that one reason why an aggrieved party might choose to bring an action, as opposed to an application for judicial review, is that in the former, unlike the latter, damages can be sought.

[23] In any event, the appellant’s action is not simply an action for judicial review. It is an action for different heads of relief including claims for damages for Charter breaches and for misfeasance in public office. In fact, read generously, the statement of claim appears to call into question whether Bordeleau had authority to use s. 89 to suspend the appellant, given his position. Put another way, it is an arguable question whether the appellant is “a police officer” to whom s. 89 applies.

[24] The end result is that it is not “clear and unequivocal” that the Superior Court of Justice does not have jurisdiction to entertain the appellant’s action for the relief that he seeks, given his circumstances and position, and the nature of his claims. The motion judge erred in concluding otherwise.

VI: Conclusion

[25] The appeal is allowed, the order below is set aside, and the action is reinstated as it relates to the appellant. The appellant is entitled to his costs of the appeal fixed in the agreed amount of $14,000, inclusive of disbursements and HST. In addition, as also agreed between the parties, the costs award made by the motion judge is reversed to now be in favour of the appellant.

Released: “GH” November 17, 2020

“I.V.B. Nordheimer J.A.”
“I agree. Grant Huscroft J.A.”
“I agree. Harvison Young J.A.”

[^1]: The Ottawa Police Association did not appeal from the motion judge’s decision. The action remains dismissed with respect to it. [^2]: See also Rukavina v. Ottawa (City) Police Services Board, 2020 ONCA 533. [^3]: Herridge v St. Thomas Police Service, 2007 ONCPC 5