Court File and Parties

CITATION: Dolan v. Ontario Civilian Commission on Police Services, 2011 ONSC 6720

COURT FILE NO.: 237/10

DATE: 20111122

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: DOLAN v. ONTARIO CIVILIAN COMMISSION ON POLICE SERVICES

BEFORE: Justices Aitken, Swinton and Hoy

COUNSEL: Kevin D. Toyne, for the Applicant Glenn P. Christie, for the Respondent Regional Municipality of Peel Police Services Board

HEARD at Toronto: October 21, 2011

ENDORSEMENT

Swinton J.

[1] The applicant, Stephen Dolan, is an Inspector with the Peel Police Services and a member of the Peel Senior Officers’ Association (“SOA”). He brought several grievances against the Regional Municipality of Peel Police Services Board alleging harassment and abuse of management rights, which the SOA refused to take to arbitration. Pursuant to the collective agreement, only the SOA can refer an officer’s grievance to arbitration.

[2] At the applicant’s request, the Solicitor General appointed a conciliator and then an arbitrator pursuant to ss. 123 and 124 of the Police Services Act, R.S.O. 1990, c. P.15 (“PSA”). In a decision dated February 3, 2010, Arbitrator Fisher dismissed the applicant’s grievances because the SOA had not taken carriage of them. The applicant seeks judicial review of that decision.

[3] The applicant argues that the standard of review is correctness, because the arbitrator was determining a matter of general law that was not within his particular expertise. I disagree. The arbitrator was required to interpret the provisions of the PSA dealing with labour relations and to do so in light of the provisions of the collective agreement dealing with the grievance process. He described the issue before him as the determination of the applicant’s standing to proceed to arbitration, a matter that was within his jurisdiction and field of expertise. Therefore, the standard of review is reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 54).

[4] In my view, the decision is reasonable, as it is consistent with the wording of the collective agreement, the statute and decisions of other arbitrators.

[5] Subsection 124(1) of the PSA provides:

If the conciliation officer reports that the dispute cannot be resolved by conciliation, either party may give the Solicitor General and the other party a written notice referring the dispute to arbitration.

[6] The governing collective agreement sets out a grievance procedure, but Article 25.01 states that it is made “[s]ubject to the rights and procedures provided by and under the Police Services Act.” The applicant argues that the PSA gives him a right to proceed to arbitration, as he is a “party” within s. 124(1). He also points to s. 128, which provides that agreements, decisions and awards made under Part VIII bind the board and members of the police force. Part VII of the PSA deals with labour relations.

[7] The arbitrator adopted the reasoning in two other arbitration awards in which the arbitrators held that the PSA does not confer a right on an individual officer, represented by a police association, to arbitrate a grievance against the employer: Lafrance v. North Bay Police Services Board (Starkman) (unreported, January 9, 2009) and Thunder Bay Police Services Board and Mauro (Snow) (unreported, December 14, 2009).

[8] The arbitrator in the present case quoted extensively from the Snow award and concluded (at p. 4), “Inspector Dolan is not permitted to arbitrate any of the issues raised in the grievances against his employer without the SOA having carriage of the matters.” In my view, that is a reasonable conclusion. When one reads the term “party” in s. 124 in the context of Part VIII of the PSA, the “parties” to this arbitration were the parties to the collective agreement - the Police Association and the Police Services Board.

[9] The applicant argues that the arbitrator erred in failing to apply the decision of the Court of Appeal in Renaud v. Town of LaSalle Police Association, 2006 23904. In that case, the Court determined that the Superior Court lacked jurisdiction over a dispute between a police officer and the Police Service because the dispute arose out of the employment relationship (at para. 5). In response to an argument that the officer would be deprived of any forum to have his complaints against his police association heard, the Court of Appeal stated (at para. 7 of its endorsement):

We cannot accept the position of the appellant that he had no forum to which to bring his complaint that the Association improperly refused to bring his grievances before an arbitrator under the Collective Agreement. Section 123(1) of the Act provides that at the request of a “party”, a conciliation officer shall be appointed if a difference arises between the “parties”. The respondents accept that that forum is or was available to the appellant. We agree that the word “party” should be given a broad and liberal interpretation in order to facilitate the intention of the legislature that the Act together with the Collective Agreement provide a complete and comprehensive scheme for police officers relating to their employment relationship.

[10] In this passage, the Court of Appeal was not addressing the issue of an individual police officer’s standing to pursue a grievance against his employer through arbitration in the absence of support from his police association. Rather, the Court appears to be addressing the issue of the police association’s duty of fair representation and the ability of the individual officer to pursue, through arbitration, a complaint against the association that the duty has been breached. That is the interpretation that has been given to Renaud in each of the three arbitration awards which have discussed Renaud, including the one under review. In my view, the interpretation is correct.

[11] For these reasons, the application for judicial review is dismissed. Costs to the respondent are fixed at $4,000.00 inclusive of HST and disbursements, which is an amount that is fair and reasonable in the circumstances.

Swinton J.

Aitken J.

Hoy J.

Released: November 22, 2011