Court File and Parties

CITATION: Toronto Police Services Board v. Toronto Police Association et al., 2020 ONSC 6923

DIVISIONAL COURT FILE NO.: 270/19

DATE: 20201113

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Penny and Favreau JJ.

BETWEEN:

Toronto Police Services Board Applicant

– and –

Toronto Police Association and Sheri Price Respondents

COUNSEL:

Michael A. Hines and Nisha Dhanoa, for the Applicant

Mark Wright, for the Respondent, Toronto Police Association

No one appearing for the Respondent, Sheri Price

HEARD at Toronto by videoconference: June 29, 2020

Reasons for Decision

Favreau J.

Overview

[1] The Toronto Police Services Board (the “TPS”) seeks to judicially review an arbitration award reinstating an employee dismissed for cause. The employee is a parking enforcement officer with the TPS (the “grievor”). Following an off-duty incident involving her domestic partner, the grievor was charged with assault. The Crown dropped the charges, but the TPS dismissed the grievor for reasonable cause after conducting its own investigation. The dismissal was based on the TPS’s view that the grievor’s conduct had potentially damaged its reputation.

[2] The Toronto Police Association (the “Association”) brought a grievance against the TPS. The grievance went to arbitration. The arbitrator reinstated the Grievor, finding that there was no basis for the TPS’s contention that the grievor’s conduct had potentially harmed the TPS’s reputation.

[3] The TPS argues that the arbitrator’s decision was unreasonable because:

a. The arbitrator focused on whether there was actual harm to the TPS’s reputation rather than potential harm;

b. The arbitrator failed to consider that the grievor had recently completed a 10 day suspension from her employment due to an impaired driving conviction; and

c. The arbitrator did not give proper consideration to the grievor’s history with alcohol and the role alcohol consumption played in the incident giving rise to her discharge.

[4] For the reasons below, the application for judicial review is dismissed. The arbitrator’s decision is reasonable. Reading the decision as a whole, it is evident that the arbitrator considered whether the grievor’s conduct potentially harmed the TPS’s reputation and not just whether there was actual harm. The arbitrator also considered the prior suspension and the role of alcohol. The TPS is essentially asking this Court to re-weigh the evidence. That is not the role of the Court on an application for judicial review.

Background

Employment background

[5] The grievor started working as a parking enforcement attendant for the TPS in December 2014.

[6] Before the incident leading to her termination, the TPS had disciplined the grievor for a prior incident. In August 2017, the grievor was charged with impaired driving and driving “over 80”. In October 2017, the grievor was convicted of the charges. Following the conviction, the TPS suspended the grievor without pay for 10 days. The suspension ran from November 15 to 28, 2017.

December 10, 2017 incident

[7] On December 10, 2017, which was soon after the end of the 10 day suspension, the grievor was charged with domestic assault.

[8] On Saturday, December 9, 2017, the grievor and the woman with whom she lived went to a nightclub in Toronto. During the evening, the grievor and her partner got into an argument. The grievor tried to walk away but her partner pinched her hard on the stomach leaving a substantial bruise. The grievor then told her partner that they were “over” and to leave her alone.

[9] The grievor left the nightclub around 2:00 am or 2:30 am. At that point, her partner was still at the club. While the grievor had her own apartment, she wanted to get back to her partner’s apartment to get her keys and things she needed for work. She took an “Uber pool” to get to her partner’s apartment. There was a lot of traffic and she fell asleep in the car, but she believes that she arrived around 4:00 am.

[10] When the grievor got to the apartment, her partner was in the bedroom. While the grievor tried to retrieve her belongings, her partner assaulted her. The grievor was on the floor, with her partner kicking and punching her. The partner then started having a panic attack, after which the grievor talked to her partner to try to calm her down.

[11] Sometime later, around 6:00 am, the grievor asked her partner if she could stay in the apartment to rest before going back to her own place. Her partner agreed. The grievor fell asleep. She woke up approximately 45 minutes later, at which point her partner was making a pile of the grievor’s belongings. The women got into a verbal altercation, after which the partner grabbed a kitchen knife and told the grievor to get out of the apartment. While the grievor tried to pick up her belongings, her partner started throwing things out the apartment door and threatened to throw them off the balcony.

[12] The grievor and her partner then yelled at each other through the apartment door, with the grievor standing in the hallway. The grievor yelled that she wanted her belongings and her partner yelled that she would throw the rest of the grievor’s belongings over the balcony and that she would get the grievor fired that Monday.

[13] The grievor called 911. The 911 dispatcher told the grievor to go wait in the lobby of the apartment, which she did. The police arrived around 8:00 am. Officers spoke to the grievor and her partner separately. The police told the grievor that they would both be charged with domestic assault. Ultimately, only the grievor was charged with domestic assault on December 10, 2017.

TPS investigation and dismissal

[14] On December 11, 2020, the TPS placed the grievor on an administrative suspension without pay, advising her that it intended to investigate serious misconduct, referring to the domestic assault charges.

[15] The Crown withdrew the charges on April 25, 2018 on the basis that there was no reasonable prospect of conviction. In reaching this conclusion, the Crown considered that the grievor sustained more injuries than her partner, the grievor’s partner did not want the matter to proceed and the grievor completed multiple session of domestic counselling that included an alcohol treatment component.

[16] After the Crown withdrew the charges, the TPS started its own investigation. The investigation concluded that the grievor engaged in “discreditable conduct” defined as “act[ing] in a disorderly manner or a manner prejudicial or likely to bring discredit upon the reputation of the police force”. The TPS terminated the grievor’s employment on December 3, 2018 on the basis of the December 10, 2017 incident and the grievor’s prior discipline history.

Arbitration award

[17] The Association grieved the termination, taking the position that the TPS disciplined and discharged the grievor “without reasonable cause” contrary to article 3.0.1 of the collective agreement.

[18] The matter went to arbitration.

[19] The arbitration took place over two days. Only two witnesses were called to testify. The Association called the grievor. The TPS called a Labour Relations Analyst with the TPS who was involved in the decision to terminate the grievor.

[20] The arbitration award was released on March 15, 2019.

[21] In her decision, the arbitrator reviewed the evidence related to the December 10, 2017 incident. She stated that all of the evidence came from the grievor, and that there was little conflict between the statements she had given during the investigation and her evidence at the hearing

[22] In her analysis, the arbitrator acknowledged a disagreement between the parties over the meaning of “reasonable cause” in the collective agreement and whether it gives the TPS more latitude for terminating an employee than “just cause”. The arbitrator found that she did not have to decide this issue because the grievor’s conduct did not meet the threshold for any kind of discipline.

[23] The arbitrator stated that the test for discharging an employee based on off-duty conduct was the “well-established test” in Millhaven Fibres Ltd. and Oil, Chemical & Atomic Workers International Union, Local 9-670, [1967] O.L.A.A. No. 4. While Millhaven sets out different circumstances when an employer can dismiss an employee for off-duty conduct, the parties agreed that the applicable test in this case is whether the conduct harmed the company’s reputation:

… if the discharge is to be sustained on the basis of a justifiable reason arising out of conduct away from the place of work, there is an onus on the company to show that:

(i) The conduct of the grievor harms the company’s reputation or product.

[24] Based on her analysis of the test and the evidence, the arbitrator found that the evidence failed to prove that the grievor’s off-duty conduct on December 10, 2017 “harmed or threatened to harm the Employer’s reputation”. The arbitrator reinstated the grievor to her position without loss of seniority, benefits or compensation, subject to mitigation.

Standard of review

[25] There is no dispute between the parties that the applicable standard of review is reasonableness.

[26] Pursuant to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the guiding principles for deciding whether a decision is reasonable include the following:

a. Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints.

b. The party challenging the decision has the burden of showing that it is unreasonable. A court should not set aside a decision based on minor flaws or peripheral shortcomings. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision.

c. The role of the court is to review the decision and not to decide the issue afresh. The focus of the reasonableness inquiry is therefore on the decision making process and the outcome.

d. It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings.

Analysis

[27] The arbitrator reinstated the grievor because she found that the evidence did not establish that the off-duty conduct harmed or threatened to harm the TPS’s reputation and therefore there was no disciplinable conduct.

[28] There is no dispute between the parties that actual harm or potential harm to the TPS’s reputation was the test to be applied by the arbitrator to the threshold issue of whether there was disciplinable conduct. The TPS argues that the arbitrator’s decision is unreasonable because the arbitrator focused on whether the grievor’s behaviour caused actual reputational damage rather than focusing on its potential reputational damage. The TPS also argues that the arbitrator failed to consider the grievor’s alcohol consumption and her prior impaired driving conviction in assessing the potential damage to the TPS’s reputation.

[29] As reviewed below, I do no accept these arguments. It is clear from a complete review of the arbitration award that the arbitrator assessed the potential for reputational damage and not just whether there was actual damage to the TPS’s reputation. In addition, the arbitrator did consider the role of alcohol consumption and the grievor’s discipline history. Overall, the arbitrator conducted a careful review of the evidence and the law. Her conclusion that the grievor’s conduct did not give rise to a risk of reputational damage is well supported, transparent and intelligible based on the evidence before her.

The arbitrator had regard to actual and potential reputational harm

[30] The TPS argues that the arbitrator improperly focused on whether the grievor’s conduct caused actual harm to its reputation rather than potential harm to its reputation. In making this argument, the TPS relies on specific sentences in the arbitration award:

a. Paragraph 83: “However, the grievor was not convicted. Nor is there any other evidence that what happened in the apartment came to the attention of members of the public, such that it would reflect negatively on the Employer,”

b. Paragraph 83: “Given that the evidence neither establishes that the grievor committed an offence or that any wrongdoing by her came to the attention of the public, I cannot conclude that the grievor’s conduct at her former partner’s apartment risked harming the reputation of the Toronto Police Service.”

c. Paragraph 86: “First, although she was in a somewhat public place when she was standing outside her partner’s apartment, there is no evidence that anyone observed the grievor.”

d. Paragraph 87: “Even if someone did hear the grievor yelling, there is no evidence that such a person would have or could have known that it was the grievor who was yelling or that the grievor was an employee of the Toronto Police Service.”

e. Paragraph 90: “Again, there is no evidence that the grievor did anything untoward in the lobby such that her arrest could detrimentally affect the Employer’s reputation. Nor is there evidence that anyone observed the grievor being arrested or, if they had, that they would have or could have known that the grievor was an employee of the Toronto Police Service.”

[31] These findings cannot be looked at in isolation. When reviewing the whole decision, it is evident that the arbitrator was aware that she was to consider the potential for reputational harm and that she did in fact consider the potential for reputational harm. Looking at the analysis section as a whole, the arbitrator structured her analysis by first looking at whether the grievor’s conduct caused actual reputational harm to the TPS and then whether it caused potential reputational harm. The isolated sentences selected by the TPS are located in the portion of the analysis dealing with whether there had been actual reputational harm.

[32] The arbitrator starts her analysis by accurately describing the test she was to apply as including consideration of whether the grievor’s conduct posed potential risk of harm to the TPS’s reputation:

In cases involving off-duty conduct, the “modern approach’ is to focus on whether the employee’s conduct is sufficiently business-related in that it can be proved to be prejudicial or harmful to the Employer’s legitimate business interests: Badder Bus, above, at para. 27. The fundamental question is the “extent to which the conduct has the potential for significant detrimental impact on the employer’s business reputation or ability to operate its business effectively, not whether the employee works in a particular class of employment or has engaged in immoral or illegal behaviour.” (Badder Bus, above, at para. 27)

Where reputational harm is relied upon to discharge an employee for off-duty conduct, arbitrators should exercise “special care” that the employer does not have “excessive concern” with its public reputation: Emergency Health Services Commission, above, as cited in WCB, above at para. 36. As Arbitrator Lanyon stated in WCB, above, at para. 41, the proper approach to assessing the potential impact of the grievor’s conduct on the employer’s reputation is to consider what a “fair-minded and well-informed member of the public” might think.

In the case at hand, the Employer argues that it was justified in discharging the grievor based on the first criterion in Millhaven Fibres, namely, that her off-duty conduct on December 10, 2017 had the potential to harm the Employer’s reputation. However, having carefully considered the matter, I find that the evidence does not bear this out. [emphasis added]

[33] The arbitrator went on to consider all of the circumstances of the incident to determine whether the grievor’s conduct harmed the TPS’s reputation.

[34] At paragraphs 79 to 82, the arbitrator considered the TPS’s argument that the grievor showed poor judgment in returning to the apartment to get her keys. The arbitrator found that, whether the grievor exercised poor judgment or not by going to the apartment was irrelevant because the evidence overwhelmingly favoured a finding that the grievor was not the aggressor.

[35] At paragraph 83, parts of which the TPS relies on to argue that the arbitrator only considered actual damage to its reputation, the arbitrator considered the fact that the grievor was not convicted of a domestic assault. She stated that a conviction would be a matter of public record and could therefore potentially harm the TPS’s reputation. It was in this context, that the arbitrator stated that there was no conviction and no “other evidence that what happened came to the attention of members of the public, such that it could reflect negatively on the Employer”. She then concluded “[g]iven that the evidence neither establishes that the grievor committed an offence or that any wrongdoing by her came to the attention of the public, I cannot conclude that the grievor’s conduct at her former partner’s apartment risked harming the reputation of the Toronto Police Service”.

[36] The arbitrator went on to consider the TPS’s argument that a conviction was not necessary for the grievor’s conduct to potentially harm the TPS’s reputation. The arbitrator acknowledged that even if the grievor was not convicted of domestic assault, her behaviour could still damage or potentially damage the TPS’s reputation. However, given her finding that the grievor did not commit an assault, the behaviour inside the apartment could not give rise to reputational harm.

[37] At paragraphs 85 to 87, the arbitrator then considered whether the verbal altercation in the hallway could have harmed the TPS’s reputation. Again, the TPS relies on specific sentences in these paragraphs to argue that the arbitrator improperly focused on actual reputational damage because she found that there was no evidence that anyone heard the altercation and, even if they did, that they would have known that the grievor was employed by the TPS as a parking enforcement officer.

[38] However, immediately after this section of the analysis, the arbitrator explicitly addresses the issue of whether the grievor’s conduct had the potential to harm the TPS’s reputation. Having found that there was no evidence of actual harm to the TPS’s reputation, she also found that, based on all of the factual circumstances, there was no potential risk of harm to the TPS’s reputation:

I agree with the Employer that it is not required to produce specific objective evidence of damage to its reputation in the sense that it is not required to call members of the public to testify that they observed the grievor on the night in question and that their estimation of the Employer was lowered by what they observed. In my view, however, there does need to be a sufficient evidentiary basis upon which I might find that the grievor’s actions had the potential for “significant detrimental impact” on the Employer’s reputation (Badder Bus, above, at para. 27). Such a basis does not exist in the absence of any evidence that anyone heard the grievor or, if they did, knew that she was employed by the Employer.

In any event, as noted above, the ultimate test is what a fair-minded and well-informed member of the public might think about the Employer based on the grievor’s conduct. If such a person had observed the grievor in the hallway of the apartment building. I suppose s/he might have thought that the grievor was behaving inappropriately, yelling at her partner through a door early on a Sunday morning, potentially disturbing others. However, I am not persuaded that a fair-minded well-informed person would think less of the Toronto Police Service for continuing to employ a parking enforcement officer who was yelling at her partner to give her back her “stuff” during an obvious domestic dispute.

[39] Based on my review of the decision, it is clear that the arbitrator had regard to both actual and potential reputational damage to the TPS. The passages that the TPS focuses on to argue that she only considered whether there was actual harm cannot be looked at in isolation. The arbitrator considered and applied the correct legal test in determining that the grievor’s off-duty conduct was not disciplinable. She first considered whether there was actual harm to the TPS’s reputation. She then considered, as she was required to do, whether a fair-minded well-informed person would think less of the TPS. Her reasoning on this issue is reasonable in the sense that it is internally coherent and it is consistent with the law and her factual findings.

The arbitrator had regard to the issue of alcohol consumption and the grievor’s discipline history

[40] The TPS argues that the arbitrator failed to have regard to the role of alcohol in the December 10, 2017 incident and thereby failed to make the link between that incident and the grievor’s prior 10 day suspension for the driving while impaired conviction. Specifically, the TPS’s position is that the grievor shows a pattern of poor judgment linked to her consumption of alcohol, and that the arbitrator failed to have regard to how this linked both incidents and how this poor judgment justified a finding that the grievor’s conduct risked harming the TPS’s reputation.

[41] This argument amounts to an attempt to get the Court to re-weigh the evidence. Contrary to the TPS’s argument, the arbitrator did have regard to the role the grievor’s alcohol consumption had in the December 10, 2017 incident, but she made a factual finding that the grievor’s conduct was not attributable to intoxication:

As noted above, the Employer invites me to conclude that the grievor made a series of poor decisions and behaved in a publicly embarrassing manner on December 10, 2017 because her judgment and control had been impaired by alcohol. However, I cannot infer from the evidence that the grievor acted in the manner she did because she had been drinking. In my view, any errors in judgment the grievor may have made were just as likely due to the fact that this was an emotionally fraught situation. The grievor was in the midst of breaking up with the partner with whom she had been for approximately one year, she had been physically attacked and it was the middle of the night. I know the grievor’s evidence that she had a number of beers. I also know that she felt she was “under the influence” of alcohol, which I take it to mean that alcohol was affecting her to some extent. However, that is as far as it goes. Certainly, in all of the circumstances, there is no evidentiary basis upon which I might conclude that any particular actions on the part of the grievor were attributable to the fact that she was intoxicated.

In any event, whether the grievor was “under the influence” or had “drunk to excess” on the night in question, the evidence does not establish that the grievor’s conduct put the Employer’s reputation at risk. In my view, the grievor’s non-disciplinable off-duty conduct is not converted to disciplinable conduct simply because the grievor may have been under the influence of alcohol to a greater or lessor extent on the night in question. [emphasis added]

[42] Having made these findings of fact, it was reasonable for the arbitrator not to consider the grievor’s prior conviction for impaired driving. If alcohol played no significant role in the December 10, 2017 incident, then the prior conviction was not relevant. The arbitrator made reference to the grievor’s disciplinary record earlier in her decision. She was certainly aware of it and she was aware of the TPS’s arguments on this issue. But it was open to her not to link the two incidents given her finding that the grievor’s conduct was not attributable to intoxication.

[43] The TPS argues that the arbitrator should have had regard to a letter written by the grievor’s family doctor in which she said that the grievor was “suffering from alcohol intoxication” on December 10, 2017 and that, while she is not an alcoholic, she has amnesiac episodes when she drinks three or more drinks in an evening. As reviewed above, the arbitrator made a factual finding that the grievor’s actions were not attributable to intoxication. This was a factual finding that was open to her on the evidence.

[44] The TPS also argues that the arbitrator made an error in failing to consider that, in dropping the charges against the Grievor, the Crown was under the mistaken impression that the program the grievor completed included an alcohol treatment component. In her decision, the arbitrator referred to the grievor’s evidence that the program did not include an alcohol treatment program and therefore she made no error in this respect. More significantly, given the arbitrator’s finding that the grievor’s actions were not attributable to intoxication, whether the grievor previously participated in an alcohol treatment program or not is irrelevant.

[45] Again, the TPS is seeking to have this Court re-weigh the evidence before the arbitrator. This is not the Court’s role. The arbitrator conducted a careful analysis of the law and she then applied the law to the facts. Her reasoning is internally logical and consistent, and it is well supported by the facts and the law.

Conclusion

[46] For the reasons above, the application for judicial review is dismissed.

[47] As agreed between the parties, as the successful party, the Association is entitled to costs of $7,500 all inclusive.

Favreau J.

I agree _______________________________

Sachs J.

I agree _______________________________

Penny J.

Released: November 13, 2020