Court File and Parties
CITATION: The Durham Regional Police Association v. The Durham Regional Police Services Board, 2021 ONSC 1607
OSHAWA DIVISIONAL COURT FILE NO.: DC-1219/20
TORONTO COURT FILE NO.: 522-20
DATE: 20210312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R. S. J., Pattillo and Lederer JJ
BETWEEN:
THE DURHAM REGIONAL POLICE ASSOCIATION
Applicant
– and –
THE DURHAM REGIONAL POLICE SERVICES BOARD
Respondent
Joshua Phillips and Geoff Cross, for the Applicant
Ian Johnstone and Alex Sinclair, for the Respondent
HEARD: January 29, 2021
Reasons for Decision
LEDERER, J.
[1] Ryan Bolton is a police constable. He is employed by the the Durham Regional Police Services Board (the “Board”) and represented by the applicant, the Durham Regional Police Association (the “Association”). Constable Bolton has been continuously employed by the Board since July, 1999. In 2010, work related injuries resulted in a diagnosis of Post-Traumatic Stress Disorder, for which he qualified for Workplace Safety and Insurance Board benefits. From 2015 to 2017, he was periodically absent from work while in receipt of those benefits. On March 28, 2017, he began a gradual return to work program. He was unable to work full-time hours. As a result, the return-to-work program was revised worked a half-time schedule of five hour shifts for four days per week. For these reduced hours, the Board paid him for the hours he worked. The Workplace Safety Insurance Board paid him in respect of the further five hours of what, for Ryan Constable Bolton, was a normal shift.
[2] Between July and September 2017, Constable Bolton took off 18 days of annual leave and 7 days of statutory holidays. When he took this time off, the Board as the employer, debited his “annual leave banks” for both the hours worked and the hours “missed”, the latter being the hours accounted for by payment from the Workplace Safety Insurance Board. In other words, the Board deducted 10 hours from Ryan Constable Bolton’s accumulated vacation banks for each of the 25 days taken as annual leave or statutory holidays. The Association took the position that Constable Bolton should only have 5 hours deducted for each shift he took off; that is only the time he worked should be accounted for. The Board did not agree and the Association filed a grievance on behalf of Constable Bolton. The grievance was referred to arbitration.[^1]
[3] The grievance was heard on June 5, 2019. The Arbitrator rendered her decision on August 9, 2019. She dismissed the grievance. In doing so, she identified the issue:
The issue before me is very narrow. There is no dispute between the parties that the Grievor is entitled to his full vacation statutory holiday entitlement provided in the collective agreement. The issue is whether the Board violated the collective agreement when it deducted 10 hours of vacation and statutory holiday leave from the Grievor’s annual leave banks for each of the Grievor’s vacation days and statutory holidays.[^2]
[4] And rendered her decision saying, in part:
The Grievor’s entitlement to receive WSIB benefits is governed by the Workplace Safety and Insurance Act, not the collective agreement. Accordingly, in that sense, it is true that the Grievor has a separate entitlement to WSIB. He is entitled to be compensated through WSIB for the hours that he is unable to work due to his injury. However, the Grievor also has an entitlement under the collective agreement to pay for time not worked in the form of annual leave and statutory holidays. The Grievor was capable of taking vacation and he requested, was granted, and was paid for his vacation in a three week block from July 10 to July 28, in accordance with the collective agreement. He also requested, and was granted, and paid for days off as his statutory holiday entitlement, in accordance with the collective agreement.
Given that the Grievor received his full vacation and statutory holiday entitlements under the collective agreement, it cannot be said that the Grievor has lost any benefits. He has also received all of his loss of earnings WSIB benefits for the hours he was unable to work due to his injury. I do not find that the Grievor was somehow required to contribute to his WSIB benefits in any manner, or that he was required to indemnify the Board for any liability that they have in regard to WSIB.[^3]
[5] This is a judicial review of that decision.
[6] The parties agree that the standard of review is reasonableness. The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov[^4] makes clear that this standard is presumed to apply to an application for judicial review. In the absence of an explicit prescription that a court is to have a role in the review, the intent of the legislature is for “administrative decision makers to function with a minimum of judicial interference”.[^5] In this case, this is confirmed by the Police Services Act[^6] which provides that the award of an arbitrator is binding. It is complemented by the collective agreement which provides that arbitral rulings are to be “final and binding”.[^7] This standard of review requires the court to consider whether the decision-making process of the Tribunal was justified, transparent and intelligible[^8] and whether the decision falls within a range of possible acceptable outcomes.[^9]
[7] A reasonable decision “is one based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and the law that constrain the decision maker.”[^10] Both the reasoning process and outcome are subject to review. Courts are directed to take a “reasons first” approach to judicial review. Reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable.”[^11]
[8] The reliance on the reasons is particularly important in this case. As part of his oral submissions, counsel for the Association conceded that the interpretation of the Arbitrator falls within the range of possible acceptable outcomes. The primary problem, as the Applicant Association sees it, is with the reasons. It submits that:
The arbitrator provides no reasons for her conclusion that PC Bolton’s entitlement and deductions were to be off work for full days, rather than the hours he worked. She did not cite any provisions of the collective agreement in her reasons.[^12]
[9] As the two paragraphs from the reasons of the Arbitrator, quoted above, demonstrate, this is not an accurate understanding of the decision she released. It is apparent from the first of the two paragraphs that she took note of the role played by both the Workplace Safety and Insurance Act and the collective agreement. The former was the source of the compensation for the shortfall for the time Constable Bolton would, in the normal course have been expected to but in his particular circumstances was unable to, work. The latter was recognized as continuing to be the basis for his entitlement to take time off, both as annual leave and statutory holidays, and to be paid while taking them. The paragraph goes on to observe that Constable Bolton was able to take the time off and was paid when he did so.
[10] The second paragraph concludes that as a result it cannot be said, nor was there any basis to find, that with the deduction of the credit from his leave banks for both vacation time and the time off for which he was paid pursuant to the Workplace Safety and Insurance Act, he lost any benefit to which he was entitled or that he took on any liability.
[11] To the contrary the Arbitrator found that if the approach of the Association was adopted, far from losing any rights, Constable Bolton would have been able to claim more vacation than he would properly be entitled to:
No matter which interpretation I adopt, the Grievor will receive the same compensation. The difference in the parties’ positions is how many days the Grievor will be out of the workplace on annual leave or using his statutory holiday entitlement. Under the Board’s interpretation, the number of days that the Grievor will be away from the workplace on annual leave is equivalent to twenty-six 8-hour days, exactly his entitlement under the collective agreement. Under the Association’s position, the Grievor will be away from the workplace for the equivalent of fifty-two 8-hour days. The same result occurs for statutory holidays.[^13]
[12] Counsel for the Association complains that “[o]nly one case is explicitly discussed” in the reasons of the Arbitrator. It goes without saying that there is no requirement to address all, some or any case referred to in argument. The Arbitrator identified cases referred by the Association in its submissions:
In support of its position with respect to general principles related to the purpose of vacation, the Association relied on London Police Services Board v. London Police Association [2010] O.L.A.A. No. 446 (Snow); Canadian Union of Public Employees, Local 4593 v. Assiniboine Regional Health Authority, [2009] M.G.A.D. No. 24 (Graham); and excerpts from Canadian Labor Arbitration at Chapter 8:3210, (Brown and Beattie). The Association also relied on a number of authorities that address the entitlement to vacation or statutory holidays while an employee was in receipt of WSIB or weekly indemnity, including Toronto Transit Commission v. Amalgamated Transit Union, Local 113 O.L.A.A. No. 13 (Slotnick); Atlantic Packaging Products Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 333, [2001] O.L.A.A. No. 220 (Goodfellow); United Steelworkers of America v. Canadian Office and Professional Employees, Local 343 [2004] O.L.A.A. No. 832 (Keller); and Niagara Region Police Association and Regional Municipality of Niagara Police Services Board (Unreported decision of Laura Trachuk dated June 19, 2018).[^14]
[13] She did the same in respect of the cases referred to by the Board:
The Board relied on the following authorities in support of its position: Belleville Police Association v. Board of Commissioners of Police for the City of Belleville, OPAC Award No. 90-005 (Boscariol); Assiniboine Regional Health Authority v. C.U.P.E., Local 4593 (2009), 189 L.A.C. (4th) 137 (Graham); National Steel Car Limited v. United Steelworkers of America, Local 7135, 2006’sCanLII 50490 (ON LA) (Surdykowski); Printing Specialties & Paper Products Union, Local 466 v. Corrugated Paper Box Co. (1995), 6 L.A.C. 102 (Laskin); and Loblaw’s Supermarkets Limited v. United Food and Commercial Workers Union Canada, Local 1000A, 2012 15669 (ON LA) (Surdykowski).[^15]
[14] The one case, identified by counsel for the Association as having been “explicitly discussed” by the Arbitrator was Niagara Region Police Association and Regional Municipality of Niagara Police Services Board. Why that one? Because the Association placed particular reliance on it.[^16] The Arbitrator distinguished that case from this one. She found it was not helpful:
However, while there are some similarities between Niagara Police and the case before me, the issues are not the same. Most importantly, the conclusion in Niagara Police was based on a provision in the collective agreement that is not present in this collective agreement. For these reasons, the result in Niagara Police is not directly applicable in this case.[^17]
[15] I return to the assertion that the Arbitrator did not “not cite any provisions of the collective agreement in her reasons” (see fn. 12). The substance of the point being made is not clear. It may be that the concern being expressed reflects that within the Award, under the heading “Decision” there is no reference to any specific article found in the collective agreement. However, at paragraph 3 of the Award, immediately following the Agreed Statement of Facts, on which the parties relied in presenting the case to the Arbitrator, the Arbitrator identified and quoted parts of “[t]he relevant provisions of the collective agreement”. These include “ARTICLE 18- HOURS OF WORK”, “ARTICLE 26 -STATUTORY HOLIDAYS”, “ARTICLE 27-ANNUAL LEAVE” and the first paragraph of Article 28.03 which is part of “ARTICLE 28-SICK LEAVE AND WORKERS SAFETY & INSURANCE ACT”. Generally, what the paragraphs quoted in the Award refer to are “days” of work (18.01 (a)), “statutory holidays”, “days in lieu…” (26.01) and “Each day of annual leave…” (27.01(a)). What these quoted clauses and others demonstrate is that the primary unit of time utilized by the collective agreement, in dealing with holidays and annual leave is “days” not “hours”.
[16] The Board is responsible for ensuring that any officer involved, in this case Constable Bolton, is not penalized with respect to pay where, as a result of accident or illness, he or she receives WSIB compensation. There is no suggestion that somehow in these circumstances these officers are entitled to receive the additional benefit of more holiday time, with pay:
The Board’s position in the case before me is compelling because it is indisputable that the Grievor will indeed receive his full vacation and statutory entitlement under the collective agreement in the same manner as every other employee. The Association objects to the Board’s interpretation based on the notion that the Grievor has a separate entitlement to be paid for half of his vacation days as WSIB, rather vacation, because he does not work his full shift. I do not accept this position.[^18]
[17] All of which goes to confirm what was acknowledged, that the decision of the Arbitrator falls within the range of possible acceptable outcomes and to demonstrate that the reasons given, consistent with the “reasons first” directive found in Vavilov, are all of “justified, transparent and intelligible”. They are “internally consistent and demonstrate a coherent chain of analysis that is justified in relation to the facts and the law that constrain[ed] the decision maker”.
[18] The application is dismissed.
[19] As agreed to by the parties, costs to the successful party, the Board, to be paid by the Association in the amount of $5,000.
Lederer, J.
I agree _______________________________
Firestone, R.S.J.
I agree _______________________________
Pattillo, J.
Released: March 12, 2021
CITATION: The Durham Regional Police Association v. The Durham Regional Police Services Board, 2021 ONSC 1607
OSHAWA DIVISIONAL COURT FILE NO.: DC-1219/20
TORONTO COURT FILE NO.: 522-20
DATE: 20210312
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone R.S.J., Pattillo and Lederer JJ
BETWEEN:
THE DURHAM REGIONAL POLICE ASSOCIATION
Applicant
– and –
THE DURHAM REGIONAL POLICE SERVICES BOARD
Respondent
REASONS FOR JUDGMENT
Released: March 12, 2021
[^1]: The case proceeded on an Agreed Statement of Facts. I have relied on it but not quoted it in full. [^2]: Decision of Arbitrator Diane Brownlee, dated August 9, 2019 at para. 15. [^3]: Ibid at paras. 21 and 22. [^4]: 2019 SCC 65, 2019 S.C.C. 65, 441 D.L.R. (4th) 1, 59 Admin L.R. (6th) 1, 312 A.C.W.S. (3rd) 460 [^5]: Ibid at para. 24 [^6]: R.S.O. 1990, c. P. 15, s. 128 [^7]: Collective Agreement Article 6, Step 5 [^8]: Canada (Minister of Citizenship and Immigration) v. Vavilov, supra (fn. 4) at paras. 15 and 86 [^9]: Ibid at para. 86 [^10]: Ibid at para. 86 [^11]: Ibid at para. 81 and 127 [^12]: Factum of the Applicant at para. 22 [^13]: Decision of Arbitrator Diane Brownlee, dated August 9, 2019 at para. 16 [^14]: Ibid at para. 8 [^15]: Ibid at para. 14 [^16]: Ibid at para. 19 [^17]: Ibid at para. 19 [^18]: Ibid at para. 20