Supreme Court of Canada

Durham Regional Police Association v. Durham Regional Board of Police Co., [1982] 2 S.C.R. 709

Date: 1982-11-23

Durham Regional Police Association Appellant;

and

Durham Regional Board of Commissioners of Police Respondent;

and

The Attorney General of Ontario Intervener.

File No.: 16127.

1982: November 2; 1982: November 23.

Present: Laskin C.J. and Dickson, Beetz, Estey, McIntyre, Chouinard and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Labour relations—Police—Collective agreement—Clause allowing indemnification for legal fees—“Working condition” under s. 29(2) of The Police Act—Section 24(6) granting municipalities a discretion to pay legal expenses—Whether or not clause excluded from collective agreement by operation of s. 24(6)—The Police Act, R.S.O. 1970, c. 351, ss. 24(6), 29(2).

Article 17.06, a collective agreement term providing for reimbursement of an officer’s legal fees on his acquittal of a criminal or statutory offence flowing from his police duties, was submitted to arbitration pursuant to The Police Act. Section 29(2) of that Act supported the article’s validity as a “working condition” subject to inclusion in an agreement. Section 24(6), however, granted municipal councils a discretion to pay or not to pay the damages or costs of a member of its police force incurred in any civil or criminal proceeding. The Ontario Court of Appeal upheld the Divisional Court’s judgment quashing article 17.06. The central issue here was whether s. 24(6), couched as it was in permissive terms, excludes article 17.06 from the collective agreement.

Held: The appeal should be allowed.

The unfettered discretion found in s. 24(6)—an empowering provision—does not preclude the establishment of a collective bargaining regime. The supersession of s. 24(6) by a subsequent provision for collective bargaining still left s. 24(6) operative in respect of

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members of the police force not under a collective bargaining relationship. Here, there was no incompatibility or inconsistency between s. 24(6) and s. 29(2).

International Brotherhood of Electrical Workers v. Town of Summerside, 1960 48 (SCC), [1960] S.C.R. 591, considered; Dennis v. Metropolitan Board of Commissioners of Police (1976), 1976 805 (ON CA), 12 O.R. (2d) 439; Re Board of Education for the Borough of Etobicoke and Canadian Union of Public Employees, 1972 1195 (ON SCDC), [1973] 1 O.R. 437, referred to.

APPEAL from a judgement of the Ontario Court of Appeal dismissing an appeal from a judgment of the Divisional Court quashing an arbitration finding a term of a collective agreement validly part of that agreement. Appeal allowed.

Ian Scott, Q.C. and A.G. Bolotenko, for the appellant.

D.J.D. Sims, Q.C., for the respondent.

Michael W. Bader, for the intervener.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The Police Act, R.S.O. 1970, c. 351, provides for the arbitration of terms of a collective agreement which the parties are unable to resolve between themselves. In the present case, an arbitrator prescribed article 17.06 as one of the terms of an agreement between Durham Regional Police Association and Durham Regional Board of Commissioners of Police. That article reads as follows:

17.06 Where a member of the Force is charged with a criminal or statutory offence flowing from his police duties and is subsequently acquitted of such charges, the member shall be reimbursed for any reasonable legal expenses incurred as a result of such charges.

It was common ground in the courts below that s. 29(2) of The Police Act would, if taken alone, support the validity of article 17.06 as being a “working condition” under that section. The question in this appeal is whether the article is forbid-

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den under s. 24(6) of the Act which has this formulation:

24. …

(6) The council of a municipality may, in such cases and to such extent as it thinks fit, pay any damages or costs awarded against a member of the police force maintained by them or any special constable in any civil or criminal proceeding brought against him, any costs incurred and not recovered by him in any such proceeding, and any sum required in connection with the settlement of any claim that has or might have given rise to such proceeding.

Section 29(2) of The Police Act, relied on by the arbitrator and by the appellant Police Association is in these words:

29. …

(2) Where notice has been given under subsection 1, the council of the municipality, or, where there is a board, the board, shall meet with a bargaining committee of the members of the police force within fifteen days from the giving of the notice or within such further period as the parties agree upon and the parties shall bargain in good faith and make every reasonable effort to come to an agreement for the purpose of making an agreement in writing defining, determining and providing for remuneration, pensions, sick leave credit gratuities, grievance procedures or working conditions of the members of the police force, other than the chief of police and any deputy chief of police, except such working conditions as are governed by a regulation made by the Lieutenant Governor in Council under this Act.

The Ontario Divisional Court quashed article 17.06 on the ground that it was beyond the power of the arbitrator to introduce into the collective agreement a provision which would interfere with the statutory discretion in the Council of the Municipality and, hence of the Board of Commissioners of Police, and indeed would fetter that discretion by turning the determination of particular or individual cases into a governing policy. This conclusion was supported by a majority of the Ontario Court of Appeal, Zuber J.A. dissenting.

I am prepared to accept the respondent Board’s submission that s. 24(6) is ample enough in its reference to “costs incurred” (and this was the view of Zuber J.A.) to embrace legal expenses

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within article 17.06. This does not, however, determine the issue against the validity of the article. The central question is whether s. 24(6), couched as it is in permissive terms, excludes a collective agreement clause of the kind specified in article 17.06. Section 24(6) may have some effect outside of bargained collective agreement provisions, whether the latter are arrived at by voluntary negotiation or reached under statutory arbitration, but it remains to decide whether it forbids the municipality or a representative Board of Police Commissioners to yield an individual discretion to a collective agreement policy.

Although counsel for the respondent Board took the position initially that the phrase “working conditions” in s. 29(2) was not broad enough to include the terms of article 17.06, it was not a position pressed by him nor endorsed by counsel for the Attorney General of Ontario who supported the Board. Essentially, counsel for the Board and counsel for the Attorney General of Ontario relied on s. 24(6) as precluding resort to s. 29(2) and the words “working conditions” therein to justify article 17.06.

There was some canvass of the history of the legislation preceding the present Police Act and it is sufficient to note that as of 1946 there was a statutory provision in the terms of s. 24(6) which antedated any provision for bargaining between a municipality or Board and a police association. The introduction of a bargaining regime of a limited character from 1949 on obviously qualified the previous unfettered right in law for a municipality or Board to fix terms of employment of police officers. Bargaining was not made wide open with the provision made for recognition of police associations. As counsel for the Association here emphasized, there was no right to strike, as there is in ordinary trade union employer collective bargaining, there was no right to mount economic pressure, there were particular constraints on the scope of bargaining included in The Police Act, and it was provided that a bargaining impasse was to be resolved by arbitration to fix the terms of the matters in issue in the bargaining process. A par-

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ticular constraint relevant here is set out in s. 29(2) itself which excludes from the scope of “working conditions” those governed by a Regulation of the Lieutenant Governor in Council. There is a regulation, Regulation 790, which does not touch what has been prescribed in article 17.06. It is of interest to note that in the material placed before this Court, there was a reference to seven collective agreements governing police associations and municipalities or Boards which include terms of the character of article 17.06. The Lieutenant Governor in Council must be taken to be aware of these agreements and had the power to exclude article 17.06 or like articles from being open to bargaining.

Counsel for the respondent Board is, of course, correct that in the absence of statutory authority for indemnification of legal expenses incurred by members of the police force, a municipality or a Board would not have power to provide it. He would, however, advance from this position to contend that the statutory provision for indemnification kept the matter one for the sole discretion of the municipality; and this was the contention as well of counsel for the Attorney General. I find it a long leap forward to hold that permissive power to indemnify must be construed to exclude bargaining on the issue under s. 29(2). It was conceded that policemen incur risks of legal expenses no less than risks of physical injury in carrying out their duties, and the proposal set out in the proposed article 17.06 is hardly startling. Although it was open to the Board to recede from a position previously taken, by reason of counsel’s subsequent advice, there is the fact that it agreed to article 17.06 by the Police Association agreeing to introduce the word “reasonable”.

We are then left with the question, which I posed at the beginning of these reasons, whether s. 24(6) and s. 29(2) are incompatible or inconsistent so far as article 17.06 is concerned. The issue is not a new one in police bargaining, and I see no point in examining either Dennis v. Metropolitan Board of Commissioners of Police (1976), 12

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O.R. (2d) 439, upon which Zuber J.A. and the appellant relied or Re Board of Education for the Borough of Etobicoke and Canadian Union of Public Employees, 1972 1195 (ON SCDC), [1973] 1 O.R. 437, upon which the respondent Board relied.

Fastening on s. 24(6) and s. 29(2), I am of the opinion that the unfettered discretion reposed in s. 24(6) does not prescribe exclusivity that would preclude establishment of a collective bargaining regime. Section 24(6) is an empowering provision only and its suggested exclusivity is not found in its provisions. The supersession of s. 24(6) by a post-enacted provision for collective bargaining still leaves s. 24(6) operative in respect of members of the police force who are not under a collective bargaining relationship with the Board of Commissioners of Police. In the circumstances, there is no incompatibility or inconsistency in this case between s. 24(6) and s. 29(2); each has its own area of operation. The latter may itself be superseded by the Lieutenant Governor in Council if it chooses to act under a Regulation; it has not chosen to do so in this case.

Although not precisely in point, there is analogy in the judgment of this Court in International Brotherhood of Electrical Workers v. Town of Summerside, 1960 48 (SCC), [1960] S.C.R. 591. The issue there was whether the respondent municipality was obliged to bargain collectively with the appellant union on behalf of the employees under the Prince Edward Island Trade Union Act, R.S.P.E.I. 1951, c. 164, or whether the municipality’s Summerside Incorporation Act, 1903 (P.E.I.) c. 18, absolved it of any legal duty to bargain collectively. The municipality relied on the allegedly special provisions of by-law 326 of the act of incorporation which provided the following:

The salaries of Town Officials, Firemen and all other Employees of the Town shall be such as the Town Council may from time to time determine and fix by resolution, and they shall remain in office during the pleasure of the Council, and should any vacancies occur, the Council may appoint others to take their place at any meeting of the Council.

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The Prince Edward Island Supreme Court in banco was of the view that the special Act prevailed over the general Trade Union Act because otherwise the latter would trespass on the powers said to be reserved to the municipality under by-law 326. Ritchie J., speaking for this Court, held that there was no repugnancy between the two Acts in issue before him, and it was his conclusion that there was nothing in the act of incorporation which precluded the municipality from making such by-laws as might be deemed proper to comply with the terms of an agreement regulating the conditions of employment of its employees, there being no statutory restriction in this respect.

For the reasons given above, as well as for those delivered by Zuber J.A., I would allow the appeal, set aside the judgments below and reinstate the award of the arbitrator. The appellant is entitled to costs throughout. There will be no costs to or against the Attorney General of Ontario.

Appeal allowed with costs.

Solicitors for the appellant: Cameron, Brewin & Scott, Toronto.

Solicitors for the respondent: Sims, Morton, Mclnerney & Brady, Whitby.

Solicitor for the intervener: H. Allan Teal, Toronto.