SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-11-5296

DATE: 2014/12/01

RE: Jeffrey Ricard v. Attorney General of Ontario and the Ontario Provincial Police

BEFORE: Nadeau J.

COUNSEL:
Robert Fredericks and Jennifer Richards, for the Moving Party, Attorney General of Ontario and the Ontario Provincial Police

Ian McLean, for the Responding Party, Jeffrey Ricard

HEARD: November 17, 2014

ENDORSEMENT

[1] This is a motion seeking my leave to appeal to the Divisional Court from the interlocutory Order of The Honourable Justice Rivard dated September 16, 2014, dismissing the defendant’s motion under Rule 21.01(3)(a) seeking to dismiss the claim of Jeffrey Ricard on the grounds that this Court has no jurisdiction over the subject matter of the action.

[2] Rule 62.02(4) provides:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[3] Upon my consideration of the rather extensive written arguments as supplemented by the oral arguments, for this motion seeking leave I will not even attempt to summarize the arguments of Counsel for both litigants.

[4] My analysis begins with applying the test outlined by Rule 62.02(4)(a), and considering the decision of Justice Whitaker of this Court in Michael Jack v. Ontario et al (April 3, 2014) in Court file CV-12-470815. For the following reasons, I have determined that this is a conflicting decision with that made by Justice Rivard.

[5] In my questioning of Counsel for the Responding Party, the submission was that Justice Whitaker’s decision is distinguishable since it did not involve a termination of the probationary police officer pursuant to section 37(2) of the Public Service of Ontario Act. As well, it was submitted that Jeffrey Ricard had previously satisfied his probationary period under that statute from his previous employment as a Corrections Officer. In light of section 10.1 of the Ontario Provincial Police Collective Bargaining Act, I disagree with both of these submissions.

[6] While it is clear that Jeffrey Ricard was released from employment by the Ontario Provincial Police pursuant to subsection 37(2) of the Public Service of Ontario Act, a dismissal for failure to meet the requirements of his position, section 10.1 of the Ontario Provincial Police Collective Bargaining Act confirms the fact that he would have been a Probationary Constable until May 7, 2011.

[7] In Jack, Justice Whitaker concluded that action was dismissed since the Court does not have jurisdiction over that claim, but rather it falls within the jurisdiction of a labour arbitrator. His analysis on this issue was as follows:

“In my view, all of the allegations made by the plaintiff and which form the basis of his claim, are clearly arising from the collective agreement between the OPP and the OPPA. The essential character arises from the interpretation, application, administration and alleged violation of the collective agreement. In that, the parties to the agreement have explicitly referred to the provisionary of the Human Rights Code. This is notwithstanding the fact that probationary employees are precluded from filing a grievance [contesting] a dismissal. In this case, the plaintiff resigned, but in any event, the parties have agreed under the collective agreement to limit the entitlement of probationary employees and the plaintiff cannot go around the language of the collective agreement in the vehicle of this action.”

[8] That decision determined that the absence of any recourse for a Probationary Constable during the probationary period did not confer this Court with jurisdiction over matters which in their essential character arise from the employment relationship as outlined in their collective agreement. It confirms that labour arbitrators have exclusive jurisdiction over any dispute arising from the collective agreement, even whether an adequate remedy is available.

[9] In particular, that exclusive jurisdiction is liberally applied in the police services context, including the statutory regime created for police discipline matters. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, at paragraph 39, the Supreme Court of Canada unanimously decided as follows:

“To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature.”

[10] In Vaughan v. Canada, 2005 SCC 11, the majority of that Court further indicated:

“The Weber approach was extended beyond collective agreements to a statutory (not collective bargaining) regime in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14. That case involved a statutory regime for police discipline. Bastarache J., for the Court, held at para. 26:

… the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature.”

[11] My review has therefore also determined that it is desirable that leave to appeal be granted in order to eliminate any conflict in the jurisprudence. These emerging issues of the exclusive jurisdiction of labour arbitrators, or of police disciplinary bodies, are matters of general importance. Although the result here narrowly affects these litigant’s legal interests, it may also have broader application in labour law and in particular for police disciplinary processes.

[12] For the above reasons, I have been satisfied by the Moving Party that leave to appeal shall be granted pursuant to Rule 62.02(4)(a). Having so found, it is not necessary for me to deal specifically with the alternative test provided by Rule 62.02(4)(b).

[13] In any event, although I question here whether Jeffrey Ricard had been denied ‘due process’ having regard to the investigative report sent to him on March 2, 2011 and the meeting then held with him on April 6, 2011, there may still be in his specific circumstances a “real deprivation of ultimate remedy”. As a result, the decision of Justice Rivard to take jurisdiction in this particular case is quite judicious in my opinion, and there appears to be no good reason to doubt the correctness of his Order. However, as brought to my attention during argument, Jeffrey Ricard continues to seek a remedy in the form of a judicial review of the relevant administrative decisions; presently scheduled to be heard by the Divisional Court at Sudbury. Furthermore, it is uncontested that what he continues to seek, in addition to damages for wrongful dismissal and breach of contract, is his reinstatement to the Ontario Provincial Police as pleaded in his Statement of Claim. Nowhere does he request being reassigned back to Correctional Services.

[14] Having said that, as indicated leave to appeal pursuant to Rule 62.02(4)(a) is granted.

[15] Unless the Moving Party makes submissions in writing to me within 7 days of the date of my reasons granting leave to appeal, then the Responding Party within 7 days thereafter, there shall be no order as to costs for this motion.

Date: December 1, 2014
The Honourable Mr. Justice David J. Nadeau