COURT FILE NO.: CV-19-79708
DATE: 2019/12/20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MATTHEW SKOF and OTTAWA POLICE ASSOCIATION, Plaintiffs/Responding Party
AND
CHARLES BORDELEAU and OTTAWA POLICE SERVICES BOARD, Defendants/Moving Party
BEFORE: Justice Marc R. Labrosse
COUNSEL: Paul Champ and Bijon Roy, for the Plaintiffs/Responding Party
Ronald F. Caza and Marie-Pier Dupont, for the Defendants/Moving Party
HEARD: October 3, 2019
ENDORSEMENT
Overview
[1] This is a motion, made by the Defendants under r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”) for an order dismissing the action against both Defendants as the Superior Court of Justice has no jurisdiction over the subject-matter.
[2] The action commenced on March 26, 2019. The Plaintiff, Matthew Skof, is an employee of the Ottawa Police Services Board (“OPSB”) and is the President of the Plaintiff, the Ottawa Police Association (“OPA”).
[3] At all material times, there was a collective agreement between the OPSB and the OPA.
[4] The Defendants state that the essential character of the dispute as alleged in the Statement of Claim is a matter that is strictly within the ambit of the Collective Agreement and the Police Services Act, R.S.O., 1990, c. P. 15 (“PSA”). As such, the Superior Court of Justice does not have jurisdiction over the subject-matter of this dispute.
[5] The Plaintiffs submit that the parties have agreed in writing that the Collective Agreement does not apply to Mr. Skof while he is on leave from police duty to act as the President of the OPA. Further, the disciplinary regime under Part V of the PSA does not oust the jurisdiction of the Court when challenging the legality of an administrative suspension and the abusive exercise of the statutory suspension power by the Chief of police. Thus, the motion ought to be dismissed.
Relevant Facts
[6] The OPA is a non-profit Ontario corporation established in 1962, and is the professional association of members of the Ottawa Police Service (“OPS”). The OPA is an association under the PSA and is recognized by the OPSB as exclusively representing members of the OPS for all collective bargaining, labour relations, and membership representation purposes.
[7] The OPA is governed by a Board of Directors and President, who are elected by its membership for three-year terms. The office of the President is a full-time position and reports directly to the OPA Board of Directors. The President is the Chief Executive Officer of the OPA and presides over all OPA activities.
[8] The OPA and the OPSB entered into a collective agreement in 2016, which is up for renewal at the end of 2019 (the “Collective Agreement”). The Collective Agreement applies to all employees of the Police Service, “save and except those excluded by statute or as set forth in this Agreement, or employees of the Police Service covered by a separate agreement between the Board and the Association.”
[9] Mr. Skof joined the OPS in 1977 and has been on full-time leave from duties with the OPS since December 15, 2011 when he was elected to serve as President of the OPA for a three-year term. He was re-elected in 2014 and again in 2017.
[10] On January 29, 2012, Mr. Skof, the OPA and the OPS signed a Memorandum of Agreement which set out that Mr. Skof was placed on a leave of absence from policing duties, seconded from the OPS to the OPA and that aside from benefits, the Collective Agreement does not apply to Mr. Skof during his time with the OPA. The exclusionary wording does not refer to the final paragraph of Article 21 of the Collective Agreement.
[11] Following Mr. Skof’s re-election in 2017, the Defendant Bordeleau wrote to him on August 25, 2017 confirming that “During the leave of absence, the provisions of the Collective Agreement will not be applicable” (the “Letter Agreement”). Again, no mention is made of the exclusionary wording found in the final paragraph of Article 21 of the Collective Agreement.
[12] On January 23, 2019, the Ontario Provincial Police charged Mr. Skof with breach of trust and obstruction of justice, in violation of ss. 122 and 139(2) of the Criminal Code, R.S.C. 1985, c. C-46. The charges were followed by the initiation of a Chief’s Complaint investigation into Mr. Skof’s conduct pursuant to s. 76(1) of the PSA. The charges relate to allegations that Mr. Skof disclosed private and confidential information to a civilian about an ongoing undercover investigation.
[13] The Defendant Bordeleau issued an initial Notice of Suspension on January 23, 2019 that ordered Mr. Skof to surrender his identification card, wallet badge, and building access card, and banned him from accessing OPS facilities, properties or vehicles. The Notice of Suspension also prohibited Mr. Skof from accessing any OPS computer systems and from conducting any OPA business in OPS buildings and facilities. While the initial Notice of Suspension prohibited Mr. Skof from attending at public meetings of the OPSB, that was subsequently withdrawn in a second Notice of Suspension issued on March 22, 2019.
[14] On February 22, 2019, the OPA filed a grievance and requested the appointment of a conciliation officer under s. 123 of the PSA. The grievance claims that the OPS is breaching Articles 1.01 and 3 of the Collective Agreement by removing the President’s access to the buildings of the OPS, his building pass and access to the staff profile and limiting his ability as the exclusive bargaining agent. Mr. Skof states that the grievance was filed to preserve any rights he may have under the Collective Agreement and that it has not moved forward since it was filed and remains unresolved.
[15] On March 22, 2019, the Plaintiffs issued a Statement of Claim which alleges that the Notice of Suspension imparts and interferes with the Plaintiffs’ right “to represent and assist the OPA and its membership in a wide range of matters, including collective bargaining, discipline, grievance matters and the standards of police service in Ottawa”, in violation of s. 2 of the Canadian Charter of Rights and Freedom, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, C. 11. The Plaintiffs further allege that Mr. Skof is not a police officer and therefore not subject to the dispositions of the Collective Agreement, nor do the discipline procedures provided by Part V of the PSA.
[16] In the second Notice of Suspension issued on March 22, 2019, the revised Notice removed the prohibition from Mr. Skof attending OPSB meetings and granted Mr. Skof permission to attend Ottawa Police facilities only if he was conducting OPA business and he was “escorted” by an OPS member in good standing.
The Collective Agreement and Leave of Absence
[17] The Collective Agreement provides that pursuant to the PSA, the OPSB recognizes the OPA as the exclusive bargaining agent for all employees coming within the scope on the Collective Agreement.
[18] The Collective Agreement applies to all employees of the Police Service, “save and except those save and except those excluded by statute or as set forth in this Agreement, or employees of the Police Service covered by a separate agreement between the Board and the Association”. (my emphasis)
[19] The following articles of the Collective Agreement are particularly relevant to this case:
a. Article 1 recognizes the association as the exclusive bargaining agent;
b. Article 2 provides the management rights, including the exclusive right in matters of discipline and also provides for a duty of fairness and reasonability in exercising that right;
c. Article 3 is an agreement that there will be no discrimination, interference, restraint or coercion because of an employee’s membership in the Association;
d. Article 6 provides for good faith bargaining and arbitration pursuant to the PSA;
e. Article 21 deals with the status of executive officers of the OPA and their leave of absence from the OPS while in their executive positions; and
f. Article 24 provides for grievance and a complete grievance procedure and that the result of the arbitratiom is final and binding of the parties.
[20] The OPA and OPS negotiated an agreement under which Mr. Skof was placed on a leave of absence from policing duties and seconded by the OPS to the OPA for the duration of his term as President, in accordance with Article 21 of the Collective Agreement. The Memorandum of Agreement stated that, aside from benefits, the Collective Agreement does not apply to Mr. Skof during his time with the OPA. The Memorandum of Agreement makes no mention of Article 1:02 of the Collective Agreement that allows for the contracting out of the Collective Agreement by separate agreement for certain employees.
[21] In August 2017, upon the renewal of Mr. Skof’s secondment, the Letter Agreement was signed by both the Chief of Police and Mr. Skof confirming that during the term of the secondment, the provisions of the Collective Agreement would not apply to Mr. Skof. In addition, Mr. Skof’s leave banks were to be frozen until such time as he was to return to employment with the OPS. Finally, should Mr. Skof wish to return to regular employment at any time, he is to give a minimum of one month’s notice. It is unclear if this was intended to be an agreement pursuant to Article 1:02 of the Collective Agreement.
The Law
Rule 21.01(3) of the Rules
[22] Rule 21.01(3)(a) of the Rules provides for the dismissal of an action where the court has no jurisdiction.
[23] The Collective Agreement establishes the broad parameters of the relationship between the OPS, the OPA and the police personnel. That relationship is properly regulated by arbitration and it would be contrary to the terms of the relationship and the PSA to allow for matters addressed and governed by the Collective Agreement to also be the subject of an action before the Courts.
[24] As set out in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at para. 41, the modern approach is to consider that the labour relations legislation provides a code governing all aspects of labour relations and that the parties to a collective agreement should not have recourse to the courts where it would represent a duplicative forum for a dispute.
[25] When determining if the Courts have jurisdiction over a dispute, the Court must proceed on the basis of the facts surrounding the dispute between the parties, not on the legal issues which may be framed. The issue is if the dispute is one arising under the collective agreement: see Weber, at para 43.
[26] However, when exercising its power under r. 21.01(3)(a) to dismiss an action in favour of labour arbitration, the Court should only do so where it is clear, or plain and obvious that the plaintiff cannot succeed due to jurisdiction: see Pileggi v. Canadian Union of Postal Workers, 2005 CanLII 14323, at para. 40. Thus, there is a high burden on the moving party.
[27] As set out by the Plaintiff in his Factum, the PSA establishes an unusual labour relations regime. Typically, labour arbitrators have jurisdiction over all disputes between an employer and employees, including remuneration, working conditions, and discipline. But under the PSA, collective agreements cannot deal with certain working conditions or the statutory disciplinary scheme under Part V of the PSA. Further, municipal police services boards are the formal employers of police officers in Ontario, but it is chiefs of police who have responsibility for the operational direction and management of police officers.
[28] Under the PSA, there are two distinct mechanisms for resolving disputes: labour arbitration under Part VIII of the PSA and disciplinary hearings under Part V of the PSA. The chief of police is responsible for administering the disciplinary regime for police officers under Part V of the PSA. That procedure falls outside the the collective agreement. Where a dispute lies on the use of the power to suspend under s. 89 of the PSA, the parties agreed that the right to oppose such a power would likely be in an Application for Judicial Review although the Plaintiffs stated that it could also be done by action.
[29] As set out in Regina Police Association v. Regina Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, if neither the arbitrator, nor the Commission have jurisdiction to hear the dispute in question, a court would possess residual jurisdiction to resolve the dispute.
[30] With respect to police discipline, the Court of Appeal for Ontario followed Regina Police Association in Abbott et al. v. Collins et al., 2003 CanLII 46127 (ON CA), 64 O.R. (3d) 789, at para. 27 in finding that the PSA is intended to create a complete substantive and procedural code for discipline of police officers within the provisions of the PSA.
[31] The Plaintiff states that this is one of those rare disputes that do not fall within the jurisdiction of either a labour arbitrator or the disciplinary scheme of the PSA. Conversely, the Defendants state that the proper jurisdiction lies with either the arbitration process or the police discipline process under Part V of the PSA or judicial review and that it is not for this Court to determine which one applies.
Analysis
Employment Status
[32] I begin with Mr. Skof’s status while on leave as President of the OPA. Although he contends that he is no longer an employee of the OPSB during his secondment, I disagree.
[33] Starting with Article 21 of the Collective Agreement, that section maintains the wording employer-employee and refers to a “leave of absence” and “secondment”. Specifically, this Article provides that “An employee will not be subject to discipline by the employer, under this Agreement, for activities related to his/her duties on behalf of the Association during the period of such leave.” This section also provides that the employer will continue to pay the individual’s salary and other benefits subject to being reimbursed by the OPA. Article 21 does not otherwise disentitle the seconded employee from the other provisions of Collective Agreement.
[34] As for the Memorandum of Agreement executed in January 2012, it states that the provisions of the Collective Agreement will not apply to Mr. Skof during his secondment. In para. 8 of the Memorandum, it refers to Mr. Skof’s “return to regular employment”.
[35] As for the Letter Agreement, it uses inconsistent wording when referring to Mr. Skof’s employment. At para. 3, it states: “Should you elect to return to employment…”. Paragraph 4 refers to Mr. Skof’s “employment with the Association”. Paragraph 5 states: “Should you wish to return to regular employment at any time…”.
[36] In considering all the documents that acknowledge the secondment of an officer to the OPA, it is clear that a person continues to be a police officer for the purposes of the PSA and specifically that he continues to be an employee as defined in the Collective Agreement. In considering the Collective Agreement on its own in the case of a secondment, the document clearly contemplates that the officer will be an “employee” and only carves out issues of discipline “for activities related to his/her duties on behalf of the Association”. Otherwise, the Collective Agreement continues to apply.
[37] While the parties went further in the Memorandum of Agreement and stated that other than those specific sections related to health and welfare benefits, “all other provisions of the Agreement shall not apply to Mr. Skof during his secondment”, this document does not deal with limitations to the officer’s status as an employee or police officer and certainly does not purport to end his status as an employee.
[38] Finally, there was an exchange of correspondence between the Director of Labour & Employee Relations of the OPS and Mr. Skof, in January 2012, where the Director stated: “Again the main issue here is that you are not an employee of the OPSB while on leave with the OPA and the provisions of the Collective Agreement do not apply, except that which we have already agreed with respect ot benefits.”
[39] As previously stated, Article 1:02 of the Collective Agreement states that the Collective Agreement applies to all employees “except those excluded by statute or as set forth in this Agreement, or employees of the Police Service covered by a separate Agreement between the Board and the Association.”
[40] It is clear that the intention of the parties was for Mr. Skof in the Memorandum of Agreement was to maintain his entitlement to benefits and this would require that he continue to be an employee to qualify for benefits.
[41] It is unclear if the Memorandum of Agreement and the Letter Agreement are intended to be agreements for “employees for the Police Service covered by a separate Agreement between the Board and the Association” that are contemplated under Article 1.02 of the Collective Agreement. The Memorandum of Agreement and Letter Agreement are in conflict with Article 21 of the Collective Agreement. That article excludes discipline by the employer under the Collective Agreement during a leave of absence. This is far from stating that the Collective Agreement does not apply and even further from stating that the individual ceases to be an employee.
[42] In considering all these references to the status of Mr. Skof during his secondment, it is clear that he continues to be an employee. The Collective Agreement specifically says so, the documents drafted do not, except for the e-mail from the Director, specifically set out that he is no longer an employee or that he is no longer a police officer or that he is no longer subject to discipline under the PSA. That is clearly not the intention of the Collective Agreement and it is not the intention of the Memorandum of Agreement or the Letter Agreement. If it was the intention of those documents that Mr. Skof no longer be an employee, it would have to have be set out specifically. Consequently, for the purposes of this analysis, I am of the view that Mr. Skof continued to be both an employee of the OPSB and a police officer as defined in the PSA.
The Essential Character of this Dispute
[43] When considering the essential character of the dispute, the Court is guided by Weber where the Supreme Court of Canada stated that I must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issue which may be framed. The issue is if the dispute arises is one arising under the collective agreement: see Weber at para 43.
[44] The Court must start by assessing the source of the authority to permit the secondment of Mr. Skof. This clearly comes from Article 21 of the Collective Agreement. However, there is a clear direction that issues of discipline “for activities related to his/her activities on behalf of the Association” will not be dealt with under the Collective Agreement. The nature of the grievance filed on behalf of Mr. Skof articulates the dispute as a breach of Articles 1.01 and 3 by limiting Mr. Skof’s ability as the exclusive bargaining agent. As such, one could argue that it is not a grievance focussed on the disciplinary measures or restrictions imposed on Mr. Skof but that the Notice of Suspension prevents Mr. Skof from fulfilling the task for which he has a been seconded under Article 21.
[45] Conversely, the Collective Agreement excludes disciplinary measures taken against Mr. Skof for activities related to the OPA. As Mr. Skof continues to be an employee of the OPSB, the provisions in the PSA for dealing with disciplinary measures initiated by the Chief of Police may arguably apply. In addition, if the issues with the Notices of Suspension are jurisdictional in nature, the scope of the Notices of Suspension may properly be dealt with by way of Application for Judicial Review: see Trinaistich v. Crowell, [2009] O.J. No. 4830.
[46] As can be seen in Toronto Police Association v. Tornoto Police Services Board, 2015 ONCA 188, the determination of the applicable jurisdiction between a collective agreement and the PSA was a determination made by the arbitrator through the grievance process and then appeal rights were exercised.
[47] Here, the issue is not if the Plaintiffs have couched their claim as a breach of freedom of expression or as the tort of misfeasance of public office. A review of the Statement of Claim demonstrates that the nature of the allegations are that by removing Mr. Skof’s access to the OPS buildings and facilities, by removing his building pass and by removing his access to the staff profiles, the Chief of Police has limited Mr. Skof’s ability to act as the exclusive bargaining agent. This follows the wording of the grievance.
[48] The facts surrounding this dispute deal with the right of the OPA to have an employee of the OPS seconded to the position of President of the OPA as set out in the Collective Agreement. Do the Notices of Suspension respect that right? The essential character of the dispute may be whether or not the Plaintiff’s bargaining and representation rights have been infringed by the Defendants as a result of the Notices of Suspension. This would be a dispute that flows from the Collective Agreement.
[49] Alternatively, if the essential character turns on disciplinary measures taken against Mr. Skof in the Notices of Suspension, given that Mr. Skof continues to be an employee, the disciplinary measures taken by the Chief may fall under Part V of the PSA or there may be a jurisdictional issue that should be dealt with by way of an Application for Judicial Review to the Divisional Court.
[50] Consequently, in any of these scenarios, the Superior Court does not have jurisdiction over the dispute and it is not for this Court to determine the proper venue for the dispute other than by making a determination that it is not by way of this Statement of Claim as drafted. The Plaintiff’s claim is therefore dismissed.
Costs
[51] The parties are encouraged to resolve the issue of costs. If they are uable to do so, the Defendant will have 30 days from the date of this Endorsement to submit costs submissions. The Plaintiff will have 30 days thereafter to respond. Each written costs submissions will be no longer than 5 pages in length, excluding the attachments.
Justice Marc R. Labrosse
Date: December 20, 2019
COURT FILE NO.: CV-19-79708
DATE: 2019/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: MATTHEW SKOF and OTTAWA POLICE ASSOCIATION, Plaintiffs/Responding Party
AND
CHARLES BORDELEAU and OTTAWA POLICE SERVICES BOARD, Defendants/Moving Party
BEFORE: Justice Marc R. Labrosse
COUNSEL: Paul Champ and Bijon Roy, for the Plaintiffs/Responding Party
Ronald F. Caza, for the Defendants/Moving Party
ENDORSEMENT
Justice Marc R. Labrosse
Released: December 20, 2019