Police Newsletter

October 2016


Hearing Officer Makes Conditional Order for Officer to Undergo Independent Medical Examination

In a recent case, Cst. B and the Durham Regional Police Service, a Hearing Officer made an order that, if the subject officer was unable to attend a disciplinary hearing on the date scheduled for its resumption, he would be required to attend a medical examination by an independent doctor, and to provide his relevant medical records.

Cst. B was the subject of disciplinary proceedings for discreditable conduct arising from alleged workplace harassment. In the midst of the prosecution’s cross-examination of Cst. B, the hearing was adjourned. During the adjournment, Cst. B suffered a work-related back injury that, he alleged, rendered him incapable of participating in the resumed disciplinary hearing.

Cst. B returned to work on modified duties in May 2016, but alleged that he remained incapable of participating in the hearing as a result of a psychiatric illness. He provided a medical note stating that his modified work duties were not onerous, or mentally physically demanding. By contrast, because of his ongoing psychiatric condition, Cst. B suffered from “impaired cognitive functioning” and could not take part in the disciplinary proceedings.

Cst. B brought a motion to adjourn the disciplinary hearing for a minimum of 90 days. The Service, represented by Johnstone & Cowling LLP, opposed the motion and brought a cross-motion seeking an order that Cst. B attend an independent medical examination (“IME”), and that Cst. B produce relevant medical records in order to facilitate the IME. The Service argued that the medical information previously provided by Cst. B was inadequate. Notably, Cst. B’s treating physician was acting as an advocate for Cst. B, and was therefore incapable of providing independent assistance to the Tribunal.

In support of its position, the Service relied on section 23 of the Statutory Powers Procedure Act, which empowers the Tribunal to make “such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes”. It argued that unnecessary delay amounted to an abuse of the Tribunal’s processes, and that because Cst. B put his health in issue, the Service ought to be able to require him to produce reliable evidence to enable the Tribunal to conclude whether or not he was capable of participating in the resumed hearing, with or without reasonable accommodations.

Supt. Morris Elbers, the Hearing Officer, agreed with the Service that it was incumbent upon Cst. B to support his motion for adjournment of the hearing with sufficient medical evidence, and that he had not done so. He also made the following remarks:

When I consider the length of time this case has taken to this point from the initial complaint to the present it is astonishing. I must consider fairness not only to the officer, but also to the Durham Regional Police Service.

Accordingly, Supt. Elbers refused to grant any further adjournment. Further, he indicated that, in the event that Cst. B failed to attend the resumed hearing on the scheduled dates, he would be required to attend the IME and provide the examiner with appropriate records.
It is unprecedented, or at the very least highly exceptional, for a police disciplinary Tribunal to order that an officer attend an IME.

Nevertheless, the decision in this case was squarely within the Tribunal’s authority, and provides a helpful indicator as to how the very common problem of medical adjournments may be addressed in future police discipline cases. 

Nova Scotia Police Commission Member Receives Reprimand for Uttering a Racial Slur

In our August 2016 Police Newsletter, we reported on the case of George Baker, a local councillor, mayoral candidate and member of the Board of Police Commissioners in the Nova Scotia town of Amherst. In July 2016, while working in his pizza delivery business, Councillor Baker said "I'm not your n**ger" to staff at Bambinos, a pizzeria in the town.

After complaints from the community, the town’s council considered taking disciplinary action, but declined to pursue the matter, citing advice from its solicitor to the effect that the Nova Scotia Municipal Affairs Act does not empower local councils to discipline their members for racist comments made outside of official business.

However, the Board of Police Commissioners does have the power to discipline its members under the Nova Scotia Police Act and associated regulations, which set out a code of conduct for members of local police boards. The Board met to consider the matter on September 30, 2016. A few days later, it released a decision finding that Councillor Baker’s comments were a breach of the code of conduct, and suspending him for 90 days.

The timing of the Board’s decision, which was released days before the town’s municipal elections on October 15, 2016, does not appear to have been ideal for Councillor Baker’s mayoral campaign. Councillor Baker was resoundingly defeated by Dr. David Kogon, a retired physician.

This case serves as a reminder to members of police services boards that they must hold themselves to a high standard of conduct, both while on official duties and in the course of their personal lives. 

RCMP Settles Historic Sex Discrimination and Harassment Case, Issues Apology

On October 6, 2016, Bob Paulson, the Commissioner of the Royal Canadian Mounted Police, issued an apology to female RCMP members who were victims of discrimination and harassment relating to their sex and sexual orientation in the preceding decades. The apology was part of the terms of settlement of two class proceedings filed against the RCMP on behalf of current and former members, Merlo v Attorney General of Canada and Davidson v Attorney General of Canada.

Linda Davidson joined the RCMP in 1985 and, over the following 22 years, rose to the rank of inspector. In 2009, she left the RCMP on extended medical leave, and she retired at the end of October 2012, about ten years earlier than her normal retirement age. She alleged that for nearly the entire period between 1986 and 2009, she was subjected to continuous discrimination and harassment on the basis of her sex. The alleged conduct ranged from sexualized gossip about Ms. Davidson to placing sex toys on her desk and ketchup-soaked tampons in her locker, spitting on her car and even refusing to respond to her calls for help when she was on duty. Her colleagues also made a number of comments speculating about her sexual orientation.

In March 2015, Ms. Davidson commenced a class proceeding in the Ontario Superior Court alleging that the RCMP was negligent in failing to prevent such harassment, and that its failure to do so also breached its statutory and contractual duties to provide a safe and discrimination-free workplace. The action was brought on Ms. Davidson’s own behalf and on behalf of all female RCMP officers in service between 1986 and 2009. The damages claimed on behalf of the class were $500 million in compensatory damages for mental distress, and $100 million in punitive damages, as well as additional special damages to cover medical expenses incurred as a result of the alleged discrimination and harassment.

A similar claim was commenced in the Supreme Court of British Columbia in 2012 by Janet Merlo, who had 19 years’ service with the RCMP when she left the force.

In May 2016, an agreement in principle to settle both class actions was reached, subject to a final agreement dated October 6, 2016. Under the terms of the settlement, the RCMP agreed to establish a compensation scheme under which class members would be compensated according to the nature of the harassment they suffered during their service with the RCMP, as follows:

  • $10,000 for lower-level harassment such as sexualized comments or exhibitionism, causing anxiety or humiliation;
  • $35,000 for kissing or other physical touching;
  • $70,000 for persistent conduct of a sexual nature, or reprisals;
  • $100,000 for sexual touching or aggression causing a physical wound;
  • $150,000 for intentional humiliation or emotional stress; and
  • $220,000 for forced penetrative sex and other highly aggravated conduct causing severe mental distress or inability to work.

It is thought that as many as 1,000 women may seek compensation under the scheme, which will be administered by Michel Bastarache, the retired Supreme Court justice. The RCMP has set aside $100 million to fund the scheme.

As well, at a press conference in Ottawa on October 2, 2016, Commissioner Paulson delivered a tearful apology to Ms. Davidson, Ms. Merlo and all women who had been affected by the conduct in question. He also confirmed that the RCMP would continue its efforts to eliminate harassment and discrimination within the organization.

As this case demonstrates, harassment or discrimination on the basis of any protected characteristic is an extremely serious matter that requires a decisive response on the part of an employer. The years of institutional failure on the part of the RCMP to address these ills undoubtedly affected, and in some cases destroyed, the lives and careers of many women. On a more practical level, the RCMP must not only pay compensation as part of the settlement, but must also contribute $12 million to the legal fees incurred by the plaintiffs in the course of pursuing the litigation. Employers who devise and implement effective workplace anti-harassment and anti-discrimination policies can minimize the risk that they will face similar consequences. 

Arbitrator Accepts Jurisdiction to Consider Grievance Regarding Assignment of OPP Officer

In Ontario Provincial Police Association v Ontario Provincial Police (Webb Grievance), an arbitrator held that he had jurisdiction to consider a staff sergeant’s grievance challenging the decision of the Ontario Provincial Police not to transfer him to a detachment commander position. The essential character of the dispute fell within the ambit of the collective agreement, and that position was not altered by legislation stating that “assignment” fell outside arbitral jurisdiction.

Staff Sergeant Kevin Webb took up a “duration posting” as detachment commander for the OPP in Manitowaning, on Manitoulin Island. A duration posting is a fixed-term assignment to a remote location, and OPP members receive financial incentives to take up such posts. In 2015, S/Sgt. Webb requested that, upon the completion of his posting, he be transferred to the detachment commander post in Sudbury, Ontario, which was vacant at that time. Rather than transfer S/Sgt. Webb into that role, the OPP advertised it, and S/Sgt. Webb’s application was unsuccessful.

Article 33.09 of the applicable collective agreement provided that:

To the extent that it does not interfere with the Commissioner’s right to assign personnel, the Employer undertakes to reassign an employee at the expiration of the employee’s duration posting consistent with the operational requirements of the OPP and the expressed area of preference of the employee.

The OPP also put in place a Standard Operating Procedure (“SOP”) which provided that upon completion of a duration posting, an officer is entitled to a lateral assignment or transfer. The SOP also provided that before any vacant position was advertised, the OPP was to determine whether any such officers were entitled to be transferred directly into the vacant position.

The Ontario Provincial Police Association brought a grievance alleging that in refusing to place S/Sgt. Webb in the Sudbury position, the OPP breached Article 33.09 of the collective agreement.

The OPP brought a motion challenging the jurisdiction of the arbitrator to hear the grievance. It accepted, for the purposes of its motion, that under the SOP, it was required to assign S/Sgt. Webb to the vacant post rather than advertise it. However, the SOP did not form part of the collective agreement, and breach of the SOP could not be the subject of a grievance. It further contended that Article 33.09 did not confer a right to be transferred, but merely permitted officers to express a preference, subject to the overall right of the OPP to control assignment of employees. As well, the actual decision to transfer an employee was a management right and was therefore not subject to arbitral scrutiny.

The OPP also relied on section 2(3) of the Ontario Provincial Police Collective Bargaining Act, 2006 (the “OPPCBA”). That provision has since been repealed, but it provided at the relevant time that it was the exclusive function of the OPP’s management to, amongst other things, determine assignment, and that assignments were not within the jurisdiction of an arbitrator. Section 2(2) of the same statute, however, provided for collective bargaining about the “methods for effecting… transfers”.

Arbitrator Christopher Albertyn recalled that in Regina Police Association Inc. v City of Regina Board of Police Commissioners, the Supreme Court held that in a policing context, whether a matter is arbitrable is a function of whether its essential character falls within the ambit of the collective agreement, as opposed to matters excluded from the agreement under the statutory scheme.

Turning to the collective agreement, Arbitrator Albertyn held that Article 33.09 confers more than a bare right of employees to express a preference as to the area in which they will work after a duration posting. Rather, it obliges the OPP to transfer an officer who has completed a duration posting to the area of his or her preference, subject only to the requirements that the preference does not interfere with the Commissioner’s right to assign personnel and is consistent with the operational requirements of the OPP. The Association’s grievance therefore arose from the collective agreement, not the SOP. Although the SOP was invoked in order to bolster the Association’s case, that reliance did not affect the arbitrator’s jurisdiction.

Having determined that the grievance arose out of a matter covered by the collective agreement, the only remaining issue was whether section 2(3) of the OPPCBA stripped the arbitrator of jurisdiction to hear the grievance. Arbitrator Albertyn noted that the overall right of management to assign staff was preserved under the wording of Article 33.09, which acknowledged the Commissioner’s right to assign OPP employees. Further, the grievance concerned a term of the collective agreement relating to the method for transferring employees, which was listed under section 2(2) as a matter on which the parties were permitted to bargain. Therefore, the OPPCBA did not oust the arbitrator’s jurisdiction.

Finally, Arbitrator Albertyn noted that an exercise of a management right was subject to a reasonableness requirement. It was therefore within his jurisdiction to review the OPP’s decision not to place S/Sgt. Webb into the Sudbury post to determine whether that decision was discriminatory, arbitrary or in bad faith.

Accordingly, Arbitrator Albertyn held that he had jurisdiction to hear the Association’s grievance.

This case demonstrates the reluctance of arbitrators to decline jurisdiction over matters that fall within the ambit of a collective agreement. As Arbitrator Albertyn remarked, where the essential character of a dispute arises from a collective agreement, the arbitrator must accept jurisdiction unless his or her competence is limited by statute. On the facts of this case, the statute did not exclude Arbitrator Albertyn’s jurisdiction. Further, the argument that the decision was an exercise of the management rights clause was of no assistance to the OPP, as management rights are subject to a requirement that they be exercised reasonably and in line with the terms of the collective agreement.

This newsletter is for general discussion purposes and does not constitute legal advice or an opinion. For legal advice regarding your particular circumstances, please contact us at 416 546 2103.

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