George v. Anishinabek (Police Service)

George v. Anishinabek (Police Service) Collection Decisions of the Court of Appeal Date 2014-08-15 Neutral citation 2014 ONCA 581 Docket numbers C57883 Judges Doherty, David H.; Cronk, Eleanore Ann; Rouleau, Paul S. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: George v. Anishinabek (Police Service), 2014 ONCA 581 DATE: 20140815 DOCKET: C57883 Doherty, Cronk and Rouleau JJ.A. BETWEEN Derek George Respondent and Police Governing Authority – Anishinabek Police Service Appellant and Chief John Syrette – Anishinabek Police Service Appellant David G. Cowling and Alex Sinclair, for the appellants Leo A. Kinahan, for the respondent Heard: April 23, 2014 On appeal from the order of the Divisional Court (Justices Anne M. Molloy, Ian V. B. Nordheimer and Barbara A. Conway), dated March 6, 2013, with reasons reported at 2013 ONSC 1417. Doherty J.A.: I Overview [1] The appellants appeal to this court pursuant to leave granted on October 30, 2013. [2] The respondent, Derek George, a constable employed by the appellant, Anishinabek Police Service (“APS”), brought an application for judicial review in the Divisional Court. He sought an order quashing a decision of the Police Governing Authority (“PGA”) extending the time for service upon Mr. George of a notice of a discipline hearing into allegations of discreditable conduct made against Mr. George by his chief of police. [3] Mr. George was successful in the Divisional Court. That court held that the failure to give him notice of the application to extend time for the service of the notice breached the applicable standards of procedural fairness. The court quashed the order granting the extension and directed a new hearing before different members of the PGA. The court also ordered that Mr. George be paid his salary for the period during which he had been suspended without pay. [4] On appeal, the appellants contend that the Divisional Court had no jurisdiction to hear the application for judicial review. They argue, relying on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and its progeny, that the dispute over Mr. George’s entitlement to notice of the application to extend time for service of notice of the discipline proceedings is a dispute relating to discipline, a matter squarely within the ambit of the collective agreement between APS and Mr. George’s union. The appellants contend that only an arbitrator appointed under the terms of the collective agreement has jurisdiction to decide whether Mr. George was entitled to notice. [5] The appellants acknowledge that the Divisional Court cannot be faulted for assuming jurisdiction as the appellants did not raise the jurisdictional argument in the Divisional Court. That argument was made for the first time on the application for leave to appeal to this court. [6] The appellants also submit, assuming the Divisional Court had jurisdiction, that it erred both in finding procedural unfairness and awarding what the appellants characterize as damages for the alleged breach. [7] Counsel for Mr. George submits that this court should not hear the jurisdictional argument because it was not raised in the Divisional Court. He further submits that the jurisdictional argument fails as the order granting the extension of time to serve Mr. George with the notice of the discipline hearing was not arbitrable under the terms of the collective agreement and was, therefore, properly subject to judicial review. On the merits, counsel argues that the Divisional Court was correct in holding that the respondent was denied procedural fairness when he was not given notice and that the remedial powers on the judicial review application extended to an order requiring the APS to pay Mr. George his salary for the time period during which he was improperly suspended without pay. [8] Although an appellate court is understandably reluctant to consider an issue not raised in the court below, I would address the merits of the appellants’ jurisdictional argument. I would do so for three reasons. First, it is potentially determinative of the appeal. Second, apart from the collective bargaining agreement itself, the terms of which are not in dispute, the jurisdictional argument can be fully considered without adding anything to the record that was before the Divisional Court. This court is not being asked to address a new issue on a record that does not speak to that issue. Nor is this court being asked to augment the existing record with untested contentious evidence relating to the new issue. Third, addressing the merits of the jurisdictional issue for the first time in this court does not prejudice Mr. George in any manner that cannot be properly addressed by an appropriate cost order. [9] As to the merits of the jurisdictional argument, I would hold that the Divisional Court had no jurisdiction to consider the issue raised on Mr. George’s judicial review application. Under the authority of Weber, an arbitrator appointed under the collective agreement had exclusive jurisdiction to determine whether Mr. George was entitled, as a matter of procedural fairness, to notice of the application for the extension of time to bring discipline proceedings against him. I would allow the appeal on that ground alone and would not address the other issues. II The employer-employee relationship [10] The resolution of the jurisdictional argument requires an understanding of the employer-employee relationship between Mr. George and the APS, particularly as it concerns discipline-related matters. That relationship is forged by the combination of a collective agreement, the APS Code of Conduct and Professionalism (the “Code”) and applicable provincial and federal legislation. [11] The APS is an independent Aboriginal police service created in 1992 by a tripartite agreement among the federal and provincial governments and several First Nations in Ontario. The APS mandate includes the provision of effective, efficient and culturally-sensitive police services within APS territories. The tripartite agreement provides for the creation of the PGA. Each of the First Nations signatories to the agreement is represented on the PGA. The PGA is responsible for administering the APS and is given various responsibilities under Article 5 of the tripartite agreement, including the responsibility to: maintain an APS Code of Conduct to deal with discipline matters for officers and civilian staff … [12] Mr. George has been employed as a constable by APS since 1995. Constables employed by APS are not police officers within the definition in the Police Services Act, R.S.O. 1990, c. P.15, s. 2(1), although they are appointed as First Nations Constables with authority to perform specified duties: s. 54(1). Constables employed by the APS have the powers of a police officer when performing those specific duties: s. 54(3). The disciplinary procedures set out in Part V of the Police Services Act, and applicable to police officers, do not apply to constables employed by the APS. [13] The PGA is a party to a collective agreement with the Public Service Alliance of Canada (the “union”). Article 2 of that agreement makes the union the exclusive bargaining agent “with respect to all matters” involving employees of the APS, subject to the exceptions identified in Article 2. Mr. George as a constable is an employee for the purpose of the collective agreement and is part of the bargaining unit. [14] Article 4 of the collective agreement, the “management rights” provision, recognizes that it is the “exclusive function” of the PGA “[t]o maintain order, discipline and efficiency”. Article 4.02 reads: The Police Governing Authority maintains the right to discipline its employees for just cause, following the principles of progressive discipline. A claim by an employee that he/she has been disciplined without just cause may be the subject of a grievance in accordance with the grievance procedure outlined in this Agreement. [15] The grievance procedure referred to in Article 4.02 is detailed in Article 54 of the collective agreement. Article 54.01 defines grievance: For the purpose of this Agreement, a grievance or complaint is defined as a difference arising either between an employee and the Police Governing Authority or between the parties hereto relating to the interpretation, application, administration or alleged violation of this Agreement … [16] Article 54 goes on to describe a two-step procedure applicable to individual grievances. The first step involves the employee’s immediate supervisor and the second involves the police chief. Article 54.15 provides that if the police chief renders a decision that is unsatisfactory to the employee, the employee may refer the matter to arbitration. [17] The collective agreement is governed by the provisions of the Canada Labour Code, R.S.C. 1985, c. L.2. Section 57(1) requires that parties to a collective agreement resolve disputes concerning the application, interpretation, administration or alleged contravention of the agreement by arbitration. Section 58(1) contains a privative clause declaring that every order or decision of the arbitrator is “final and shall not be questioned or reviewed in any court.” [18] The PGA policy governing the disciplining of employees, including constables, is found in the Code. The Code defines misconduct for the purposes of discipline and establishes three procedures for addressing discipline-related complaints. Of the three, a formal discipline hearing before a person designated by the chief of police is reserved for more serious allegations. [19] An employee who is found to have engaged in misconduct is subject to various penalties under the Code, including dismissal, demotion and suspension. The discipline decision made at the formal discipline hearing is subject to automatic review by the discipline committee of the PGA. If the employee is dissatisfied with the decision of the discipline committee, he or she may request a further appeal before the PGA as a whole. The PGA may or may not entertain that further appeal. [20] Under the Code, the employee who is the subject of the discipline proceedings is entitled to notice of the formal hearing. That notice must be served within six months of when the police or the PGA became aware of the relevant facts. The PGA can extend the six-month period for an unspecified further time if satisfied that “it was reasonable under the circumstances to delay serving the notice.” An extension can be granted even after the expiry of the six-month time period. [21] The terms of the Code referable to discipline procedures and the provisions of the collective agreement referable to disciplinary decisions must be read together and as a whole: see McDonald v. Anishinabek Police Service (2006), 83 O.R. (3d) 132 (Div. Ct.), at para. 36; Anishinabek Police Service v. Public Service Alliance of Canada, 2012 ONSC 4583, [2012] O.J. No. 3824 (Div. Ct.), at paras. 31-33 (“McCue”). Disciplinary proceedings can potentially proceed through the following steps: · an allegation of misconduct is made against the employee and a notice of hearing is served (the Code); · a formal discipline hearing is held before a person appointed by the chief (the Code); · a disposition by that hearing officer is made (the Code); · the discipline committee of the PGA reviews the disposition made by the hearing officer (the Code); · the PGA may consider an appeal from the discipline committee (the Code); · the employee grieves the discipline decision to his or her immediate supervisor (article 54.06 of the collective agreement); · the employee further grieves to the police chief (article 54.07 of the collective agreement); and · the employee goes to arbitration (article 54.15 of the collective agreement). III The proceedings against Mr. George [22] In July 2011, while Mr. George was on duty, he was allegedly involved in a physical altercation with his son. His son suffered significant injuries. Police Chief Syrette initiated an investigation into the events. On July 28, 2011, he suspended Mr. George with pay and notified him of the ongoing criminal investigation into the altercation with his son. The notice also stated: The criminal allegations against you are serious in nature. The investigation into these allegations clearly supports the commencement of proceedings under the Anishinabek Police Service Code of Conduct and Professionalism. [23] The criminal investigation was completed in October 2011 and Mr. George was advised that criminal charges would not be laid against him. As of November 4, 2011, Mr. George, who remained on paid suspension, was allowed to perform administrative duties. [24] On September 20, 2012, more than a year after the investigation into Mr. George’s altercation with his son had commenced, Chief Syrette applied for and obtained permission from the PGA to serve Mr. George with a notice of a formal discipline hearing. Mr. George did not receive notice of the Chief’s application and did not have an opportunity to convince the PGA that it should not exercise its powers to allow service of the notice more than six months after the Chief had commenced his investigation. [25] On September 21, 2012, Mr. George was served with a notice of hearing setting out the particulars of three allegations of misconduct under the Code. He was also served with a notice of suspension without pay effective that day. The discipline hearing did not take place. Mr. George commenced a judicial review application challenging, among other things, the failure to give him notice of the application to extend the six-month limitation period. IV The application of Weber [26] Workplace-related disputes involving an employer and employee may give rise to claims and potential proceedings under a collective agreement, labour relations statutes, human rights legislation, the common law and the Charter. Those sources may provide access to various forums in which the same factual claims may be asserted. Questions as to the appropriate forum inevitably arise. In Weber, at paras. 50-51, 67, and again, in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at paras. 22-25, the Supreme Court of Canada came down firmly in favour of the “exclusive jurisdiction model”. Under that model, if controlling legislation gives jurisdiction over disputes that arise under a collective agreement to arbitrators appointed under that agreement or to a specific statutorily-created body, that entity has exclusive jurisdiction to determine all disputes arising from the collective agreement.[1] [27] In Weber, s. 45(1) of the Labour Relations Act, R.S.O. 1990, c. L.2, gave arbitrators appointed under the collective agreement the authority to decide all questions “arising from the interpretation, application, administration or alleged violation of the agreement”. Applying the “exclusive jurisdiction model”, McLachlin J. held that the language of s. 45(1) of the Labour Relations Act effectively removed disputes arising from the collective agreement from the jurisdiction of the courts. Section 45(1) of the Labour Relations Act is for present purposes indistinguishable from s. 57(1) of the Canada Labour Code, the statute that applies to this collective agreement. [28] A determination of whether a dispute arises out of a collective agreement for the purposes of the Weber analysis requires, first, a consideration of the nature of the dispute and, second, an examination of the ambit of the collective agreement. This two-step inquiry is described in Regina Police Assn., at para. 25: … In considering the nature of the dispute the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, supra, at para. 43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of the arbitrator to decide … [Emphasis added.] [29] The genesis of the dispute between Mr. George and the appellants lies in the alleged misconduct of Mr. George while on duty in July 2011 and the Chief’s investigation of that conduct with a view to commencing discipline proceedings. Specifically, Mr. George takes issue with the fairness of the way in which the Chief applied for and obtained permission from the PGA to serve him with a notice of the discipline hearing beyond the six-month limitation period referred to in the Code. Viewed in its factual context, the essential character of the dispute between Mr. George and the appellants can only be described as disciplinary in nature: see Regina Police Assn., at paras. 28-29. [30] The second component of the Weber analysis, the requirement that the dispute concern a subject matter covered by the collective agreement, is the ground upon which counsel for Mr. George takes his stand on the jurisdictional issue. He submits that even if the dispute relates to discipline, the dispute concerns the proper procedure to be followed by the Chief and the PGA when implementing the discipline procedure described in the Code. He argues that the discipline procedure described in the Code is different from, and preliminary to, any discipline procedure covered by the collective agreement. Counsel distinguishes between disciplinary decisions and processes taken under the Code and those taken pursuant to the management rights clause in the collective agreement. According to this argument, only the latter fall within the ambit of the collective agreement under the Weber analysis. [31] I cannot accept counsel’s bifurcated concept of discipline-related disputes. Under the collective agreement, the union representing Mr. George has agreed that the PGA, as part of its management power, has the authority to discipline Mr. George for work-related conduct. The PGA in turn has agreed that any disputes over discipline shall be subject to the grievance provisions in the collective agreement. [32] The union is not a party to the Code. The PGA, as obliged by the terms of the tripartite agreement, has established the Code reflecting the policies and procedures it will follow in the exercise of its discipline powers. However, the authority to discipline Mr. George for work-related misconduct lies in the collective agreement. The terms of the Code are the means by which the PGA has chosen to exercise its rights under the collective agreement to “maintain order, discipline and efficiency”. Steps taken by the PGA pursuant to the discipline-related policies and procedures in the Code are no less an exercise of management powers under the collective agreement than is the ultimate determination to discharge or otherwise discipline an employee at the end of the process. [33] Counsel for Mr. George’s attempt to distinguish between discipline-related proceedings under the Code and discipline-related proceedings under the collective agreement would significantly undermine the policy animating the choice of the exclusive jurisdiction model in Weber. As McLachlin J. said, at para. 46, in rejecting a concurrent jurisdiction model: The final difficulty with the concurrent actions model is that it undercuts the purpose of the regime of exclusive arbitration which lies at the heart of all Canadian labour statutes. It is important that disputes be resolved quickly and economically, with a minimum of disruption to the parties and the economy. To permit concurrent court actions whenever it can be said that the cause of action stands independent of the collective agreement undermines this goal … [34] In my view, allowing Mr. George to challenge, by way of judicial review, what are essentially interim rulings made in the course of his discipline proceedings, would have the same negative consequences as would the adoption of the concurrent jurisdiction model. Judicial review of decisions made during the Code stage of the discipline process would potentially delay and fracture the hearing and resolution of discipline-related matters. Placing all discipline-related matters within the exclusive jurisdiction of the arbitration process in the collective agreement would allow a single entity to oversee all complaints made by the employer or employee at the various stages of the discipline process. The arbitrator, in exercising that authority, would be in a position to resolve disputes “quickly and economically with a minimum of disruption to the parties and the economy”. [35] Counsel for Mr. George referred to McDonald and McCue, two decisions of the Divisional Court involving the APS and discipline-related disputes with constables employed by the APS. He submits that these cases support his contention that there is a distinction between discipline-related matters under the Code, which are subject to judicial review, and discipline-related matters taken under the auspices of the collective agreement, which are subject to the grievance procedure in the collective agreement. [36] I agree that both cases are helpful in describing the employer-employee relationship between a constable and the APS. I also agree that both cases recognize that the discipline-related process involves both procedures described in the Code and the grievance procedure provided for in the collective agreement. However, neither case addresses the jurisdictional argument made by the appellants here. There is no mention of Weber or the exclusive jurisdiction model analysis found in Weber in either case. [37] In McDonald, a constable employed by the APS was dismissed for misconduct. He commenced a judicial review application alleging procedural unfairness. At the same time, he brought an application before the Canada Industrial Relations Board (“Board”) under the Canada Labour Code. He proceeded before the Board first. [38] The Board dismissed the employee’s application holding that as there was no collective agreement in place when the employee was dismissed, the Board had no jurisdiction to hear the complaint: McDonald, at paras. 14-19. Although the Board’s decision was initially appealed, that appeal was abandoned. [39] The employee then proceeded with the judicial review application in the Divisional Court. No one argued, understandably in light of the outcome before the Board, that Weber applied to oust the Divisional Court’s jurisdiction on the judicial review application. In the Divisional Court, the argument focused on whether the decision made by the employer under the auspices of the Code was the kind of decision that was challengeable by way of judicial review: McDonald, at paras. 38, 49, 55, 68-80. That issue is very different from, and has no relevance to, the jurisdictional argument raised by the appellants in this case. [40] McCue involved judicial review applications brought by the employer from arbitration awards made under the authority of the grievance provisions in the collective agreement. The employer had taken discipline proceedings under the Code against an employee. The adjudicator appointed under the Code imposed certain penalties. The employee grieved those penalties under the terms of the collective agreement. The employer argued before the arbitration boards that they had no jurisdiction to hear the grievances and were bound by the decisions reached by the adjudicator appointed under the Code. The arbitration boards rejected this submission and the employer sought judicial review of those decisions. The Divisional Court rejected the employer’s contention that the arbitration boards were bound by the findings or determinations made by the adjudicator appointed under the Code. [41] The exclusive jurisdiction analysis in Weber had no relevance in McCue. That case involved applications for judicial review from the decisions of two arbitration boards. Weber is not concerned with judicial review of arbitrators’ decisions, but rather with the selection of the appropriate forum in which to conduct the initial proceeding. [42] One passage from McCue does, however, offer some support for the appellants’ position on this appeal. The court said, at para. 45: APS adopted a code of conduct as it was required to do by the tripartite agreement. APS also entered into a collective agreement with the Union that provides the right to arbitrate discipline and dismissal decisions. These separate provisions have to co-exist. APS cannot avoid its contractual obligations under the collective agreement by reliance on the tripartite agreement. The Union is not a party to the tripartite agreement, and unilateral action by the APS in entering into that agreement cannot oust the right of the Union to pursue a grievance under the collective agreement. [43] I think the above passage correctly describes the relationship between the Code and the collective agreement. Once it is acknowledged that nothing in the Code can detract from the union’s right to pursue a discipline-related grievance under the collective agreement, it follows applying the exclusive jurisdiction analysis in Weber that the forum identified in the collective agreement has exclusive jurisdiction to hear discipline-related complaints. V Conclusion [44] I would allow the appeal, set aside the order of the Divisional Court and quash the application for judicial review as brought without jurisdiction. Mr. George must seek his remedies through the grievance process in the collective agreement. [45] Counsel for the appellants conceded that if the appellants were successful on the jurisdictional issue, the costs order made in the Divisional Court should stand in light of the appellants’ failure to raise the jurisdictional argument in that court. I agree with that concession. Counsel did submit that the appellants should have their costs in this court. Again, I agree with that submission. However, in my view, in all the circumstances, those costs should be modest. I would award costs in the amount of $5,000, inclusive of disbursements and relevant taxes. Those costs can be set off against the costs awarded to Mr. George in the Divisional Court, assuming, of course, that the appellants have not paid those costs to Mr. George. RELEASED: “DD” “AUG 15 2014” “Doherty J.A.” “I agree E.A. Cronk J.A.” “I agree Paul Rouleau J.A.” [1] Weber recognizes an exception to the arbitrator’s exclusive jurisdiction where the remedy sought cannot be ordered by an arbitrator. In those cases, the court has discretion to hear the dispute and grant the remedy: see Weber, at paras. 57, 67. The applicability of the “remedy” exception generated the difference between the majority and minority in Weber concerning jurisdiction over the Charter claim. The “remedy” exception is not engaged here.