Award Number 11-003

View full-text of this award in PDF or see Summary below

Award Date:	2011-02-01
Arbitrator:	Knopf, P. View awards by Knopf, P.
Municipality:	Toronto View awards from Toronto
Region:	Central View awards from Central
Classifications:	Arbitrability, Management Rights
Grievor:	Association
Appearances:	R. Aveling, J. Mulcahy and others, for the Association M. Hines, M. Hamilton, for the Employer
Length of Award:	38 pp
Collective Agreements Cit.	Art. 3
Statutory Cit.	Police Services Act, ss. 31, 41, 42, 119, 120, 126, 128, Part VO. Reg. 926, O. Reg. 546/99, Criminal Code of Canada, s. 5, 27, 34 and 37

Summary

---

Arbitrability   - Collective agreement limitations - Matters outside agreement - Uniform members - Chief issued procedure dealing with suspect apprehension pursuit - Association alleging one component of procedure not consistent with collective agreement, Regulations under Police Services Act and Criminal Code - Board contending matter outside collective agreement since procedure is a routine order falling within scope of day-to-day operational functions and Police Services Act reserves such operational decisions exclusively to a chief - Arbitrability of grievance turns on essential nature of the dispute - Crux of this dispute whether impugned phrase in the procedure complies with the law - Contractual compliance a secondary matter - Real issue not arising out of collective agreement - Arbitrator lacks jurisdiction - Grievance dismissed.

Management Rights   - Routine orders - Uniform members - Chief issued procedure dealing with suspect apprehension pursuit - Association alleging one component of procedure not consistent with collective agreement, Regulations under Police Services Act and Criminal Code - Board arguing dispute raises an issue outside scope of its statutory responsibilities, outside collective agreement and outside jurisdiction of an arbitrator - Association contending arbitrator has jurisdiction to determine whether procedure violates collective agreement as an unreasonable exercise of management rights - Procedural order was issued not by board but by chief, exercising a function exclusively mandated to a chief pursuant to s. 41 of PSA - Management rights clause not governing matters that fall within chief’s operational decision-making powers - Procedural order outside scope of board’s authority - Arbitrator lacks jurisdiction - Grievance dismissed.

---

Facts

The association filed a grievance alleging that a procedural order issued by the chief was inconsistent with the collective agreement, the Police Services Act and Regulations thereto, and the Criminal Code. The board’s position was that the grievance was inarbitrable. This award determined only the jurisdictional issue. Procedure 15-10, entitled “Suspect Apprehension Pursuit”, had been in existence for some time. The association challenged only one aspect of its recent version. Procedure 15-10 directed police officers with respect to the discharge of firearms towards the driver of a motor vehicle. The provision questioned by the association read: Members are prohibited from discharging a firearm at the operator or occupant(s) of a motor vehicle unless there exists an immediate threat of death or grievous bodily harm to the officer(s) and/or members of the public by means other than the vehicle. In particular, the association challenged the phrase “by means other than the vehicle”. The association contended that this phrase was inconsistent with s. 42 of the PSA (duties of a police officer), with Regulation 926 (equipment and use of force), Regulation 546/99 (suspect apprehension pursuits) and with ss. 5, 27, 34 and 37 of the Criminal Code. The association also contended that the phrase was inconsistent with the management rights clause of the collective agreement, Article 3, which imposed on the board a duty to refrain from exercising the rights listed in that article in a “discriminatory manner or without reasonable cause” or in a manner inconsistent with the PSA and regulations. Pursuant to Article 3 a claim that the board had exercised its management rights in a discriminatory manner or without reasonable cause could be the subject of a grievance.

Argument

The board objected that the association was challenging a “routine order” issued by the chief, a matter which did not arise out of the collective agreement. The board argued that it had no authority over the details of procedural orders such as this one, which were within the scope of day-to-day managerial functions reserved by statute to the chief. The board referred to the clear demarcation under the PSA between the duties of a chief (s. 41) and the duties of a board (s. 31). A board was statutorily mandated to “establish policies for the effective management of the police force”, but a chief had exclusive authority to operationalize those policies. The board argued that Regulations 926, 421 and 3/99 also reflected a legislative intent to segregate the responsibilities of a chief and a municipal police board. The board further argued that the procedure could not be challenged under Article 3 of the collective agreement, because the management rights clause was subject to the PSA, particularly ss. 31, 41, Part V (discipline) and s. 120 (negotiations). An arbitrator could not determine the reasonableness of the procedure and potential discipline flowing from non-compliance, because an arbitrator had no jurisdiction over matters of discipline. Since a board could not interfere with operational decisions, it could not be held accountable at arbitration for the alleged illegality or unreasonableness of the procedure. The board suggested that any discipline flowing from non-compliance could be determined by the Ontario Civilian Police Commission, while the legality of the procedure could be determined through a judicial review application to the Ontario Superior Court. The association rejected those suggestions, and contended that arbitration was the proper forum for this dispute. According to the association, the arbitrator had jurisdiction to determine this grievance under Article 3. The arbitrator had jurisdiction to decide whether management rights were being exercised without reasonable cause; and the reasonableness of procedure 15-10 should be determined before a police officer was put in the situation of having to choose whether to comply or face disciplinary sanctions. The association argued that the collective agreement was binding on all members of the force, including the chief, and his powers under s. 41 had to be exercised in accordance with the collective agreement. The association submitted that the procedure should be viewed not as an operational matter but as a policy affecting the administration of the collective agreement and the work of police officers. The association also asserted that the dividing line between powers of a chief versus powers of a board was not as clear as suggested by the board, especially in the area of labour relations. The association relied on case law to support its argument that a police services board could be held liable for the acts of a chief, particularly in employment and human rights matters.

Award #

The issue before the arbitrator was not the merits of the association’s grievance, but whether she had jurisdiction to hear and determine the grievance. The association’s assertion that she did have such jurisdiction was based on its view that because members could face disciplinary sanctions if they disobeyed the procedural order, the reasonableness and the validity of the order could and should be determined by arbitration, as a matter concerning the application and administration of the management rights clause in the collective agreement. The board’s contention that the arbitrator lacked jurisdiction was based on its view that this case concerned the interpretation of the Criminal Code, the Police Services Act and Regulations, not the collective agreement or anything that fell within the board’s authority. Several key points emerged from the case law. The first was that a chief of police could not be equated with a police services board. The second was that recognition of their different statutory mandates was critical to an understanding of their powers and responsibilities, of who had oversight over them, and in what forum. Whether the arbitrator had jurisdiction depended on the essential character of the dispute, per Weber (infra). In order for an arbitrator to have jurisdiction, the matter had to arise from the collective agreement and fall within the ambit of the agreement. Although the courts had tended to recognize a wide scope of jurisdiction for arbitrators in employment related matters, the policing context was different. Specific areas within policing employment, such as discipline, were excluded from an arbitrator’s authority. In order to determine the essential character of the dispute it was necessary to look beyond the wording of the grievance, to examine the scope of the claim and its implications. The crux of this dispute was the impugned phrase in the procedural order and whether it complied with the law. The primary issue was statutory validity. Contractual compliance would flow from that determination, but only as a secondary matter. The essential character of the dispute, therefore, was the interpretation of the Police Services Act and the Criminal Code, an examination of the powers of a chief and an application of the regulatory edicts governing the use of force and firearms. The essential character of the dispute did not arise out of the collective agreement. Nor did the dispute fall within the ambit of the agreement. The procedural order was not a matter of management rights or obligations; it could not fall within the scope of Article 3 because it was an operational matter within the exclusive authority of the chief. The procedure, both on its face and in effect, was an operational order. It was a practical instruction, not a policy statement. As such, it fell outside the authority of the board, pursuant to s. 31 of the PSA. This did not mean that there could be no arbitral review of matters affecting the employment rights of police officers. There were many aspects of policing which were governed by a board’s functions under s. 31 and which, at the same time, were also governed by the management rights clause under a collective agreement. However, given its essential character, this dispute was not one of them. The management rights clause did not purport to deal with day to day operational matters. The real issue between the parties directly related to and depended upon statutory interpretation, not contractual rights. The procedure was issued pursuant to the chief’s authority under s. 41. It was not issued by the board and was outside the scope of the board’s authority. There were other forums in which the procedure could be challenged: in a disciplinary proceeding, if a police officer raised “lawful excuse” as a rationale for refusing to follow the procedure; alternatively, the association could seek a ruling from the court through a judicial review reference. However, the dispute was not one over which an arbitrator had jurisdiction. Grievance dismissed.

Authorities Cited

• Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Assn. (1975), 8 O.R. (2d) 65 (O.C.A.) • Pembroke (City) Police Services Board and Kidder, [1995] 22 O.R. (3d) 662 (O.S.C.) • Heritage Custom Jewelers v. Metropolitan Toronto (Municipality) Police Services Board, 2000-01-17 (O.S.C.) • Odhavji Estate v. Woodhouse et al. and Metropolitan Toronto Chief of Police, [2003] 3 S.C.R. 263 (S.C.C.) • King v. Toronto Police Services Board [2009] O.H.R.T.D. No. 628 • Lloyd Washington v. Ontario Human Rights Commission and Toronto Police Services Board et al., [2009] H.R.T.O. 217 • Durham Regional Police Assn. and Durham Regional Police Force (Albertyn) CanLII 45580 • Ontario Provincial Police Assn. and Ontario (Ministry of Government Services) (July 6, 2010, Trachuk) • Toronto (City) Police Services Board v. Toronto Police Assn., [2004] O.J. No. 988 • Toronto Police Services Board and Toronto Police Services Assn. (Oct. 24, 2010, Surdykowski) • Waterloo (Regional Municipality) Police Services Board (1999), 85 L.A.C. (4th) 227 (Knopf), aff’d 135 O.A.C. 86 (S.C.J.) • Durham (Regional Municipality) Police Services Board (2007), 164 L.A.C. (4th) 225 (Knopf) • Heasman and Whitway v. Durham Regional Police Services Board et al. (O.C.A. C41825, Nov. 29, 2005) • West Vancouver Police Board and West Vancouver Police Assn. (2010), 195 L.A.C. (4th) 196 (Hall) • Praskey v. Metropolitan Toronto Police Services Board (1997), 143 D.L.R. (3d) 298 (O.C.A.) • Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.)

View full-text of this award in PDF