Award Number 20-001

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Award Date:	2020-04-06
Arbitrator:	Bendel, Michael View awards by Bendel, Michael
Municipality:	Orangeville View awards from Orangeville
Region:	Central View awards from Central
Classifications:	Associations
Grievor:	Cst. S. Fisher
Appearances:	K. Rowen and S. Chartrand, for the Association, for the Association D. Mezzabotta, for the Grievor, for the Employer
Length of Award:	7 pp
Collective Agreements Cit.	----
Statutory Cit.	Police Services Act; Criminal Code

Summary

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Associations   Duty of fair representation - Refusal to provide grievor with legal representation during investigation under Police Services Act - Association did not have exclusive power to represent employees in relation to charges under PSA - Grievance dismissed.

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Facts

The grievor, a police constable with the Orangeville Police Service, was notified in August 2018 that he was being investigated for the unauthorized removal and disclosure of service property. The association offered to represent him during the investigation but it refused to provide him with legal counsel. No disciplinary charges were laid under the Police Services Act. However, in December 2018 the grievor was charged under the Criminal Code, R.S.C. 1985, c. C-46 with one count of disclosure of a private communication and one count of breach of trust by a public officer. The Criminal Code charges were based on the same facts as those at issue in the investigation under the PSA. The grievor made several requests to the association to cover his legal costs in defending the criminal charges, but the association denied his requests. In May 2019 the grievor filed a rights dispute conciliation application, alleging that the association failed to represent him fairly by refusing to provide him with legal representation in relation to the investigation under the PSA. When conciliation failed to resolve the dispute, the matter proceeded to arbitration as a grievance under the PSA. The association brought a preliminary objection, alleging that the grievance was inarbitrable by reason of its subject matter.

Argument

The association acknowledged that, pursuant to the Ontario Court of Appeal’s decision in Renauld v. Lasalle (Town of) Police Association (infra), the arbitrator had jurisdiction to hear a duty of fair representation grievance. However, the association maintained that the grievance should be dismissed because the duty of fair representation did not include an obligation to represent members charged with breaches of the PSA. The grievor’s representative relied on case law concerning the proper forum for a dispute between a police officer and a police association, as well as the Supreme Court of Canada’s decision in Canadian Merchant Service Guild v. Gagnon (infra). She argued that the preliminary objection should be dismissed and the matter should proceed to a hearing on the merits.

Award #

In Gagnon the Supreme Court of Canada held that the duty to represent employees arises out of a bargaining agent’s exclusive powers to act on behalf of employees in the bargaining unit. Subsequent case law, including Arbitrator Starkman’s second award in Lafrance and North Bay Police Services Board (infra), followed the clear and obvious corollary in Gagnon: namely, that the duty applies only in respect of matters over which a bargaining agent has an exclusive power of representation. The arbitrator agreed with the conclusion in Lafrance that, because a police officer’s association did not have exclusive authority to represent the officer in defence of charges under the PSA, the duty of fair representation could not be invoked in relation to charges brought under the Act. Accordingly, he upheld the association’s preliminary objection and dismissed the grievance.

Authorities Cited

• Renaud v. LaSalle (Town of) Police Assn. (2006), 216 OAC 1; 154 L.A.C. (4th) 154 (ONCA) • Cumming v. Peterborough Police Assn. 2013 ONCA 670 (CanLII) • Cumming v. Peterborough (City) Police Assn., 2013 ONSC 1544 • Alessandroni and Toronto Police Assn. (unreported) Anderson; July 15, 2016 [OPAC # 16-005] • Dacosta and Brantford Police Assn. (unreported) Bendel; July 8, 2019 [OPAC # 19-004] • LaFrance and North Bay Police Services Board [2009] O.L.A.A. No. 313; (2009), 180 L.A.C. (4th) 385; OPAC # 09-001 • LaFrance and North Bay Police Assn. et al. [2009] O.L.A.A. No. 675; (2010), 187 L.A.C. (4th) 381; OPAC # 09-010 • Luis Lopez, [1989] OLRB Rep. 464 (Ontario Labour Relations Board) • Toronto District School Board, [2002] O.L.R.D. No. 2560 (OLRB) • Bruce-Grey Catholic District School Board, [2003] O.L.R.D. No. 3081 (OLRB) • Sault Ste. Marie Police Assn. and Sault Ste. Marie Police Services Board (Oct. 14, 2005) [OPAC # 15-016]; (2006) 144 L.A.C. (4th) 221 • Canadian Merchant Service Guild v. Gagnon, [1984] S.C.R. 509 ** This award has been selected for publication in Labour Arbitration Cases.

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