Award Number 20-009

Brantford Police Association
- and -
Brockville Police Services Board

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Award Date: 2020-09-09
Arbitrator: Brownlee, D.
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Municipality: Brantford
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Region: South West
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Classifications: Associations, Procedural Issues
Grievor: J. Emmons, Complainant
Appearances: J. Emmons, for the Complainant, for the Association
C. Jones, for the Association, for the Employer
Length of Award:11 pp
Collective Agreements Cit. ----
Statutory Cit. Police Services Act; Statutory Powers and Procedures Act, s. 16.1(3)


Associations   Duty of fair representation - Second interim award in duty of fair representation proceeding granted complainant’s request for adjournment - Complainant now requesting resumption of hearing - Instant decision addressing procedural matters raised by complainant since first interim award was issued - Third interim award.

Procedural Issues   Two prior interim awards issued in duty of fair representation proceeding - Instant decision addressing procedural matters raised by complainant following first interim award including in-person hearing and assertion of privilege - Third interim award.


The complainant alleged that the association failed to represent him fairly in resolving a dispute with the employer concerning benefits top-up. The arbitrator issued two prior interim awards in this duty of fair representation (DFR) complaint. The first award [OPAC #20-003] addressed a number of procedural issues. The second award [OPAC #20-004] granted the complainant’s request for an adjournment sine die. The complainant was now requesting that the arbitrator schedule a date to continue the hearing, stating that many of the issues and grounds raised in support of his adjournment request were now resolved. This third interim award dealt with procedural issues raised by the complainant since the first interim award: merits of the DFR, in-person hearing, reconsideration of orders, compliance with production orders, witnesses, and a prior settlement/MOS between the complainant and the employer. The third interim award also clarified issues which were not before the arbitrator: recusal, allegations of criminal offences, and complaints against the Ontario Police Arbitration Commission (OPAC).


On July 8, 2020 the complainant requested that the hearing resume. The association proposed a videoconference hearing on the Zoom platform. The complainant objected, asserting that his medical condition prevented his participation via Zoom. The association disputed that the medical information supported the complainant’s position. The complainant requested that the arbitrator reconsider certain orders she issued in the first interim award, pertaining to abuse of process, production of documents and a summons to a witness. The association opposed the complainant’s request for reconsideration.

Award #

The arbitrator clearly stated in the first interim award that no evidence had yet been called. Thus, despite the complainant’s assertions that the arbitrator had ignored his evidence and dismissed his complaint, the merits of the DFR had yet to be determined. In the interests of ensuring that the complainant would not be disadvantaged in a Zoom hearing because of his disability, the arbitrator accepted his position that his medical condition prohibited his participation in a Zoom hearing. Therefore, the hearing would resume in-person on January 29, 2021. The foundation of the complainant’s request that the arbitrator reconsider certain orders she made was that he disagreed with those orders. However, there was no basis to amend those orders and she declined to do so. In the first interim award the arbitrator addressed the complainant’s request for a copy of an accounting report prepared for the employer; however, for reasons given in that award, she did not order the association to produce the report. The association was thus not in breach of her order that the parties produce arguably relevant documents. The complainant expressed concern that a witness might not attend. Based on the association’s undertaking to call this witness, the arbitrator had declined to issue a summons and she now stated her expectation that the association would call him to testify. As discussed in the first interim award, one of the issues before the arbitrator was whether she should dismiss the DFR complaint because it was already covered by a MOS. Because the MOS was a confidential document, the arbitrator had ordered that it be produced only for the purpose of determining the issue before her and subject to confidentiality conditions. The complainant claimed that the arbitrator had misstated his position; and he asserted that the MOS was privileged and should not be produced. Given his now clearly stated position that the MOS was privileged and inadmissible, the arbitrator amended her prior order to allow the complainant to make his submission. Accordingly, he was directed to identify what type of privilege attached to the MOS and the parties were directed to make submissions, following which the arbitrator would rule on the issue of admissibility. Finally, by way of clarifying what was not in issue: the complainant no longer intended to pursue his earlier recusal motion; the arbitrator’s jurisdiction did not extend to any allegations that the association’s conduct amounted to criminal offences; and her jurisdiction did not encompass any allegations or complaints regarding the OPAC.

Authorities Cited


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