Corey Heffernan - v. -, 2020 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2020 SKPC 22 Date: May 22, 2020 File: 19-0108 Location: Prince Albert _____________________________________________________________________________ Between: Corey Heffernan - and - Prince Albert Board of Police Commissioners Corey Heffernan Unrepresented Zachary Carter For the Defendant _____________________________________________________________________________ J UDGMENT L.W. S TANG, J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff is a former employee of the defendant.

He was a Special Constable with the Bylaw Unit of the Prince Albert Police Service [PAPS]. On or about June 23, 2016, a public complaint was made against the plaintiff. The ensuing investigation resulted in three formal charges against the plaintiff [discipline charges], pursuant to provisions of The Police Act, 1990 , SS 1990-91, c P-15.01 [ The Police Act ]. A formal hearing to determine the discipline charges was held before a Hearing Officer.

[ 2 ] At the formal hearing, the plaintiff was represented by legal counsel, Mr. Peter A. Abrametz [Mr. Abrametz], and was invoiced $10,411.73 for the legal services provided. Pursuant to the relevant provisions of the collective agreement between the defendant and the Prince Albert Police Association [Association], the plaintiff claims that the defendant is required to indemnify him for his legal expenses. The defendant takes the position that in the circumstances of this case it is not required to indemnify the plaintiff for his legal expenses, and has declined to do so.

Issue [ 3 ] The issue is whether the plaintiff has proven that, by operation of the terms of the collective agreement, the defendant is contractually obligated to indemnify him for legal expenses incurred by him in the amount of $10,411.73, as detailed in the invoice from Mr. Abrametz dated November 26, 2018. [1] The plaintiff also claims interest on this amount and costs. The Evidence [ 4 ] The trial of this matter occurred over several days in Prince Albert, Saskatchewan. On September 4, 2019, the plaintiff called his first witness, Jonathan Bergen. Mr. Bergen is the Chief of Police for the PAPS.

He was the only witness heard on the first day of the trial. Additionally, both parties agreed to the admission of a number of documents produced by counsel for the defendant. These documents were filed and marked as Exhibits D-1 to D-11. [ 5 ] The trial continued on October 9, 2019, at which time the plaintiff called three more witnesses. Karen Fairburn, a former employee for the Prince Albert SPCA, Dennis Nowoselsky, a member of the City of Prince Albert’s municipal council, and the plaintiff’s spouse, Heather Heffernan. Additionally, the plaintiff testified but did not conclude his evidence.

During the testimony of Mr. Nowoselsky, the plaintiff introduced an additional document that was marked as Exhibit P-1. Additionally, a copy of the collective agreement was received in evidence and was marked as Exhibit D-12. [ 6 ] The trial continued on October 30, 2019, at which time the plaintiff concluded his testimony. The defendant did not call any additional witness. Both parties presented their final arguments. [ 7 ] Throughout the trial, the plaintiff maintained that he was innocent of the discipline charges and that the Hearing Officer erred in finding him guilty of the third discipline charge.

It is not an exaggeration to say that he is desperate to find a way to correct what he considers an injustice to himself. As I explained to the plaintiff on numerous occasions during the trial, it is not the role of this Court in this proceeding to adjudicate the correctness of the Hearing Officer’s decision. His efforts towards that goal in the context of this proceeding were an inappropriate collateral attack on the Hearing Officer’s decision. I mention this because the plaintiff’s efforts to ‘exonerate’ himself did have some effect on his credibility and the reliability of his testimony.

I find that in general the plaintiff was a credible witness. In particular, he appears honest and not trying to deceive the court in any way. However, his uncompromising belief that the Hearing Officer erred in finding him guilty of one discipline charge at times affected the way he answered questions. Notably, he was extremely cautious and reluctant to answer questions which could in any way be interpreted as him accepting or acceding to the finding of guilt made by the Hearing Officer.

In my view, this had some negative impact on the reliability of some of his testimony, but it was not serious enough to cause me to reject his evidence. It has however, caused me to carefully consider all his testimony. [ 8 ] The other witnesses were credible and provided reliable testimony. Most of their evidence was factual or commentary and explanation of the various documents. Additionally, much of the relevant circumstances are set out in, or corroborated by, the various documents.

The accuracy and authenticity of the documents in evidence were not challenged and I find that the documents are reliable evidence. [ 9 ] Fortunately, there was little dispute regarding the evidence that is important and relevant to the main issue. The one possible exception to this is whether the plaintiff has actually incurred the expense for which he claims indemnity from the defendant. It is clear from the evidence that Mr. Abrametz sent his invoice directly to counsel for the PAPS rather than to the plaintiff. Additionally, the plaintiff confirmed that he has not yet made any payments on that invoice to Mr.

Abrametz. However, the plaintiff also testified that he considers the amount of this invoice to be a debt that he owes, and that he will be responsible to pay it from his personal resources if he does not receive indemnification from the defendant. Noting that his evidence on this topic was corroborated by the evidence of his spouse, Heather Heffernan, I accept this evidence from the plaintiff. I find that, regardless of whether he has yet paid any money to Mr.

Abrametz, he has incurred the expense of legal fees in order to defend himself against the first two discipline charges in the amount of $10,411.73. However, I also find the plaintiff has not proven that his contractual arrangements with Mr. Abrametz will require him to pay interest at a rate of 2% per month. Facts [ 10 ] In addition to my findings as set out in the previous paragraph, based on the reliable and relevant evidence presented during the trial, and on certain admissions by counsel for the defendant, I find that the plaintiff has proven the following relevant facts and circumstances: (

a) From June 2, 2015 to December 27, 2018 the plaintiff was an employee of the defendant; during that period he was employed as a Special Constable and Bylaw Enforcement officer with the PAPS; (

b) While he was employed with the defendant, the plaintiff was a member of the Association; (

c) During the time of the plaintiff’s employment with the defendant, the defendant and the Association were parties to a comprehensive collective agreement [2] , which was renewed by them on, or about May 28, 2018 [collective agreement]; (

d) As an employee of the defendant and being a member of the Association the plaintiff was required to comply with various duties and responsibilities as set out in the collective agreement and he was entitled to various benefits as set out in the collective agreement; (

e) One of the benefits available to the plaintiff, subject to certain conditions, is the right to be indemnified by the defendant for reasonable expenses and costs associated with defending a charge arising from a wrongful act.

Section 12.10 of the collective agreement sets out the provisions regarding this indemnification benefit; (

f) On or about June 23, 2016, a public complaint against the plaintiff was received by Sgt. Rudderham of the PAPS; [3] (

g) This public complaint was investigated and the investigation resulted in three discipline charges against the plaintiff; (

h) The discipline charges were not otherwise resolved and consequently a formal discipline hearing was required; (

i) After first being charged with the discipline charges, the plaintiff had the assistance of a lawyer (not Mr. Abrametz) for a short period of time; but for most of the time leading up to the discipline hearing the plaintiff did not have the assistance of a lawyer; (

j) Approximately two months prior to the discipline hearing, during a conversation between the plaintiff and legal counsel for PAPS the latter reminded the plaintiff about the indemnity provisions in the collective agreement; (

k) Shortly after this conversation, the plaintiff retained the services of Mr. Abrametz, to assist him in his defence against the discipline charges; (

l) The plaintiff did not formally notify the PAPS, or their legal counsel, that he had hired Mr. Abrametz. However, legal counsel for the PAPS was clearly aware of this fact because by the end of August 2018 he arranged for the disclosure packet to be redistributed to Mr. Abrametz as he was then acting for the plaintiff;

(

m) The discipline hearing proceeded before a Hearing Officer. The presentation of evidence by the PAPS and by the plaintiff, as well as the presentation of their arguments to the Hearing Officer occurred over four days: October 1, 2, 3, and 4, 2018. During the discipline hearing, the plaintiff continued to be represented by Mr. Abrametz. The Hearing Officer reserved his decision and subsequently delivered a comprehensive written decision on November 23, 2018; [4] (

n) The Hearing Officer found the plaintiff to be not guilty of the first two discipline charges, but guilty of the third discipline charge. The Hearing Officer subsequently scheduled a penalty hearing for December 20, 2018; (

o) On or about November 26, 2018, Mr. Abrametz sent a letter to the PAPS’ lawyer requesting payment of his enclosed invoice. Notably, Mr. Abrametz specifically indicated in his letter: “I enclose my bill for services rendered in relation to the not guilty findings; ” [5] (

p) The penalty hearing for the third charge was held before the Hearing Officer on December 20, 2018. The next day, the Hearing Officer delivered a written decision as to the penalty being imposed: that the plaintiff be reprimanded; (

q) On or about December 27, 2018, the defendant terminated the plaintiff’s employment with the PAPS; (

r) On or about January 3, 2019, Mr. Abrametz sent another letter to the PAPS’ lawyer again requesting payment of the invoice dated November 26, 2018. Notably, in this second letter Mr. Abrametz specified: “I sent you a copy of my bill on November 26, 2018. These [sic] were [sic] for the charges for which Mr. Heffernan was found not guilty…”; [6] (

s) On or about January 6, 2019, counsel for the PAPS replied to Mr. Abrametz’s letter of January 3, 2019. He pointed out that the plaintiff had appealed the finding of guilt made by the Hearing Officer on the third discipline charge and that the claim for Indemnification would be revisited after the conclusion of the appeal process; (

t) On June 18, 2019, a member of the Saskatchewan Police Commission dismissed the plaintiff’s application for leave to appeal the finding of guilt. [7] The member of the Saskatchewan Police Commission issued an addendum to this decision on June 25, 2019; [8] (

u) On June 26, 2019, the plaintiff applied to the Saskatchewan Court of Queen’s Bench for judicial review of decision denying the plaintiff leave to appeal the finding of guilt. [ 11 ] Although not proven from the evidence presented at trial, I note that the Saskatchewan Court of Queen’s Bench dismissed the plaintiff’s application for judicial review on March 10, 2020. [9] [ 12 ] Additionally, during the trial it was confirmed by the parties that there was no appeal of the Hearing Officer’s decision to find the plaintiff not guilty on the first two discipline charges.

The Collective Agreement [ 13 ] A true copy of the collective agreement between the defendant and the Association, of which the plaintiff was a member, was received in evidence and is marked as Exhibit D-12. I take note of the

preamble, which reads as follows: WHEREAS it is the desire of both parties to this Agreement to maintain the existing harmonious relations between the Board and the Members of the Association, to promote cooperation and understanding between the Board and its employees, to recognize the mutual

value of joint discipline and working conditions and elimination of waste and to promote the morale, well-being and security of all the employees in the bargaining unit represented by the Association. [ 14 ] The key portions of the collective agreement, for the purposes of this decision, are found in

section “12.10 Indemnification”; which I note is found in “Article VII – Employee Benefits”. Paragraph 12.10

a) is most relevant and it reads as follows:

a) Criminal charges, human rights, coroner’s inquests, public inquiries and The Police Act

i) A member who is the subject of a proceeding as a result of an alleged wrongful act, arising from

an act committed while acting in the scope of employment with the Board as a member, shall be indemnified for all necessary and reasonable expenses and costs associated with defending a charge or resolving a proceeding. ii) For the purpose of paragraph (a)(i), “alleged wrongful act” is conduct of a member for which the following action is taken against a member or in which a member is implicated:

a) Criminal charges.

b) Saskatchewan human rights code complaints.

c) Coroner’s inquests involving the member.

d) Charges under The Police Act, 1990 other than minor offences against discipline contained in Regulation 37 of the Discipline Code, provided that the member is found not guilty, or where the matter is dropped, stayed or dismissed.

e) Public inquiries. iii) The member shall be entitled to select legal counsel of his or her choice to act throughout any proceedings referred to in (

i) provided that in no event shall the Board be responsible for legal fees in excess of $250.00 per hour. iv) The Board may object to the member’s selection of legal counsel on the ground of actual or perceived conflict of interest of counsel with the Board’s interests. In such event, the issue may be referred by the Board, together with argument of the parties, within ten (10) days of the Board receiving written notification of the member’s selection of counsel, to a justice of the court of queen’s bench for

summary judicial determination of the issue of whether the member’s choice of legal counsel raises an actual or potential conflict of interest.

v) The Board shall have the right to tax any and all accounts for fees and disbursements rendered pursuant to its obligation under this provision.

The member shall obtain from his or her legal counsel a waiver of the thirty (30) day time limit for the taxation of accounts for fees and disbursements which is provided for in The Legal Profession Act of Saskatchewan . vi) The indemnification to the member of reasonable expenses and costs associated with defending a charge or resolving a proceeding shall occur at the conclusion of any proceeding, including any appeals, provided that the member shall have no claim for indemnification where the conduct of a member in the occurrence which resulted in a proceeding constituted a willful or wanton disregard or dereliction of duty. vii) Upon retaining legal counsel, the member must provide his or her legal counsel with a copy of this article. viii) The member must advise the Board once a lawyer has been retained for which Indemnification of fees may be sought and the member must advise the Board of the general nature of the proceedings involved which require legal counsel. [underlining in original]

Position and Arguments of the Plaintiff [ 15 ] The plaintiff claims he is entitled for indemnification for the legal fees and disbursements incurred in relation to the two discipline charges for which he was found not guilty by the Hearing Officer. He asserts that his entitlement to such indemnification arises directly from the relevant provisions of the collective agreement.

Moreover, in his arguments at trial the plaintiff asserts that the two discipline charges for which he was found not guilty were the “serious” charges and that the third discipline charge, for which he was found guilty was by far the least serious of the three charges. [ 16 ] During the trial proceedings the plaintiff also tried to establish some liability on the part of the defendant by advancing the argument that, at a time when he was not represented by counsel, comments were made to him by the lawyer for the PAPS, which comments amounted to legal advice.

This occurred in the context of pre-discipline hearing discussions between the plaintiff and counsel for PAPS. [ 17 ] When the discipline charges were first brought against the plaintiff, he engaged the services of his own lawyer for a short period of time. Thereafter he dealt directly with counsel for PAPS for many months. There is no question in my mind that the plaintiff knew he was dealing with the lawyer who was prosecuting the discipline charges; and as such was not acting for him but rather was acting opposite to him and his interests.

I also observe that the plaintiff had worked for the defendant as a peace officer and as such he would have (or should have) a better understanding than an average person that you can and ought to only rely on advice from your own lawyer. [ 18 ] I also note that the plaintiff did not plead in his claim that the defendant may have some liability arising from one or more conversations that he may have had with legal counsel for PAPS, nor was there any application to amend his claim. Even if it had been pled, the evidence does not support this argument.

What the evidence did show was that at some point counsel for PAPS reminded the plaintiff about the indemnification provisions in the collective agreement. That is all. Consequently, this argument is without merit. [ 19 ] The plaintiff also argued his claim should succeed because the discipline charge for which he was found guilty was wrongly decided. This argument too was not raised in the plaintiff’s formal claim and as such, I decline to consider it on that basis.

However, even if it had been raised in the formal claim I would dismiss it as being without merit because it is an impermissible collateral attack on the decision of the Hearing Officer. Position and Arguments of the Defendant [ 20 ] The defendant argues that the plaintiff is not entitled to any indemnification because he was found guilty of the third discipline charge. Therefore, the situation is not one for which the plaintiff is entitled to indemnification of expenses and costs because of the wording of clause 12.10(a)(ii)(d).

This is the clause that includes indemnification for defending “charges under The Police Act, 1990 … provided that the member is found not guilty, or where the matter is dropped, stayed or dismissed .” [emphasis added] [ 21 ] The defendant acknowledges the plaintiff was found not guilty of two of the three discipline charges, but maintains that since all three charges were brought on the basis of the same set of circumstances the plaintiff was not completely exonerated and thus his situation does not fall within the parameters of clause 12.10(a)(ii)(d).

Additionally, the defendant argues that the indemnification provisions do not contemplate or authorize “partial indemnification” based on “partial success” of a member’s defense as against multiple discipline charges. [ 22 ] The defendant also argues that no indemnification is permitted if the conduct of the plaintiff “constituted a willful or wanton

disregard or dereliction of duty”, as set out in clause 12.10(a)(vi) of the collective agreement. The defendant argues that the offendingconduct for which the plaintiff was found guilty would, in addition to being discreditable conduct, pursuant to The Municipal PoliceDiscipline Regulations, 1991, RRS c P-15-01 Reg 4 also constitutes a willful or wanton disregard or dereliction of duty.

Furthermore,since this conduct occurs in relation to the overall circumstances giving rise to the discipline charges, the plaintiff should not be entitledto the benefit of indemnification for defending any of the three discipline charges, in whole or in part. [23] The defendant further argues the plaintiff’s claim is premature because all avenues of appeal have not yet been exhausted.This argument flows from the wording of the first part of clause 12.10(a)(vi): The indemnification to the member of reasonable expenses and costs associated with defending a charge or resolving a proceeding shalloccur at the conclusion of any proceeding, including any appeals, … [emphasis added] This, together with the fact that the plaintiff is contesting the finding of guilt on the third discipline charge, means, according to thedefendant, that the plaintiff’s claim for indemnification is premature and cannot succeed until all efforts to appeal the finding of guilt areconcluded. [24] Lastly, the defendant argues the plaintiff is not entitled to indemnification for legal expenses because he has not yet paid forany such expenses.

I dismiss this argument in light of my finding of fact that the plaintiff has indeed incurred legal expenses. Whether ornot he has yet paid the bill, is immaterial to the fact that he incurred the expense and owes it to Mr. Abrametz. Analysis [25] The most important question to answer is whether the terms of the collective agreement permit the plaintiff receiveindemnification in a situation, such as this one, where he is only partially successful in defending himself against all of the disciplinecharges. [26] To answer this question I must analyze and interpret the collective agreement.

In doing so I am guided by the “modernprinciple of

interpretation” of collective agreements. This principle was set out in detail by Arbitrator David Elliott in his decision,C.E.P., Local 777 v Imperial Oil Strathcona Refinery, (AB GAA), 130 LAC (4th) 239 (Alta). At paragraphs 40 to 42of this decision, Arbitrator Elliot stated: 40 The modern Canadian approach to interpreting agreements (including collective agreements) and legislation, isencompassed by the modern principle of

interpretation which, for collective agreements, is: In the

interpretation of collective agreements, their words must be read in their entire context, in their grammatical and ordinary sense,harmoniously with the scheme of the agreement, its object, and the intention of the parties. 41 Using this principle, interpreters look not only to the intention of the parties, when intention is fathomable, but also to the entirecontext of the collective agreement. This avoids creating a fictional intention of the parties where none existed, but recognizes theirintention if an intention can be shown.

The principle also looks into the entire context of the agreement to determine the meaning to begiven to words in dispute. 42 Before applying the modern principle of

interpretation to this grievance I will identify the components of the modern principleand what they encompass. The modern principle of

interpretation is a method of

interpretation rather than a rule, but still encompassesthe many well-recognized

interpretation conventions. The modern principle directs interpreters: 1 to consider the entire context of the collective agreement 2 to read the words of a collective agreement • in their entire context

• in their grammatical and ordinary meaning 3 to read the words of a collective agreement harmoniously • with the scheme of the agreement • with the object of the agreement, and • with the intention of the parties. Arbitrator Elliot then goes on to provide a detailed explanation of the components listed in paragraph 42 of his decision. [ 27 ] This modern principle of

interpretation of collective agreements has been widely followed by arbitrators in Saskatchewan and has also been approved of by the Saskatchewan Court of Queen’s Bench. [10] [ 28 ] I also look to relevant jurisprudence for guidance. Neither the plaintiff nor the defendant provided any relevant jurisprudence for consideration, and court was also unable to locate any that was sufficiently similar to be useful. There are some cases that deal with issues related to the separation of benefits or obligations on the basis of partial or divided results of multiple charges against employees; however, none of them are factually similar to this case. [11] Moreover, virtually all of them involve the

interpretation of provisions of different collective agreements, the terms of which are not the same as the relevant clauses of the collective agreement in this case. [ 29 ] I also have considered the general purpose of indemnification clauses such as those in the collective agreement. They are, in my view, a general acknowledgment that by virtue of their employment employees may become implicated in, or accused of, wrongful acts that may result in a variety of proceedings or types of charges against the employee.

In dealing with such matters, employees can expect to incur expenses, notably legal expenses to protect their own interests or defend themselves against charges. Indemnification clauses thus serve to provide some protection to employees who can expect to be indemnified by the employer for such expenses in certain situations as governed by the terms of the collective agreement. [ 30 ] In this case clause 12.10(a)(

i) of the collective agreement sets out the general premise that employees, such as the plaintiff, will be indemnified for expenses related to defending themselves against alleged wrongful acts. Clause 12.10(a)(ii) defines what is meant by “alleged wrongful act”. Clause 12.10(a)(ii)(

d) specifies that “alleged wrongful act” can include charges such as the three discipline charges against the plaintiff. This clause is set out above but for ease of reference, I repeat it here:

d) Charges under The Police Act, 1990 other than minor offences against discipline contained in Regulation 37 of the Discipline Code, provided that the member is found not guilty, or where the matter is dropped, stayed or dismissed. [ 31 ] The three discipline charges against the plaintiff were clearly not “minor offences against discipline” thus, the middle portion of this clause has no application in the case.

The crux of the issue is whether there needed to be a finding of not guilty to all three of the discipline charges against the plaintiff in order for his acts or conduct to be included in the definition of “alleged wrongful act” for which indemnification would be available. Clearly, if there had been findings of not guilty to all three discipline charges the plaintiff would be entitled to indemnification.

Similarly, if he had been found guilty of all three discipline charges he would not be entitled to indemnification. [ 32 ] Unfortunately, the indemnification provisions in the collective agreement do not specifically address situations where an employee’s act or conduct results in multiple proceedings or multiple charges under The Police Act , which could conclude with mixed results. The issue is further complicated by some inconsistent use of terminology such as the use of the word “matter” in clause 12.10(a) (ii)(d).

It is not clear whether “matter” is simply a synonym for “charge” or not, although it is difficult to envision what else it might be because it appears in the clause that specifically refers to “charges under The Police Act, 1990 ”. The

interpretation of the relevant clauses

is also complicated by inconsistent use of the singular or plural nouns. [ 33 ] I have observed that the indemnification clauses in this collective agreement appear in “ARTICLE XII – EMPLOYEE BENEFITS”, along with many other benefits that are available to members of the Association. This is important because it identifies these provisions as benefits. Thus, the logical starting point is to consider that indemnification is intended to be a benefit to the members of the Association.

Of course, there can be limitations to any benefit, including the right to indemnification, however, those limitations should be clearly, and precisely set out. If there is ambiguity regarding a potential “limitation” of a benefit, it stands to reason that the ambiguity should be resolved in favor of the general intention to provide the employee with a benefit, rather than restricting the benefit. In my view, this would also be consistent with the expressed desire of both parties, as stated in the

preamble of the collective agreement, “…to promote the morale, well-being and security of all the employees in the bargaining unit represented by the Association.” [ 34 ] In my view the indemnity provisions, read as a whole and in the context of the entire collective agreement, can and ought to be interpreted and applied separately to each charge (or charges) under The Police Act , that result from each separate wrongful act committed, or alleged to have been committed, by the plaintiff, or other employee. Clause 12.10(a)(

i) clearly contemplates potential indemnification for defending a charge or resolving a proceeding that are the result of “ an alleged wrongful act, arising from an act committed…”. That more than one charge could result from a single act is not expressly stated but I find that it was contemplated by the parties because of the use of the plural “charges” in clause 12.10(a)(ii)(d).

This is also entirely logical, and appropriate. [ 35 ] What is not contemplated by the indemnity provisions of the collective agreement is that an employee would be entitled or disentitled to the benefit of indemnification based on the outcome of a charge or charges that were brought against the employee as a result of a different or separate wrongful act (or alleged wrongful act), by the employee. Whether the charges are each dealt with in separate trials or hearings or together in one trial or hearing is less important.

This is because there can be situations where it is advantageous to all parties to deal with multiple charges from completely different situations together in one hearing, or situations where more than one hearing might be necessary to deal with multiple charges arising from the same alleged wrongful act. [ 36 ] I would clarify the foregoing by indicating that an alleged wrongful act is not the equivalent of a single physical act or action.

For example, the wrongful act of dangerous driving necessarily includes various specific physical actions and decisions, and one incident of dangerous driving could include a variety of elements such as speed, running stop signs, cutting off other drivers, etc. These things are intrinsically part of the dangerous driving.

However, and continuing with this analogy, if the dangerous driving included damage being caused to a police vehicle, and the police officer driving the vehicle reported to his or her supervisor that the damage had been caused by a hit and run while the police vehicle was parked, this false report would be a separate and distinct wrongful act.

The false report may be contextually and temporally linked to the dangerous driving but it is not intrinsically part of the dangerous driving and nor is the dangerous driving part of the wrongful act of making a false report. [ 37 ] To properly apply this reasoning, and thus to properly apply the terms of the collective agreement to the plaintiff’s claim, I do not need to look much further than the three discipline charges that were presented against the plaintiff.

The discipline charges were all specifically set out in the Hearing Officer’s decision. [12] The first discipline charge, reads as follows: Major disciplinable offence of Corrupt Practice, contrary to ss. 36(e)(iv) of The Municipal Police Discipline Regulations : TO WIT: On or about the 2 nd day of June, 2016 you did in the course of your duties as a bylaw enforcement officer, of the Prince Albert Police Service, without lawful excuse, improperly use your position as a bylaw enforcement officer of the Prince Albert Police Service to take to your own use property not belonging to you, namely a seized animal from the SPCA in Prince Albert, SK, without paying fees.

The second discipline charge reads as follows: Major disciplinable offence of Discreditable Conduct, contrary to ss. 36(a)(

v) of The Municipal Police Discipline Regulations : TO WIT: On or about the 2 nd day of June, 2016 you did in the course of your duties as a bylaw enforcement officer, of the Prince Albert Police Service willfully conduct yourself with members of the public, i.e.) personnel of the SPCA in Prince Albert, SK, in a deceitful manner and in doing so did take to your own use property not belonging to you, namely a seized animal from the SPCA in Prince Albert, SK, without paying fees. The third discipline charge reads as follows:

Major disciplinable offence of Discreditable Conduct, contrary to ss. 36(a)(ii) of The Municipal Police Discipline Regulations : TO WIT: On or about the 2 nd day of June, 2016 you did in the course of your duties as a bylaw enforcement officer, of the Prince Albert Police Service, willfully make a false, misleading and/or inaccurate oral and/or written entry in an official document or record when you cleared a call that was the subject of a dispatch at or about 14:27 hours on the 2 nd day of June, 2016, stating that paperwork was completed when no such paperwork was filled out, completed and/or does not exist. [ 38 ] It is obvious from the discipline charges themselves that the third discipline charge pertains to a different alleged wrongful act than the alleged conduct or alleged wrongful act or acts targeted by the first two discipline charges.

The subject matter (or alleged underlying physical acts of the plaintiff) of the first two discipline charges is his dealings with personnel from the SPCA and the particulars of how he took personal possession of a seized animal. These two discipline charges are very closely related and it could reasonably be argued that they both arise from the same set of physical acts or from same alleged wrongful act. [ 39 ] The third discipline charge is however, very different and distinct from the first two. More importantly, the factual underpinnings of this third discipline charge are completely different.

It does not pertain to the plaintiff’s dealings with personnel from the SPCA nor does it pertain to what happened with the seized animal. Rather, it pertains directly to the plaintiff’s requirement to properly complete records that are internal PAPS documents. While there is a temporal and contextual connection to the subject matter of the first two discipline charges, the subject matter of the third discipline charge is not intrinsically part of the same wrongful act or acts alleged in the first two discipline charges.

As indicated above this appears obvious from a simple review of the three discipline charges, however, it is just as clear from the Hearing Officer’s decision as a whole, and from other evidence presented during the trial. [ 40 ] I find that the alleged wrongful acts which resulted in the first two discipline charges against the plaintiff are different and distinct from the alleged wrongful act that resulted in the third discipline charge. The plaintiff was found not guilty of the first and second discipline charges. As such, I find that pursuant to clauses 12.10(a)(

i) and 12.10(a)(ii)(d), the plaintiff is entitled to the benefit of indemnification for reasonable costs, including legal costs, for defending himself against the first two discipline charges. [ 41 ] Given that the plaintiff was found guilty of the third discipline charge, he would not be entitled to indemnification for costs related to that charge. That could change if at some point in the future he is successful at appealing or otherwise overturning that finding of guilt.

This point is however not material to this decision because the plaintiff’s claim, exclusive of interest and costs, is for indemnification for legal fees related to his defence as against the first two discipline charges only. [ 42 ] Since I have found that the plaintiff can rely on the indemnification provisions in the collective agreement in respect of the first two disciple charges separately from the third discipline charge, the defendant’s argument that all appeals must be concluded first, must fail. This is because there were no appeals taken with respect to the first two discipline charges.

The issue of appeal finality with respect to the third discipline charge will only be relevant to the issue of indemnification of expenses incurred to defend against that discipline charge. [ 43 ] I also find that the defendant’s argument, that the plaintiff is not entitled to any indemnification for defending against any of the discipline charges because the conduct underlying the third discipline charge constitutes wanton or willful dereliction of duty, also fails.

This is for two reasons. [ 44 ] Firstly, the alleged conduct in question is the precise alleged conduct that caused a charge and related proceeding to occur on the third discipline charge only. As indicated above, in this situation, that alleged conduct is significantly separate and distinguishable from the alleged conduct underlying the first two discipline charges. The provision preventing indemnification for defending against incidents that include wanton or willful disregard of duty should, in this case, apply only to the third discipline charge.

Moreover, it would apply only to that charge if the underlying conduct did indeed amount to wanton or willful dereliction of duty. [ 45 ] Secondly, I find that the evidence presented during the trial is insufficient for me to conclude that the plaintiff’s conduct underlying the third discipline charge, and his conviction for it, amounts to wanton or willful misconduct.

I note that “willful or wanton” misconduct by police officers has been defined as a “very marked departure from the standards by which reasonably competent Police Officers habitually govern themselves in the performance of their duties as Police Officers”. [13]

[ 46 ] In general, the plaintiff’s evidence on this issue was that he had done nothing wrong and that the Hearing Officer erred in finding him guilty of the third discipline charge. As averred to earlier I refuse to consider his testimony as to the correctness of the Hearing Officer’s decision because it amounts to an impermissible collateral attack on the decision of the Hearing Officer.

However, since the defendant relies on the ‘willful or wanton disregard or dereliction of duty” proviso in the collective agreement, I find that I can consider the plaintiff’s evidence regarding his view of whether his conduct amounted to a willful or wanton disregard or dereliction of duty. I note that the plaintiff was not cross-examined to any significant degree on this specific issue. [ 47 ] The only other direct evidence on this issue was in the testimony elicited from Jonathan Bergen by counsel for the defendant. Mr.

Bergen agreed with the suggestion that the plaintiff’s conduct underlying the finding of guilt for the third discipline charge would also amount to willful or wanton disregard or dereliction of duty. However, very quickly after providing this answer Mr. Bergen also opined that the Hearing officer had come to the same conclusion. This answer was clearly not correct because there is no mention of such a finding in the Hearing Officer’s decision. I find it is likely that Mr.

Bergen made this mistake because the discipline charge itself includes the word “willfully” and because the Hearing Officer found the plaintiff guilty of this discipline charge, he must have found that the plaintiff’s conduct was willful. Additionally, no further evidence was provided regarding how other reasonably competent Police Officers habitually govern themselves, in order to demonstrate that there was a “very marked departure” from such standards by the plaintiff. Consequently, I give very little weight to Mr.

Bergen’s opinion that the plaintiff’s conduct was a willful or wanton disregard or dereliction of duty. [ 48 ] The only other evidence available to me is the content of the Hearing Officer’s decision. I have reviewed the Hearing Officer’s decision, including the final findings with respect to the discipline charges. As noted above, there are no specific comments or findings in the decision as to whether the plaintiff’s conduct amounted to a willful or wanton disregard or dereliction of duty; although this was most likely because this was not a specific issue being adjudicated by the Hearing Officer.

The Hearing Officer’s factual findings with respect to the third discipline charge were: I find that by 14:27:25 Special Constable Heffernan had made arrangements to return at the end of his shift and pick up the puppy and had formed the intention of adopting the puppy.

I find that Special Constable Heffernan’s entry in the dispatch ticket, which is an official document or record, was misleading and inaccurate as it did not refer to the paper work (the Intake Form) having been discarded, nor did it refer to the fact he had arranged to adopt the puppy.” [14] Additionally, I note that the Hearing Officer wrote the following in his Penalty Decision: There are no prior discipline decisions that include identical, or even substantially similar, circumstances.

I believe the conduct in other cases, including that of Constable Kauk was more deliberate and constituted planned misconduct and I believe the misconduct at issue before me is, although a major disciplinary offence, on the lower end of the spectrum. [15] [emphasis added] This comment appears to be inconsistent with the argument that the conduct in question was also a willful or wanton disregard or dereliction of duty. [ 49 ] The Hearing Officer’s factual findings with respect to the third discipline charge are certainly in conflict with the plaintiff’s evidence during the trial that he did nothing wrong, however, I find that I do not need to resolve this conflict.

Even if I were to disregard all the plaintiff’s evidence as to this issue, the remaining evidence, if wholly accepted, is insufficient to establish that the plaintiff’s conduct, as to the third discipline charge, or otherwise, constituted a willful or wanton disregard or dereliction of duty. The defendant’s argument in this regard is premised upon the Court being able to find that the plaintiff’s conduct constituted a willful or wanton disregard or dereliction of duty.

In the absence of sufficient evidence to make this finding, the defendant’s argument fails. [ 50 ] For all these reasons I find that the defendant is contractually obligated to indemnify the plaintiff for his reasonable expenses and costs, including legal fees, incurred by him in order to defend himself against the first two discipline charges.

Quantum, Interest and Costs [ 51 ] The plaintiff’s primary amount claimed is based upon Mr. Abrametz’s invoice in the amount of $10,411.73. In my view, this is a reasonable amount for Mr. Abrametz to invoice and it is likewise a reasonable amount for which the plaintiff is entitled to indemnification from the defendant. I come to this conclusion after considering several factors. Firstly, it is clear that the hearing before the Hearing Officer was not a simple or straightforward matter.

As noted in the Hearing Officer’s decision, the hearing was conducted over a period of four days during which time testimony was given by 14 witnesses. The Hearing Officer’s decision itself contains 226 paragraphs. [ 52 ] Secondly, while it is obvious that some of the evidence presented at the hearing would have pertained to the third discipline charge, it is equally clear from the Hearing Officer’s decision, including his review of the evidence presented at the hearing, that most of the evidence presented at the hearing pertained solely or primarily, to the first two discipline charges.

Thus, it makes sense that the vast majority of the time spent at the hearing and the vast majority of Mr. Abrametz’s preparation time would have pertained to the first two discipline charges. Thirdly, I note that Mr. Abrametz’s invoice includes a total of 15.5 hours for attending at the hearing over the four days it was held. This is not an unreasonable amount of time. Fourthly, the total amount of time invoiced for Mr. Abrametz’s services 37.41 hours, which means only 21.91 hours are recorded for all other aspects of Mr. Abrametz’s work for the plaintiff relating to the first two discipline charges.

This too is not an unreasonable number of hours for all the work that would have been required. Additionally, the amount invoiced for disbursements is nominal. [ 53 ] Lastly, I have already mentioned in my findings of fact that both of Mr. Abrametz’s letters to the PAPS legal counsel requesting payment of his invoice specifically mention that the invoice is for legal services provided to the plaintiff in relation to the two discipline charges for which the plaintiff was found not guilty. This tells me that Mr.

Abrametz specifically set his mind to the issue of allocating his time between the first two discipline charges and the third one. It was a reasonable and appropriate act on his part. I also note that the defendant did not dispute this evidence or contend that the invoice, pertaining as it does to the first two discipline charges only, was unreasonable. [ 54 ] Consequently, I find the plaintiff has proven his primary claim as against the defendant in the amount of $10,411.73. [ 55 ] I dismiss the plaintiff’s claim for interest at the rate of 24% per annum from November 26, 2018.

No evidence was presented at the hearing that the plaintiff is or will be required to pay interest at this rate, or at any rate. It follows that he has not proven any right to indemnification from the defendant for interest. [ 56 ] The plaintiff has not claimed interest pursuant to The Pre-Judgment Interest Act , SS 1984-85-86, c P-22.2 ; consequently, there will be no award for interest. [ 57 ] With respect to costs, no evidence was presented regarding specific costs or expenses. The court can however take notice of the $100.00 fee paid by the plaintiff to file his claim.

This expense will be included in the final judgement. [ 58 ] Pursuant to section 36(3) of the The Small Claims Act, 2016 , SS 2016, c S-50.12 and section 6(3) of The Small Claims Regulations, 2017 , c S-50.12 Reg 1, I can award final costs in an amount that does not exceed 10% of the primary award. I note that the trial for this matter was lengthy and required almost three full days for the evidence and arguments to be presented. The matter is complex but was made more complex than it needed to be by the plaintiff’s inappropriate efforts to try to re-litigate the Hearing Officer’s decision.

Additionally, given the ambiguity in the terms of the collective agreement respecting the defendant’s responsibility to provide indemnification in situations where there are multiple charges with differing outcomes, it was not completely unreasonable for the defendant to dispute the plaintiff’s claim. In the circumstances, I find that it is appropriate to award final costs to the plaintiff in the amount of $500.00 which is slightly less than 5% of the primary amount awarded.

Summary and Judgment

[ 59 ] The plaintiff’s primary claim in the amount of $10,411.73 is granted. The plaintiff’s claim for interest is denied. The Court awards costs to the plaintiff in the amount of $100.00 for the fee paid by the plaintiff to file his claim, and the Court further awards final costs to the plaintiff in the amount of $500.00, for a total costs award of $600.00. [ 60 ] Upon the filing of this decision, the Clerk of the Court is directed to issue a Judgement in favor of the plaintiff for $10,411.73, plus costs in the total amount of $600.00. ________________________ L.W. Stang, J