) ) TORONTO POLICE ASSOCIATION Applicant – v. –, 2013 ONSC 4511

CITATION : Toronto Police Association v. Toronto Police Services Board, 2013 ONSC 4511 DIVISIONAL COURT FILE NO.: 91/12 DATE: 20130702 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, HAMBLY and HERMAN JJ. BETWEEN: ) ) TORONTO POLICE ASSOCIATION Applicant – and – TORONTO POLICE SERVICES BOARD and PAULA KNOPF Respondents ) ) ) ) ) ) ) ) ) ) Ian Roland and Michael Fenrick , for the Applicant Michael Hines , for the Respondent Toronto Police Services Board ) ) ) HEARD: April 15, 2013 at Toronto MOLLOY J. REASONS FOR DECISION A.

INTRODUCTION [ 1 ] In July 2007, Toronto’s Chief of Police implemented a rule requiring uniform officers who are under suspension to report in person twice daily at police headquarters. The Toronto Police Association (“the Association”) is the collective bargaining unit for non- commissioned officers of the Toronto Police Service and is a party to the collective agreement with the Toronto Police Services Board (“the Board”). The Association objected to the reporting rule as being unreasonable and punitive.

The Board took the position that this was outside its responsibility and fell solely within the jurisdiction of the Chief. Ultimately the Association filed a policy grievance and Paula Knopf was appointed as Arbitrator.

The parties agreed that Arbitrator Knopf should first decide whether she had any jurisdiction to hear the matter. [ 2 ] The preliminary issue before the Arbitrator was whether this was a matter involving working conditions of police officers and therefore within the collective agreement or whether it was a matter involving day to day police operations and therefore solely within the powers of the Chief of Police. After hearing evidence and argument solely on the jurisdictional issue, the Arbitrator held that the twice-daily reporting requirement is within the power of the Chief of Police, and not the Board.

She therefore dismissed the grievance as being outside the scope of arbitral review. [ 3 ] The Association now applies to the Divisional Court for judicial review of the Arbitrator’s decision. [ 4 ] For the reasons that follow I find that the Arbitrator’s conclusion cannot be sustained as reasonable. The twice-daily reporting requirement is a working condition that falls within the collective agreement and is appropriately within the powers of the Board, in its capacity as supervisor of the Chief.

In coming to the opposite conclusion, the Arbitrator unreasonably fettered her own jurisdiction by failing to properly apply case precedent, by placing an unreasonable

interpretation on the governing legislation, and by interpreting the role of the Board as employer in an unduly and unreasonably restrictive manner.

B. FACTUAL BACKGROUND [ 5 ] A police officer may be suspended with pay pending criminal charges or discipline charges relating to misconduct. While under suspension, officers are required to surrender all police identification, uniforms, weapons and equipment and are not permitted to perform any of the duties of a police officer. However, they are still employees and receive their full pay.

As is the case with all police officers, suspended officers are required to conduct themselves in a manner that would not bring the police service into disrepute and are subject to discipline if that responsibility is breached. Suspended officers may also be required to testify in criminal matters that arose prior to their suspensions. On rare occasions, a suspended officer may be required to report for duty in an emergency situation.

However, it was conceded by the Board that this would not likely occur in a police service as large as the Toronto Police Service. [ 6 ] Beginning in at least 1983, suspended Toronto police officers have been required to report daily to their Unit Commander, either by phone or in person. In 1983, this requirement was imposed by the Board.

At various points over the years, the Board Rule (Rule 4.8.0.) was varied slightly, but continued to be referenced under the Policy and Procedure Manual and various Directives issued by the Chief. [ 7 ] In 1990 there were legislative amendments that changed the responsibilities of the Board and the Chief. Under the new Police Services Act [1] (which remains in force), the Board cannot issue operational orders to a Chief or a police officer.

Notwithstanding this change, the Board continued to issue its Rule 4.8.0 each year. [ 8 ] In March 1993, the Chief issued the Policy and Procedure Manual by Routine Order that included the Board’s Rule 4.8.0, and also the Chief’s Directive 13-05, which referred to Rule 4.8.0. [ 9 ] In 2002, the Board conducted a review of all of its rules. Starting in 2003, the Chief’s Procedure Manual no longer contained a reference to the Board’s Rule 4.8.0, but did set out the text of that rule.

This continued for a number of years. [ 10 ] In June-July 2007, the Chief decided that suspended officers would be required to report twice daily instead of just once.

The Board was not involved in the decision-making process and was not advised of the change until August 2007, when the new requirement imposed by the Chief was already in effect. [ 11 ] The Association complained to the Board about this new rule, but the Board took the position that the matter was not arbitrable. [ 12 ] In December 2007, the Board repealed the By-Law that had contained Rule 4.8.0, and thereafter did not enact any rules or policies relating to reporting requirements for suspended officers. [ 13 ] In 2009, the Chief revised the Procedure he had issued relating to suspended officers to require that the twice-daily report take place at police headquarters in Toronto, rather than before the suspended officer’s unit commander. [ 14 ] In November 2010, the Board issued a policy regarding “Conduct of Service Members” which included the following: 1.

The Chief of Police will establish procedures to ensure the professional conduct of Service members at all times. . . . 2. The Chief of Police will establish procedures to ensure that members will not act in a disorderly manner or in any manner likely to bring discredit on the reputation of the Toronto Police Service; and 3.

The Chief of Police will ensure that there is a process in place to discipline members who violate the foregoing procedures and ensure that these discipline procedures are consistently and appropriately applied to all Service members. [ 15 ] Staff Sergeant Stubbings testified before the arbitrator that the reporting requirement for suspended police officers is meant: to provide accountability; to ensure that discipline and good conduct are maintained; and to monitor whether officers under suspension are not suffering from addictions, substance abuse and/or personal circumstances that could affect their well-being.

The twice-daily requirement is supposed to facilitate better evaluation and monitoring of physical and emotional health than was possible with once-daily reporting and to assist in ensuring that any bail conditions are being met. [ 16 ] In practice, suspended police officers report twice daily to whomever is the Duty Officer at Headquarters at the time, and simply sign-in, with little personal interaction and minimal opportunity for monitoring or evaluating their condition. C.

THE DECISION UNDER REVIEW [ 17 ] At the beginning of her decision dated January 16, 2012, [2] the Arbitrator noted that the Board intended to defend the propriety of the twice-daily reporting requirement, but had raised a “jurisdictional objection, asserting that the matter is not arbitrable.” [3] At the request of the parties, she agreed to deal with this latter issue first, and so did not address the merits of the grievance itself in her decision. [ 18 ] The Arbitrator began her analysis by answering a series of questions posed by the parties as being relevant to the issue of arbitrability.

She considered first the questions posed by the Association, as follows: Q1. Does the dispute concern the public duties of a Police Officer or does the dispute concern public safety, public policy or emergency situations? To this question the Arbitrator answered that suspended officers have no public duties except for the “remote possibility” of being called in on an emergency basis.

However, she also noted that there are some “public” aspects to the suspended officer’s responsibilities, including that they remain subject to discipline if they fail to comply with orders or if their conduct brings disrepute to the Police Service. As to whether there is a “public” purpose of overseeing the welfare of suspended officers, the Arbitrator found this was too theoretical to be answered in the abstract. [4]

Q2. Does the dispute concern a policy or procedure relating to working conditions or labour relations? The Arbitrator held that there is virtually no aspect of a police officer’s duties that do not relate to working conditions and that the fact that working conditions are affected does not dictate that a matter is arbitrable. However, she did note that the general reporting requirement (in

Article 5.01(

b) of the collective agreement) is a reflection of the parties’ shared view that reporting requirements fall within the sphere of labour relations and the collective agreement. [5] Q3. Does the resolution of the dispute require the

interpretation or application of the Collective Agreement or any employment related legislation? The Arbitrator found no specific provision of the collective agreement applied. She distinguished the Waterloo Police Services Board decision [6] on the basis that she was dealing with an order issued by the Chief as a matter of his exclusive authority to do so, rather than at the behest of the Board.

The Arbitrator held that there is an implied duty for the Board to act reasonably in the administration of the collective agreement, but queried whether this related to “operational” and “supervisory” orders of the Chief. [7] Q4. Is the dispute within the realm of expertise of a labour arbitrator? This question was answered in the affirmative.

The Arbitrator referred in particular to an unreported decision of Arbitrator Trachuk holding a similar twice-daily reporting requirement imposed by the Ontario Provincial Police to be in violation of the collective agreement. [8] However, she also noted that arbitrability was not raised in that case and that a slightly different statutory scheme was involved. [9] Q5. How should one characterize the activity that is in dispute; is it a policing or a labour relations matter? The Arbitrator stated that this question had been “addressed above” but did not specify where.

It is not clear to me where it was answered, if at all. [10] [ 19 ] Next, the Arbitrator considered the questions posed by the Board, as follows: Q6. Has the Order or Policy properly emanated from the Chief or the Board?

The Arbitrator started by confirming that substance rather than form should govern; it is not a question of whether the Order was made by the Chief or the Board, but rather whether it arose from the “exercise of proper Board or the Chief’s authority.” She then held that since the Chief’s powers included giving orders to officers, day-to-day operations and maintaining discipline, it could not be concluded that the twice-daily reporting requirement “is, or could be, a matter of Board policy or direction.” She held that neither the facts nor the legislative scheme supported such a finding and that the powers “invoked” to issue the order “arise from the Chief’s exclusive authority.” [11] Q7.

Does the Order involve the day-to-day operations of the Service? The Arbitrator held that the Order in issue does not involve the “typical” day-to-day operations of police officers, but does involve the daily lives of suspended officers and affects the role and responsibility of the Duty Officers who receive the twice-daily sign-ins. [12] Q.8 What would be the adjudicative forum to deal with the matter in the event of non-compliance? The Arbitrator held, and it is not in dispute, that breach of the twice-daily reporting requirement would be dealt with by discipline proceedings under

Part V of the Act and would not be subject to arbitration under the collective agreement. [13] Q.9 Does the matter arise expressly or inferentially from the legally enforceable provisions of the Collective Agreement? This question was already answered. [ 20 ] Having answered these questions from the parties, the Arbitrator concluded that the form of the question can affect its result and that the process of answering the questions still left the essential jurisdictional question unanswered.

She held that there was “one fundamental jurisdictional question: what is the essential nature of this dispute?” In her view, the twice-daily reporting requirement affects “some aspects of a Police Officer’s policing responsibilities and therefore remains within the ambit of the Chief’s exclusive control and direction and does not arise directly or inferentially from the administration, application or

interpretation of the Collective Agreement.” She held, “The essence of the Order and the challenge to it is about the exercise of supervision and an operational decision, matters that are outside the authority of the Police Services Board, outside the scope of bargaining and therefore also outside the jurisdiction of arbitration.” [14] [ 21 ] In coming to her conclusion, the Arbitrator made extensive reference to and relied upon her own decision in a previous case involving the same parties, referred to as the “ Procedure 15-10” case . [15] In that case, the dispute involved directions issued by the Chief of Police restricting the circumstances in which a police officer was permitted to discharge a firearm at the operator or occupant of a motor vehicle.

The Arbitrator held that this was a matter within the Chief’s exclusive authority and not subject to arbitration. The Arbitrator held that the issues in the case now before this Court “are very parallel” to the Procedure 15-10 decision, and reached the same conclusion in this case, for essentially the same stated reasons. [ 22 ] The Arbitrator considered the Divisional Court decision in Toronto Police Services Board v. Phipps , [16] but distinguished it as being limited to the Board’s liability for a police officer breaching the Ontario Human Rights Code .

The Arbitrator also either distinguished or referred to, but failed to apply: • Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association (an award requiring two police officers to man a car on patrol at night found to be arbitrable) [17] • Durham Regional Police Association v. Regional Municipality of Durham Police Services Board , (a rule requiring two officers in a car found to be arbitrable) [18] • Police Services Board v.

Waterloo Regional Police Association (no beards policy found to be arbitrable) [19] • Ontario Provincial Police Association and the Queen in Right of the Province of Ontario (a rule requiring suspended OPP officers to report twice daily found by an arbitrator to be unreasonable) [20] [ 23 ] In the result, the arbitrator concluded that she had no authority to resolve the grievance and declared it to be outside the scope of arbitral review.

D. STANDARD OF REVIEW [24] The Association submits that this is a true jurisdictional question and that the standard of review is correctness, relying onDunsmuir v. New Brunswick.[21] In that case, the Supreme Court of Canada held that a correctness standard applied to questions ofjurisdiction, but cautioned reviewing courts against labeling things as jurisdictional too readily, reserving that categorization forquestions that are truly jurisdictional in the sense that they involve whether a tribunal had the lawful authority to undertake a particularinquiry.

The Court held at para. 59: Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions ofvires to distance ourselves from the extended

definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for manyyears. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words,true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority todecide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or toconstitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada(loose-leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City),2004 SCC 19 , [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized underthe relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.).

That case involved thedecision-making powers of a municipality and exemplifies a true question of jurisdiction or vires. These questions will be narrow. Wereiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [25] Since Dunsmuir the Supreme Court has had occasion to review and comment on the distinction between issues that aresometimes labeled as jurisdictional even by decision-makers, but that do not fall within the narrow category of questions of “truejurisdiction” attracting a correctness standard of review.

Of particular relevance to the case at hand is the Supreme Court’s decision inAlberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association.[22] In that case, the majority held that “true”questions of jurisdiction, if they exist at all, will be “exceptional” and particularly distinguished a tribunal’s

interpretation of its ownhome statute as not being a jurisdictional question in the true sense of that word. The Court stated at para. 34: The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when thetribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statute involvesthe determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, sinceDunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the timehas come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary toidentifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in thesereasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the

interpretation by thetribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should bepresumed to be a question of statutory

interpretation subject to deference on judicial review. [26] The use of the word “jurisdiction” by the Arbitrator in describing the issue she had to decide is not determinative of thestandard of review. The essence of the question before the Arbitrator was arbitrability; whether the subject matter of the dispute waswithin the terms of the collective agreement.

To answer that question, the arbitrator was required to interpret the collective agreementitself and the Police Services Act, which is the home statute dealing with, among other things, police discipline and the division ofauthority between the Chief and the Board. These are the types of issues that are at the core of the expertise of labour arbitrators. [27] In a pre-Dunsmuir decision, O.P.S.E.U. v. Seneca College,[23] the Ontario Court of Appeal held that an arbitrator’s decisionas to whether an issue was arbitrable was entitled to deference and that the standard of review was patent unreasonableness.

TheSupreme Court held in Dunsmuir that where the standard of review has already been settled, it is not necessary to engage in an extensiveanalysis of the factors determining the standard.[24] Further, the Court held that the abolition of the patent unreasonableness test did notsignal any diminution in the level of deference to be given to administrative tribunals and arbitrators.[25] It follows, that the standard ofreasonableness would now apply to decisions previously reviewed on the patently unreasonable standard. Indeed, post-Dunsmuir, theDivisional Court has applied O.P.S.E.U v.

Seneca College[26] to impose a reasonableness standard on a labour arbitrator decision as toarbitrability. [28] In this case, the Arbitrator was engaged in the classic test of arbitrability as defined by the Supreme Court of Canada in Weberv. Ontario Hydro, which involves first deciding what is the “essential character” of the dispute, and then whether the dispute arises fromthe “interpretation, application, administration or violation” of the collective agreement.[27] As such, her decision is entitled todeference and is reviewable on the standard of reasonableness. E.

RELEVANT STATUTORY and COLLECTIVE AGREEMENT PROVISIONS The Collective Agreement [29] The collective agreement does not specifically address the issue in dispute. If the dispute in this case falls within thecollective agreement at all, it can only be because it is within the management rights clause, which states:

Article 3 - Management Rights 3.01 (

a) The Association and its members recognize and acknowledge that, subject to the provisions of the Police Services Act and theRegulations thereto, it is the exclusive function of the Board to: (

i) maintain order and efficiency; (ii) discharge, direct, classify, transfer, promote, demote or suspend, or otherwise discipline any member;

(iii) hire. (

b) If a member claims that the Board has exercised any of the functions outlined in paragraph (a) (ii) in a discriminatory manner or without reasonable cause, then such a claim may be the subject of a grievance under the provisions of the grievance procedure outlined in the Collective Agreement or dealt with under the procedures within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services, as prescribed by the Police Services Act . (

c) The Board agrees that it will not exercise any of the functions set out in this

Article in a manner inconsistent with the provisions of the Collective Agreement or the Police Services Act of Ontario and the Regulations thereto. [ 30 ] The reporting requirements for officers coming on duty is specifically dealt with in

Article 5.01 (

b) as follows: 5.01 (

b) Each member shall report for duty at least fifteen minutes prior to the commencement of his/her tour of duty, which time shall not be included in computing the duration of such period. [ 31 ] The management rights clause is expressly subject to the provisions of the Police Services Act and its Regulations. But for this exception, it seems clear that the reporting requirement for suspended officers would fall within the collective agreement as part of maintaining order and efficiency or directing officers and that if management unreasonably exercised that function, the issue could be grieved.

The fact that reporting requirements for officers on active duty is part of the collective agreement reinforces that view. The question, then, is whether there are statutory restrictions taking that function away from the Board. The Police Services Act [ 32 ] Police officers of the Toronto Police Service are employees of the Board. However, the relationship between the Board and the police officers it employs is not a typical employer/employee relationship.

While there is a collective agreement and the Board in many ways is the employer and responsible for the management of the officers, police officers also have a public duty that is not susceptible to supervision by the Board. Those public duty type responsibilities of police officers are subject to the supervisory power of the Chief of Police, not the Board.

Therefore, the language of the collective agreement must always be interpreted in a manner that does not encroach upon the Chief’s power and authority over police officers employed by the Board and cannot give to the Board powers of supervision or authority that are vested by statute in the Chief of Police. [ 33 ] The various powers, duties and responsibilities of the Board, the Chief and police officers are set out in the Police Services Act . [ 34 ] The public duties of a police officer are set out in s. 42(1) of the Act and include: (

a) preserving the peace; (

b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention; (

c) assisting victims of crime; (

d) apprehending criminals and other offenders and others who may lawfully be taken into custody; (

e) laying charges and participating in prosecutions; (

f) executing warrants that are to be executed by police officers and performing related duties; (

g) performing the lawful duties that the chief of police assigns; … [ 35 ] In addition, s. 42(3) of the Act confirms that a police officer has the “ powers and duties ascribed to a constable at common law.” Those duties are essentially the same as are itemized in s. 42(1). [ 36 ] The duties of a chief of police are set out in s. 41 of the Act as follows: 41.

(1) The duties of a chief of police include, (

a) in the case of a municipal police force, administering the police force and overseeing its operation in accordance with the objectives, priorities and policies established by the board under subsection 31 (1) ; (

b) ensuring that members of the police force carry out their duties in accordance with this Act and the regulations and in a manner that reflects the needs of the community, and that discipline is maintained in the police force; (

c) ensuring that the police force provides community-oriented police services; (

d) administering the complaints system in accordance with

Part V. …

(2) The chief of police reports to the board and shall obey its lawful orders and directions. [ 37 ] The responsibilities of the Board are set out in s. 31 as follows: 31.

(1) A board is responsible for the provision of adequate and effective police services in the municipality and shall, (

a) appoint the members of the municipal police force; (

b) generally determine, after consultation with the chief of police, objectives and priorities with respect to police services in the municipality ; (

c) establish policies for the effective management of the police force ; (

d) recruit and appoint the chief of police and any deputy chief of police, and annually determine their remuneration and working conditions, taking their submissions into account; (

e) direct the chief of police and monitor his or her performance ; (

f) establish policies respecting the disclosure by chiefs of police of personal information about individuals; (

g) receive regular reports from the chief of police on disclosures and decisions made under

section 49 (secondary activities); (

h) establish guidelines with respect to the indemnification of members of the police force for legal costs under

section 50 ; (

i) establish guidelines for dealing with complaints under

Part V, subject to subsection (1.1); (

j) review the chief of police’s administration of the complaints system under

Part V and receive regular reports from the chief of police on his or her administration of the complaints system. [emphasis added] [ 38 ] In addition, s. 31(6) provides that the Board “ may, by by-law, make rules for the effective management of the police force.” [ 39 ] The Board’s powers are specifically circumscribed by s. 31(3) and (4) as follows:

(3) The board may give orders and directions to the chief of police, but not to other members of the police force, and no individual member of the board shall give orders or directions to any member of the police force.

(4) The board shall not direct the chief of police with respect to specific operational decisions or with respect to the day-to-day operation of the police force. [ 40 ]

Part VIII of the Act deals with labour relations, including collective bargaining and arbitrations. The scope of what is “bargainable” in a collective agreement is defined in s. 126 of the Act as follows: Agreements and awards made under this Part do not affect the working conditions of the members of the police force in so far as those working conditions are determined by sections 42 to 49, subsection 50 (3),

Part V (except as provided in subsections 66 (13) and 76 (14) ) and

Part VII of this Act and by the regulations. [ 41 ] For the most part, the provisions that are said to override what is bargainable have no application in this case. Sections 43-49 deal with the legal requirements to become a police officer, the probationary period for new hires, human rights protections for officers, the oath of office, and restrictions on political activity and secondary activities. None of those can be the subject of the collective bargaining process.

Part V of the Act deals with discipline proceedings against officers.

Part V11 deals with investigations by the Special Investigations Unit, and ss. 50(3) states that the parties can enter into an agreement with respect to indemnification of police officers for legal costs. For the purposes of this case, what is not bargainable arises from s. 42, which sets out the public duties of a police officer. Again, the question comes down to what is a matter of policing and what is a labour relations matter as to working conditions. F.

ANALYSIS [ 42 ] The Arbitrator correctly noted that the answer to this question comes down to determining what is the “essential nature” of the twice-daily reporting requirement. [28] She also correctly held that form cannot triumph over substance; the question is not who actually issued the order, but rather whether it was issued on a matter within the exclusive authority of the chief of police. [29] However, the Arbitrator acted unreasonably in failing to properly consider and apply established jurisprudence, and also acted unreasonably in her

interpretation of the legislation and the collective agreement. As a result, she came to an unreasonable conclusion that cannot be justified. The Arbitrator Unreasonably Distinguished Relevant Jurisprudence [ 43 ] In my view, the Arbitrator unreasonably relied upon her earlier decision in Procedure 15-10 given that its “essential nature” was fundamentally different from the situation in this case. Apart from the fact that the same statute, collective agreement and police force were involved, I see no parallel between the nature of the dispute in that case and the one now before us.

In Procedure 15-10 , the challenged directive dealt with restrictions on when police officers, actively engaged in law enforcement, were entitled to discharge their firearms against the driver or occupant of a motor vehicle. This is clearly an operational order relating directly to the exercise of the public duties of a police officer. Not surprisingly, the Arbitrator found this to be the type of directive that could be given only by the Chief of Police. It is completely outside the sphere of the Board’s authority. By way of contrast, the directive in this case has no direct

link to law enforcement. It relates only to suspended officers who are not engaged in active duty and who have no public duties to perform. This is a fundamental distinction that appears to have been overlooked by the Arbitrator. [ 44 ] Further, in my view, the Arbitrator unreasonably distinguished case authority that is relevant and which does, in fact, have a direct parallel to this case. [ 45 ] The closest case on its facts is the decision of Arbitrator Trachuk dealing with a similar twice-daily reporting requirement for suspended OPP officers.

Arbitrator Knopf distinguished the case on the basis that the issue of arbitrability was not directly challenged and because it involved a “slightly different” statutory scheme. It is correct that arbitrability was not raised as a jurisdictional question. However, it is clear from Arbitrator Trachuk’s reasons that she considered issues related to whether this issue could be subject to a grievance. Further, the statutory schemes are not identical, but they are very similar.

For the OPP there is also a separation between what can be the subject of a collective agreement ( e.g. working conditions) and what is the exclusive jurisdiction of the Commissioner ( e.g. discipline and operational orders relating to policing). Arbitrator Knopf did not indicate which statutory provisions she considered to distinguish the situation of Toronto Police officers from OPP officers, although she was likely referring to the absence of a specific provision equivalent to s. 41 of the Act .

In my opinion, on this particular aspect of the duties and powers as between police officers and management, there is no operative difference between the two regimes. That does not mean that Arbitrator Knopf was bound by the OPP decision; clearly she was not.

However, the basis upon which she distinguished the case demonstrates that she misapprehended the essential nature of the issue in this case. [ 46 ] The Arbitrator also unreasonably distinguished the Divisional Court’s decision in Waterloo Police Services. [30] That case involved a rule that police officers were required to be clean-shaven (with exceptions for officers working undercover and those for whom a beard was mandated for religious or medical reasons). The no-beard rule was set out in a Board policy and implemented by a standing order of the Chief of Police.

An individual officer, in open defiance of the rule, attended for duty sporting a four to six-day growth of beard. His staff sergeant ordered him to shave it off, which he refused to do, maintaining that it was not a lawful order. He was suspended. A disciplinary hearing on a charge of misconduct was taken before the Ontario Civilian Commission on Police Services (“OCCOPS”). OCCOPS held that it was necessary to keep separate matters of discipline (governed by

Part V of the Act ) as opposed to matters of labour relations (governed by

Part VII of the Act ). OCCOPS found that the officer’s actions were insubordinate and deserving of disciplinary sanction. OCCOPS also noted that it was not open to an officer to simply disobey an order, no matter how unreasonable the order, but that there was recourse to file a grievance for a determination as to its reasonableness. [ 47 ] The matter was also brought before an arbitrator as a policy grievance and the arbitrator concluded the rule was unreasonable. The Waterloo Police Board took the position before the Divisional Court that the arbitrator lacked jurisdiction to deal with the matter. The Divisional Court disagreed, holding that the dispute related to the

interpretation of the collective agreement. The Waterloo Board had also argued that the essential nature of the dispute was disciplinary. Again, the Divisional Court disagreed, finding that the policy grievance was advanced independently of the disciplinary proceedings. [ 48 ] In the present case, the Arbitrator stated that her conclusion “may initially appear to be contrary to the decision in [ Waterloo Police Services ]” but went on to state three things she believed made it distinguishable.

First, she quoted the following portion of the Divisional Court decision in Waterloo Police Services and pointed out that these were the “particular circumstances that made that situation arbitrable:” [31] No individual officer was a party to the grievance. The resolution of the grievance has no disciplinary consequences for any particular officer. Although a police officer may be found guilty of having disobeyed an order …, an arbitrator may determine that the policy underlying the order violates the collective agreement. These conclusions do not conflict with each other.

The grievance was advanced independently of disciplinary proceedings, and could have been advanced after the disciplinary proceedings arising out of a refusal to comply with an order. [ 49 ] Second, the Arbitrator stated that the case before her was “similar in terms of its form, but very different in terms of its substance.” Her basis for saying so was that the Order in this case was issued by the Chief, and not at the behest of the Board.

Third, she said that “the parties to the case at hand have agreed that the imposition of a twice-daily reporting requirement is not, in itself, a disciplinary matter.” [32] [ 50 ] None of these three points is a legitimate basis upon which to distinguish the Waterloo decision. [ 51 ] First, the particular provision of the Waterloo collective agreement which the Divisional Court found made the no-beard rule arbitrable was

article 2.01, which provided that a claim that an employee had been disciplined without reasonable cause may be the subject of a grievance. That is the equivalent of

Article 3.01(

b) of the collective agreement in this case (the management rights clause). In the Waterloo case, the Divisional Court held that even though a matter may proceed to discipline if an officer disobeys an order, an arbitrator still has jurisdiction to determine the reasonableness of the rule. The Court held, at para. 14: Harmony in the workplace would be promoted by allowing the officer to “obey now and grieve later”.

Adoption of the Applicant’s position that only the Chief of Police or OCCOPS has jurisdiction to determine whether a policy or order violates the collective agreement would force an officer to disobey an order to challenge a policy or directive on the ground that it violated the collective agreement.

Given that collective agreements bind police services boards, it cannot be that an association would have no remedy for a breach of the collective agreement involving working conditions, absent disobedience by an officer. [ 52 ] Thus, the paragraph from Waterloo cited by the Arbitrator does not distinguish it from this case. On the contrary, this case involves precisely the same situation. An individual officer subjected to the rule should not have to disobey the rule in order to test its reasonableness.

Indeed, that would not be an effective strategy as the officer would be found to be insubordinate and disciplined, regardless of whether the rule itself is reasonable or unreasonable. The appropriate course of action is a grievance under the collective agreement to determine whether the rule is unreasonable, which is the procedure that was taken in this case. [ 53 ] The Arbitrator’s second basis for distinguishing Waterloo is also invalid. The fact that the policy in Waterloo initially emanated from the Board and then became part of a standing order from the Chief is not determinative.

That would be a triumph of form

over substance, which the Arbitrator herself found inappropriate. The question is whether the rule was within the sole authority of the Chief. The fact that the Chief made the Order does not change or affect that essential issue. The Board is responsible for and may direct the Chief’s actions, unless they are within the sphere of authority reserved exclusively to the Chief under the Act . [ 54 ] The third distinguishing factor raised by the Arbitrator is irrelevant.

The rule could , if disobeyed, result in the offending officer being disciplined, a particularly serious matter given that the officer is already under suspension for something else. The situation was precisely the same for the no-beards policy in Waterloo .

It was not by itself a disciplinary matter, but it could become a disciplinary matter if disobeyed. [ 55 ] In short, I can see no basis for distinguishing this case from the Waterloo Police Services case, except that the officers subject to the challenged rule in this case are by definition not involved in active service and have no public duties, a feature that would tend to support the matter being arbitrable, rather than the contrary. [ 56 ] This is by no means a new concept.

It was dealt with by the Ontario Court of Appeal as early as 1975 in a case involving the Toronto police force. [33] That case involved a grievance in which an Arbitrator made an award that all uniform police cars on patrol at night be manned by two fully trained and armed police officers. This ruling was challenged as being outside the jurisdiction of the Arbitrator and encroaching upon the duties owed by an officer to the public, as opposed to his employer.

The Court of Appeal held that there are many working conditions subject to collective bargaining that have some affect on the performance of an officer’s public duties. The Court gave as an example a provision for hours of work without compulsory overtime. Although there could be emergent situations that would override a general rule because of the need to suppress crime, in the ordinary course, hours of work and overtime pay could readily be the subject of collective bargaining.

The Court held that two officers in a patrol car at night was a working condition because it related to officer safety and did not override the Commissioner’s exclusive statutory powers in relation to the public duties of police officers to preserve the peace, prevent crime, and apprehend and prosecute offenders.

Although there have been many amendments to the Act since 1975, these basic principles remain applicable. [ 57 ] Interestingly, the issue was revisited in 2007 in a Durham case involving the same rule (two officers in a patrol car at night) and in which the matter proceeded before Arbitrator Knopf as an interest arbitration. [34] The issue was whether the Court of Appeal decision was still applicable given the 1990 amendments to the Act delineating the respective responsibilities of boards and police chiefs.

The Board argued in that case that s. 31(4) excluded the Board from making operational decisions or directives relating to the day-to-day operation of the police force. Therefore, it was argued, the staffing of police cars, which directly affected police operations, could not be the subject of arbitration. This argument was rejected by the Arbitrator. She held that the Court of Appeal decision was still directly applicable, stating as follows (at paras. 69-70): 69.

This is the first police sector case that has squarely demanded the resolution of the jurisdictional issue since the Court of Appeal’s decision in the Metropolitan Toronto Police Commissioners case mentioned above. While we are under a different statute, we must start from the assumption that this case is a significant and guiding authority. The question then becomes whether the enactment of the Police Services Act in 1990 has changed the situation. Under the old Police Act , s. 29(2), the parties could bargain “working conditions” except those that were governed by the regulations.

Now, under the Police Services Act , the parties must still meet to bargain their “working conditions.” However, there are specific limits on what is ‘bargainable,’ such as the stipulations that agreements and awards cannot affect the duties of police officers, hiring criteria, probationary periods, oaths of office and secrecy, political activity, legal indemnification, discipline complaints and the role of the Special Investigations Unit, see S. 126 . The PSA has also made the respective roles of the Board and the Chief more explicit.

Under s, 31(1) the Board can and must, amongst its other duties, generally determine, after consultation with the Chief, objectives and priorities. It must also establish policies for the effective management of the Police force, recruit and appoint the Chief of Police, and direct and monitor his or her performance. The Chief must then administer the police force, oversee its operation in accordance with the objectives, priorities and policies established by the Board.

The Chief must also maintain discipline and ensure that members of the force carry out their duties in accordance with the Act and the regulations in a manner that reflects the needs of the community. On top of this more delineated scheme, the Regulations further refine the scope of responsibilities. Regulation 421/97, s. 12 dictates that Board members shall not interfere with the Police force’s operational decisions and responsibilities or with the day-to-day operation of the Police force.

S. 12(2) also allows for a chief to establish procedures for when more than one officer must respond to an occurrence or a call for service. Regulation 3/99 also requires a Chief to establish procedures on public order unit services which set out the circumstances in which that unit may be deployed. 70. Do these Regulations and the scheme of the PSA mean that the parties can no longer bargain over issues of deployment or two- officer cars?

In particular, does Regulation 421/97’s prohibition against the Board interfering with “operational decisions” and “day-to- day operations” take away its ability to bargain provisions that may affect operations, such as

Article 19.01 ? The answer to this question must be ‘no’. Many provisions in a collective agreement affect operations. Vacations, overtime, leave of absence, severance, promotions, and shift schedules are clearly within the scope of police sector collective bargaining and directly affect generalized operational matters in terms of budget, planning and even deployment. Policing operations are constantly impacted by normal and vacation schedules, shift premiums, leave provisions and other items that are routinely bargained into collective agreements without raising any jurisdictional concerns.

If such items were not within the realm of bargaining in this sector, the right to bargain under s. 119(3) would be a facade . To take the example to the extreme, even bargaining over salaries has an impact on operations because the resources allocated to salaries affect other operational resources that are available in a region. That must be why the Court of Appeal recognized that under the Police Act there was a balancing of a Police Commission’s ability to bargain working conditions with its responsibilities towards governance.

While the PSA may have more clearly delineated some of the focal points of authority, it has not taken away that balance. While there still may be a cost impact arising from contract items that impact upon operations, that fact does not take away a Police Service Board’s or a Chief’s ability to fulfill their statutory duties.

The words of the Court of Appeal that were applied to the Police Act in the Metropolitan Police Commissioners case are still applicable to the PSA today. [emphasis added] [ 58 ] Although the Arbitrator referred to both decisions involving the “two officers in a police car rule,” inexplicably, she did not apply them, nor did she comment on why she did not apply them. In her Procedure 15-10 decision, she quoted a paragraph from the Durham case, which would seem to me to be supportive of the Association’s position in this case. However, although that portion of the

Procedure 15-10 decision is reproduced in the subject decision, no specific mention is made of the applicability of the principles in that case to the case at hand. [ 59 ] It seems to me that a rule about staffing police cars on patrol is far more akin to an operational policing decision than a rule about reporting times for suspended officers. Yet, both the Court of Appeal and the Arbitrator herself in the Durham case, held that such a rule was arbitrable. If that rule is arbitrable, surely the one now before the Court would be as well. The Arbitrator’s decision fails to address this critical issue in this case. [ 60 ] Thus, I find the Arbitrator’s

interpretation and application of case law to be unreasonable. The main case that she applied was her own decision in Procedure 15-10 , dealing with an officer’s discharge of a firearm in the line of duty. That case is distinguishable on its facts, and cannot reasonably be regarded as equivalent to a situation of suspended officers signing in twice daily.

On the other hand, case law dealing with the arbitrability of whether a police officer can have a beard, how many police officers must be in a patrol car, and reporting requirements for suspended OPP officers were not applied, and in some cases distinguished, on grounds that cannot bear scrutiny. This is not a process of reasoning that can be said to be logical, reasonable, or supportable.

The Arbitrator Unreasonably Interpreted the Legislation [ 61 ] The Arbitrator in this case fastened on s. 31(4) of the Act , which provides that the Board shall not direct the chief of police with respect to “specific operational decisions” or with respect to the “day-to-day operation of the police force.” The Arbitrator unreasonably extrapolated from that provision that all operational decisions and all day-to-day operations are solely the purview of the chief and cannot be subject to collective bargaining.

That is an unreasonable construction of the provision and the Act as a whole and one that leads to an absurdity. [ 62 ] The reference to “operational” decisions and day-to-day “operations” cannot mean every decision of the Chief that affects an officer’s day-to-day work or the general operation of the police force. Almost by definition, every order of the Chief dealing with officers will have some impact on the day-to-day working conditions of officers. If all such decisions are found to be exclusively within the authority of the Chief, nothing would be left for collective bargaining.

That would be inconsistent with

Part VIII of the Act , which clearly contemplates collective bargaining about various working conditions. [ 63 ] The words used in a statute must be looked at in context and interpreted in a manner consistent with its purpose and legislative intent. [35] Looked at in context, it is clear that the division of responsibilities in the Act is meant to separate the role of the Board as employer from the role of the chief of police in directing the operations of policing and supervising police officers in the exercise of their public duties.

That is how this issue has been dealt with historically and is consistent with both the necessity of safeguarding the independence of police officers in the exercise of their duties and the policy underlying much of the legislative change in 1990, including that of providing more civilian oversight of police officers through the Board. [36] As noted above, it also consistent with long-standing judicial precedent. [37] [ 64 ] It is not reasonable to construe the restriction of the Board’s authority under s. 31(4) as broadly as the Arbitrator did, particularly in light of the broad powers otherwise vested in the Board under s. 31(1).

If s. 31(4) is interpreted as excluding the Board from any matters affecting the day-to-day operation of the police force, then the Board’s responsibility under s. 31(1)(

c) to establish policies for the “effective management” of the police force will have been rendered nugatory. [ 65 ] I believe the governing concept is well-stated by the Arbitrator herself in Durham in the paragraphs excerpted above and in paragraphs 79-80 as follows: [38] 79. Similarly, while a Board cannot direct the day-to-day operations or take away a Chief’s ability to direct operations, a Board still has the power “to establish the policies and procedures that are necessary to provide adequate and effective Police services.” See Odhavji Estate v. Woodhouse, supra.

The legislation must be taken to have created a harmony between a Board’s and the Chief’s respective responsibilities. Otherwise, a Board’s policies could have no impact on a Police service. The harmony exists because there is an inevitable interface between Board policies and operational decisions. One sees this with the granting of the Board the power to determine objectives and priorities in consultation with the Chief, and yet leaving the Board with the sole power to establish policies for the effective management of the force.

The Chief is then charged with the responsibility of administration and oversight “in accordance with the objectives, priorities and policies established by the Board,” ss. 31 and 41 . One sees this actualized in the course of collective bargaining with items such as shift schedules, vacation provisions and leave of absence policies that are determined by a Board, in consultation with its Chief, and then implemented into collective agreements. A Chief then has to determine day-to-day operations in accordance with these policies and the Board has to budget accordingly.

Therefore, the mere fact that a Board’s policy may affect operations does not make that policy outside the scope of the Board’s authority. Police Service Board policies can and must, by definition, pertain to the effective management of the police force. Therefore, they can affect, without interfering with day-to-day operations. Viewed in this way, there is no conflict between the Board’s policy making powers over working conditions and the Chief’s powers over operations. There is, in fact, a harmony in our scheme of governance over policy services.

That scheme allows for collective bargaining and yet preserves the respective authorities of the Boards and Chiefs. That harmony may be strained by budgetary stresses. But the harmony nonetheless exists. 80. This leads to the question of whether

Article 19.01 is, in essence, a provision that “interferes with . . . operational decisions” or amounts to improper directions with respect to “specific operational decisions.” This is a general staffing

article and does not amount the kind of micro-managing or specific interference with daily operations that the PSA clearly intended to prevent. It can and must be viewed essentially a policy that was adopted for what was once thought to be “effective management” of the force. The PSA respects the separate functions of policy making and specific or day-to-day operations. See Odhavji v. Woodhouse, supra, at para. 53. A Board’s determination of effective management policy through a staffing provision is consistent with its mandate under the statute and reflects its role in relation to a Chief. [emphasis added] [ 66 ] A chief of police has the duty under s. 41(1)(

b) and (

d) to ensure that members of the police force carry out their duties in

accordance with the Act , to ensure that discipline is maintained and to administer the complaints system under

Part V of the Act. These are matters of policing and are the exclusive authority of the chief of police. The chief of police also has the duty under s. 41(1)(

a) to administer the police force and oversee its operation in accordance with the objectives priorities and policies established by the Board. This is the chief’s managerial role as delegate of the Board. Although he is the one who issues orders to his officers, sets the schedules and the like, he is subject in that regard to the supervision of the Board. It is these matters that are subject to collective bargaining, matters that relate to police officers as employees, rather than as constables of the law.

The Arbitrator Unreasonably Interpreted the Collective Agreement [ 67 ] The Arbitrator unreasonably failed to apply relevant long-standing case authority and unreasonably misconstrued s. 31(4) of the Act . She then carried this unreasonable construction of the restricted functions of the Board into her analysis of the essential nature of the twice-daily reporting requirement and her

interpretation of the collective agreement. As a result, she determined that the twice- daily reporting requirement involved the “day-to-day operations” of the police service and therefore was within the “exclusive” authority of the Chief. She reasoned as follows at para. 64 of her Reasons: This case does not involve the typical day-to-day operations such as assignments or directions while on duty. However, it does involve the daily lives of suspended members who remain as paid employees and directly affects their ability to function during each day.

The Order also affects the role and responsibility of the Duty Officers who receive the twice-daily sign-ins. [ 68 ] If orders that “involve the daily lives” of officers are solely within the authority of the Chief, it is hard to imagine any order he could give that would not be in his sole authority, and equally hard to imagine what role the board would have to play at all. This flies in the face of how the parties have governed themselves for decades, and is contrary to the provisions of the collective agreement itself.

Many provision of the collective agreement relate to the day-to-day lives of police officers. The collective agreement covers items such as hours of work, time of shifts, vacation time, two-officer patrol cars and court appearances.

All of these matters would fall within the Arbitrator’s concept of “day-to-day operation” of the police force, but all have been treated by the parties as subject to collective bargaining and the grievance process. [ 69 ] In concluding that the twice-daily reporting requirement was within the exclusive authority of the Chief, the Arbitrator failed to give proper effect to the terms of the collective agreement. In fact, the twice-daily reporting requirement falls within the management rights clause of the collective agreement in two respects:

(1) Under

Article 3.01(a)(ii) the Board has the right to “direct” a member, which it does through policies and directives implemented by the Chief as the Board`s delegate. However, if the Board does so “in a discriminatory manner or without reasonable cause,”

Article 3.01(

b) stipulates that this may be the subject of a grievance. Thus, the essential character of the dispute in this case is that a directive was given to suspended officers without reasonable cause, which is within s. 3.01 of the collective agreement.

(2) As a general principle, there is a duty on an employer acting under a management rights clause to exercise its discretion to make rules with disciplinary consequences in a reasonable manner. [39] This is in keeping with the obey now and grieve later rule which is also a well-settled labour law concept and which has been recognized in police labour cases such as the Waterloo no-beards rule. [ 70 ] It is particularly worth noting that

Article 5.01(

a) of the collective agreement requires each officer to report for duty at least 15 minutes prior to the commencement of his/her tour of duty, with that time not included in computing the duration of the period for salary purposes. This relates to officers on active service reporting for duty before the start of their shift. This has obvious “operational” implications, but is dealt with as an arbitrable matter by the parties.

If reporting requirements for officers on active public duty are not subject to the Chief’s exclusive authority, it is not possible to make the opposite case for reporting requirements for suspended officers not in the course of their policing duties. If anything, the latter is further removed from the sphere of policing activities and more clearly within the management sphere of employee supervision. [ 71 ] The Arbitrator’s

interpretation of the collective agreement is unreasonable in view of the language of the agreement itself, as well as the history of collective bargaining between the parties reflecting their own understanding of what was arbitrable. Unreasonable Outcome [ 72 ] I am mindful that the Arbitrator was acting within her core area of expertise in determining arbitrability and in interpreting the collective agreement and the Act . Her decision is entitled to considerable deference from this Court. However, it is not immune from review.

Judicial review is a right to which the parties are entitled and this Court cannot become a mere “rubber stamp” whenever a labour arbitrator is acting within her area of expertise. [ 73 ] In the oft-quoted definition of the standard of reasonableness in Dunsmuir , the Supreme Court of Canada stated at para. 47: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 74 ] What is often lost sight of, however, is that the Supreme Court held in Dunsmuir that the Arbitrator’s

interpretation of the home statute in that case was unreasonable. The Court held at paras 72 and 74: While we are required to give deference to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, we are unable to accept that it reaches the standard of reasonableness. The reasoning process of the adjudicator was deeply flawed. It relied on and led to a construction of the statute that fell outside the range of admissible statutory

interpretations. . . . By giving the PSLRA an

interpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to provide — or even have — such reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the

employment contract and, thus, fatally flawed. For this reason, the decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. [ 75 ] In my view, the same principles apply here. The Arbitrator’s reasoning process was deeply flawed. Her

interpretation of the statutory terms was outside the range of what can be considered reasonable, and inconsistent with long-standing case authority. As a result, she also completely misconstrued and misinterpreted the collective agreement itself and what was covered by it. [ 76 ] In the penultimate paragraph of her decision, the Arbitrator stated, “Whether the Order to require twice-daily reporting is a reasonable exercise of the Chief’s executive powers remains a vexing question that could only be decided on the basis of evidence presented in another forum.” [40] That reasoning is also fundamentally flawed.

There is no other forum for determining reasonableness. An order directing officers under suspension to report in from time to time is clearly a “lawful” order within the authority of the Chief and the Board. Such a provision has been in place in Toronto, and no doubt elsewhere, for decades. The issue here is not whether the order is “lawful” but whether it is “reasonable.” It is not open to police officers to simply refuse to comply with the lawful order to report. That would constitute insubordination, for which they would be subject to discipline.

At the time of discipline, the issue is never whether the order itself was reasonable, but rather whether it was lawful. The only forum for determining reasonableness is an arbitration such as the one brought here. [41] [ 77 ] That brings me to my final point. Not only is the reasoning process and the

interpretation of the collective agreement and legislation flawed, the outcome is itself unreasonable and indefensible. If the Arbitrator’s decision stands, there can now be no forum for determining this issue, or any similar issue. The Legislature cannot have intended that police officers subjected to unreasonable rules that are outside actual policing must simply carry on under those rules without any possibility of recourse. It is precisely because of this situation that collective bargaining of working conditions was introduced.

Officers under suspension who are signing in to headquarters are, by definition, not engaged in the execution of their duties as police officers. They are complying with a lawful order made by the Chief and they are performing an obligation they have as employees. To hold that this is a situation that cannot be the subject of collective bargaining is not an outcome that falls within the range of acceptable or reasonable outcomes as defined by the Supreme Court in Dunsmuir . G.

CONCLUSION [ 78 ] Accordingly, I conclude that the Arbitrator’s decision that the twice-daily reporting requirement for suspended police officers is not arbitrable is unreasonable and cannot stand. The Award is therefore quashed. [ 79 ] The Arbitrator’s decision was solely on the issue of arbitrability and did not deal with the merits of the grievance or whether the rule itself was unreasonable. That being the case, I see no reason to remit the matter to a different Arbitrator.

Rather, the matter is remitted to the same Arbitrator for a decision on the merits. [ 80 ] The parties are agreed that the appropriate costs award is $7500.00. MOLLOY J. HAMBLY J. HERMAN J. Released: July 2, 2013 CITATION : Toronto Police Association v. Toronto Police Services Board, 2013 ONSC 4511 DIVISIONAL COURT FILE NO.: 91/12 DATE: 20130702

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MOLLOY, HAMBLY and HERMAN JJ. BETWEEN: TORONTO POLICE ASSOCIATION Applicant – and – TORONTO POLICE SERVICES BOARD and PAULA KNOPF Respondents REASONS FOR DECISION MOLLOY J. HAMBLY J. HERMAN J. Released: July 2, 2013