Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360
Board of Police Commissioners of the City of Regina Appellant
v.
Regina Police Association Inc. and Greg Shotton Respondents
Indexed as: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners
Neutral citation: 2000 SCC 14.
File No.: 26871.
1999: November 12; 2000: March 2.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for saskatchewan
Labour law -- Jurisdiction of arbitrator -- Competing statutory regimes -- Police officer -- Disciplinary matters -- Police officer resigning rather than facing discipline proceedings -- Chief of Police refusing to accept officer’s withdrawal of resignation -- Union grieving decision under collective agreement and requesting arbitration -- Matters of discipline and dismissal dealt with by adjudicative bodies set up under the Saskatchewan Police Act, 1990 and Regulations -- Whether arbitrator had jurisdiction to hear dispute -- Application of Weber test.
A police officer resigned rather than face disciplinary action. He later withdrew his resignation, but the Chief of Police refused to accept the withdrawal. The officer’s union filed a grievance under the collective agreement and eventually requested arbitration. The arbitrator held that she did not have jurisdiction to decide the dispute since matters of police discipline and dismissal were governed by the Saskatchewan Police Act, 1990 and Regulations and came within the jurisdiction of the adjudicative bodies created under that legislation. The Court of Queen’s Bench dismissed the union’s application to quash that decision, but a majority of the Court of Appeal reversed it on appeal.
Held: The appeal should be allowed.
The test set out in Weber determines the issue in this case and applies equally when deciding which of two competing statutory regimes should govern a dispute. If the essential character of a dispute arises either explicitly or implicitly from the interpretation, application, administration or violation of a collective agreement, the dispute is within the sole jurisdiction of an arbitrator. To determine whether the dispute in this case arose out of the collective agreement, the nature of the dispute and the ambit of the collective agreement must be considered. Looking at the nature of the dispute, one must determine its essential character, which is based upon the factual context in which it arose, not its legal characterization. The key question is whether, in its factual context, the essential character of the dispute arises either expressly or inferentially from a statutory scheme. In the circumstances of this case, the issue is whether the legislature intended the dispute to be governed by the collective agreement or by The Police Act, 1990 and Regulations.
Here, the arbitrator had no jurisdiction to decide the dispute. The dispute clearly centred on discipline. The informal resolution of the disciplinary matter did not change its essential character. Looking at the ambit of the collective agreement, it is clear that the dispute between the parties did not arise, either explicitly or inferentially, from the interpretation, application, administration or violation of the collective agreement. The legislature intended The Police Act, 1990 and Regulations to be a complete code for the resolution of disciplinary matters involving members of the police force. It is public policy that police boards have exclusive responsibility for maintaining an efficient police force, an integral part of which is the ability to discipline members. No discretion exists to select another legal mechanism, like arbitration, to proceed against a police officer on a disciplinary matter. Nor can the collective agreement be interpreted in a way to offend the legislative scheme set out in The Police Act, 1990 and Regulations. Jurisdictional issues must be decided in a manner consistent with the statutory schemes governing the parties. Even if The Police Act, 1990 and Regulations do not expressly provide for the disciplinary action taken in this case, the action may still arise inferentially from the disciplinary scheme provided and, under a liberal interpretation of the legislation, the Saskatchewan Police Commission would have jurisdiction to hear the dispute.
Cases Cited
Applied: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; referred to: St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; Re Proctor and Sarnia Board of Commissioners of Police (1979), 99 D.L.R. (3d) 356, rev’d [1980] 2 S.C.R. 727; Mitchell v. Board of Police Commissioners of the City of Moose Jaw, Saskatchewan Police Commission, August 26, 1992.
Statutes and Regulations Cited
Municipal Police Discipline Regulations, 1991, R.S.S., c. P-15.01, Reg. 4, [am. Sask. Reg. 76/97].
Police Act, 1990, S.S. 1990-91, c. P-15.01, Part IV, ss. 60, 61, 66, 69.
Trade Union Act, R.S.S. 1978, c. T-17, s. 25(1) [rep. & sub. 1994, c. 47, s. 13(1)].
Authors Cited
Ceyssens, Paul. Legal Aspects of Policing. Toronto: Earlscourt Legal Press, 1994 (loose-leaf updated July 1999, Update 8).
APPEAL from a judgment of the Saskatchewan Court of Appeal (1998), 163 D.L.R. (4th) 145, [1999] 2 W.W.R. 1, [1998] S.J. No. 553 (QL), allowing the union’s appeal from a judgment of the Court of Queen’s Bench, dismissing an application to quash the decision of an arbitrator. Appeal allowed.
Neil Robertson, for the appellant.
Merrilee Rasmussen, Q.C., for the respondents.
The judgment of the Court was delivered by
Bastarache J. —
I. Introduction
1 This appeal concerns the jurisdiction of an arbitrator to hear and determine a grievance arising from a resignation tendered by a member of the Regina Police Service to avoid disciplinary proceedings.
II. Factual Background
2 The parties have agreed to the relevant facts in this case. The respondent, Greg Shotton was engaged as a member of the Regina Police Service in January 1977. He was promoted to the rank of Sergeant on April 19, 1995. On July 17, 1996, following events which are not at issue in this case, Sgt. Shotton was interviewed by members of the Regina Police Internal Affairs division, and advised that he would be charged with discreditable conduct pursuant to The Municipal Police Discipline Regulations, 1991, R.R.S., c. P-15.01, Reg. 4 (“Regulations”). He was later informed that he could also be subject to dismissal proceedings pursuant to The Police Act, 1990, S.S. 1990-91, c. P-15.01 (“The Police Act”).
3 On November 7, 1996, Chief of Police Murray Langgard informed Sgt. Shotton that he intended to issue “Notices of Formal Discipline Proceedings” on two counts each of corrupt practice and discreditable conduct and that he would be seeking an order for dismissal in the event of a conviction. The Chief of Police also advised Sgt. Shotton that he would not be subject to disciplinary action if he resigned from the Regina Police Force. The Chief of Police gave Sgt. Shotton five days to consider his options, and suggested that he contact a lawyer and a representative of the respondent Regina Police Association (“Union”) for advice.
4 On November 12, 1996, Sgt. Shotton tendered his resignation in writing to the Chief of Police. The resignation was accepted and, as a result, the discipline notices were not issued. From then on, Sgt. Shotton did not show up for work at the Regina Police Service. On November 27, 1996, Sgt. Shotton wrote to the Chief of Police, stating that “I hereby withdraw my letter of resignation dated November 12, 1996”. On December 2, 1996, the Chief of Police replied in writing, refusing to accept the withdrawal.
5 In a letter to the Chief of Police dated November 29, 1996, the Union filed a grievance on behalf of Sgt. Shotton. The Chief of Police heard the grievance on January 23, 1997 and denied it. The Union appealed the decision to the appellant Board of Police Commissioners of the City of Regina (“Employer”). The Employer heard and refused the appeal. Subsequently, the Union requested that the grievance proceed to arbitration. Gene Anne Smith was appointed as the arbitrator to hear and decide the grievance.
III. Judicial History
6 The Employer raised a preliminary objection, stating that the grievance was beyond the jurisdiction of the arbitrator because the issue was not subject to the collective agreement.
7 The arbitrator examined the relevant provisions of The Police Act and of the collective agreement. She noted that Article 8 of the collective agreement, which governs grievances, states that the grievance provisions in the agreement are not intended to be used in any circumstances where the provisions of The Police Act and Regulations apply. Turning to the provisions of The Police Act, she noted that Part IV, along with the Regulations, provide a procedural scheme for both disciplinary action and dismissal for breach of discipline, unsuitability for police service or incompetence. In contrast, she noted, the collective agreement has no provisions limiting the grounds for dismissal of an employee, and no provision was directly engaged by the grievance.
8 The arbitrator concluded that there was no legislative intention, in relation to the provision of police services in Saskatchewan, to make arbitration under the collective agreement the exclusive forum for resolving employment issues. In her view, the legislature clearly intended that discipline and dismissal of a police officer for cause would be dealt with in accordance with the criteria and procedures set out in The Police Act and Regulations. Therefore, she concluded that the grievance and arbitration provisions of the collective agreement do not apply to such matters, and the proper and exclusive forum for resolving such disputes is provided in the statutory requirement for a hearing before either the Chief, an independent hearing officer, or the Saskatchewan Police Commission (“Commission”). The arbitrator noted that each of these adjudicators has specialized expertise in law enforcement matters.
9 The arbitrator turned to the essential character of the grievance before her to determine whether it fell within the scope of the collective agreement or within the provisions of The Police Act and Regulations. She rejected the Union’s contention that the dispute was not about discipline or dismissal, but about whether Sgt. Shotton’s resignation was valid. She emphasized that the resignation whose validity was at issue was tendered in a disciplinary context. To determine whether the resignation was valid would require an assessment of Sgt. Shotton’s state of mind and of the reasonableness of his decision to tender his resignation. It would also require an assessment of the propriety of the actions of the Chief of Police in light of the statutorily mandated procedure to be followed in respect of disciplinary matters. The arbitrator found that none of these assessments could be made without considering the validity, strength and severity of the disciplinary charges that were being considered, or of the propriety of the Chief of Police’s actions. These matters, however, related to internal discipline which is clearly within the expertise of the adjudicators provided for under The Police Act and Regulations. In her view, the issues raised were not governed by the collective agreement and were not arbitrable. She thus declined to hear the grievance.
10 Kyle J. of the Saskatchewan Court of Queen’s Bench denied the Union’s application for an order quashing the arbitrator’s decision. He agreed in full with the reasons of the arbitrator.
11 Jackson J.A., for the majority of the Saskatchewan Court of Appeal, disagreed with the analysis of the arbitrator and allowed the Union’s appeal, finding that the arbitrator did have jurisdiction to hear and decide the grievance pursuant to the collective agreement: (1998), 163 D.L.R. (4th) 145.
12 Jackson J.A. characterized the central issue in the appeal as being the determination of the means by which the validity of Sgt. Shotton’s resignation could be tested. In her view, the primary difficulty with the arbitrator’s conclusion was that there was no mechanism for Sgt. Shotton to have the validity of his resignation tested under The Police Act. She examined the provisions of The Police Act and determined that on a plain reading of the statute Sgt. Shotton had no right to appeal to a hearing officer. She noted that the only individuals who could bring a matter to a hearing officer were those charged with disciplinary offences, or those individuals who had been subject to an order for dismissal, demotion, suspension, or some other measure on the grounds of unsuitability or incompetence, with reasons communicated in writing by the Chief. Sgt. Shotton was not charged with a disciplinary offence. She also found that there was no evidence that the Chief of Police made an order and communicated it in writing to Sgt. Shotton.
13 Jackson J.A. found that a hearing officer’s or the Commission’s jurisdiction is specifically articulated and based on the actions taken pursuant to the legislative provisions. In her view, when the actions taken by a chief of police are not provided for by the legislative provisions, The Police Act cannot apply, despite the fact that matters of discipline and most matters of dismissal are exclusively governed by The Police Act.
14 Jackson J.A. proceeded to determine whether the arbitrator or the courts should take jurisdiction over the matter. She concluded that the jurisprudence of this Court confirmed that arbitration is the appropriate forum to resolve disputes which arise from the employment relationship. Since the issue of the validity of Sgt. Shotton’s resignation arose in the employment context, the grievance procedure provided by the collective agreement was preferable to litigation before a court. The arbitrator’s decision was quashed.
15 Vancise J.A., in dissent, disagreed with the majority’s characterization of the issue on appeal. The fundamental issue, he found, was the jurisdiction of the arbitrator to hear the dispute, not the remedy that might be available to Sgt. Shotton. The central question, therefore, was whether the dispute between the parties arose out of the application, interpretation, administration or violation of the collective agreement. Vancise J.A. emphasized that it is not the legal characterization of the matter which is determinative of the issue, but whether the facts of the dispute fall within the ambit of the collective agreement. He also emphasized that members of the police force are governed by two regimes: the collective agreement governs the terms and conditions of employment for all matters except discipline, while The Police Act governs all matters of discipline including dismissal.
16 Vancise J.A. found that, following this Court’s decisions in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and New Brunswick v. O’Leary, [1995] 2 S.C.R. 967, there were two steps to determining whether the arbitrator had jurisdiction to hear and decide Sgt. Shotton’s grievance. The first step was to define the essential character of the dispute in the context of the facts. The second step was to determine whether the dispute fell within the ambit or terms of the collective agreement. He found that the dispute clearly centred around discipline. There had been an internal investigation leading to a recommendation for formal charges. There had been notice of intention to initiate formal disciplinary proceedings. The matter was then resolved informally through resignation. The informal resolution of the disciplinary matter did not change the essential character of the dispute from a disciplinary matter to an employment matter.
17 Vancise J.A. found that The Police Act and Regulations set out a comprehensive code for the investigation and adjudication of disciplinary proceedings. There was no corresponding procedure in the collective agreement. He found, therefore, that the arbitrator did not have jurisdiction to consider the dispute.
18 With respect, I disagree with the reasons of the majority of the Court of Appeal. I agree in substance with the reasons of Vancise J.A. in dissent. The arbitrator was correct in finding that she did not have jurisdiction to hear this dispute.
IV. Legislation
19 The Police Act, 1990, S.S. 1990-91, c. P-15.01
60(1) Where, in the opinion of the chief, a member has:
(a) been convicted of an offence pursuant to:
(i) the Criminal Code (Canada), as amended from time to time;
(ii) any other Act of the Parliament of Canada; or
(iii) any Act;
that may render the member unsuitable for police service;
(b) conducted himself or herself in a manner that, despite remedial efforts, renders the member unsuitable for police service or establishes the member as incompetent for police service;
the chief may, on the grounds of the unsuitability or incompetence of the member:
(c) order dismissal of the member;
(d) order demotion of the member;
(e) order suspension of the member with or without pay for a period of up to 60 days;
(f) order a period of probation or close supervision of the member;
(g) order the member to undergo counselling, treatment or training;
(h) issue a reprimand to the member;
(i) make any order he or she deems fit; or
(j) do any combination of the things mentioned in clauses (c) to (i).
(2) Where the chief has made an order pursuant to subsection (1), the chief shall immediately give notice in writing to the member of the basis for that decision.
(3) Where a collective bargaining agreement provides a procedure for terminating the services of a member for reasons other than those provided in this Part, that procedure shall be used for terminating the services of a member for the reasons provided in the collective bargaining agreement.
61(1) Within 30 days after the day on which a member is given notice of a decision of a chief pursuant to section 60, the member may appeal that decision to a hearing officer.
66 Within 30 days after the day on which a member is informed of a decision pursuant to section 65, the member or the chief may apply to the commission for permission to appeal the decision pursuant to section 69.
69(1) A person entitled to apply to the commission for permission to appeal shall serve on the commission a notice of application for permission to appeal all or part of the decision to the commission.
. . .
(4) The commission shall grant permission to appeal where:
(a) the investigator seeks permission to appeal on the investigator’s own behalf or on behalf of a complainant;
(b) the decision affecting the member or chief seeking an appeal imposes:
(i) dismissal; or
(ii) a demotion in rank;
(c) after considering:
(i) the notice of application;
(ii) the record; and
(iii) any other information the commission considers necessary;
the commission has concerns regarding the thoroughness or fairness of the investigation or hearing;
(d) in the opinion of the commission, the disciplinary action imposed may not be comparable to disciplinary action imposed with respect to similar proceedings; or
(e) there are any other grounds that the commission considers appropriate.
The Trade Union Act, R.S.S. 1978, c. T‑17
25(1) All differences between the parties to a collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement.
V. The Collective Agreement
20 ARTICLE 8 – GRIEVANCES AND DISPUTES
The provisions of this Article are not intended to be utilized in any circumstances where the provisions of the Saskatchewan Police Act and Regulations thereunder apply.
. . .
ARTICLE 9 – TERMINATION OF SERVICE
(a) (i) Notwithstanding the times at which or the manner in which an employee is paid, every permanent employee shall be entitled, and subject to Article eight (8) hereof, to receive two (2) weeks’ written notice that his/her services are no longer required and, in turn, each employee shall be required to give two (2) weeks written notice of his/her intention to terminate his/her employment with the Board.
. . .
(b) Where, in the opinion of the Chief of Police, the conduct of a civilian employee is such as to warrant dismissal, the civilian employee shall not be dismissed but shall be suspended pending such dismissal and the suspension shall be confirmed, in writing. Immediately following such suspension, the Chief of Police shall notify the Association and the Board of Police Commissioners, outlining, in writing, the reasons for the suspension and pending dismissal. The Association shall, upon receipt of such notice, have the right to appeal to the Board against the suspension and pending dismissal, in accordance with the procedures set forth in Article (8) of this Agreement.
VI. Analysis
21 The issue in this appeal is whether the dispute between Sgt. Shotton and the Employer arises out of the collective agreement. If it does, the arbitrator had jurisdiction to hear and decide the dispute, and was incorrect in refusing to do so. This Court’s decision in Weber, supra, provides the test for determining this question.
22 In Weber, this Court was asked to determine when employees and employers are precluded from resolving their disputes in the courts by a legislative scheme providing for binding arbitration of all disputes relating to their collective agreement. McLachlin J., for the majority of the Court, accepted the exclusive jurisdiction model for determining the appropriate forum for resolving a dispute that arises in an employment context. Pursuant to the exclusive jurisdiction model, if a difference between the parties arises from the interpretation, application, administration or violation of their collective agreement, the claimant must proceed by arbitration, absent a mutually agreed settlement. No other forum has the power to entertain an action in respect of that dispute: see Weber, at paras. 50-54.
23 In accepting the exclusive jurisdiction model, McLachlin J. rejected the concurrent model, which stated that where an action is recognized by the common law or by statute, it may be heard by a court, notwithstanding that it arises in the labour relations context. Pursuant to this model, the collective agreement cannot deprive a court of its traditional jurisdiction. McLachlin J. also rejected the model of overlapping jurisdiction. This model envisions that courts can retain jurisdiction over those issues which go beyond the traditional subject matter of labour law, notwithstanding that the facts of the dispute arise out of the collective agreement. The rationale for rejecting these two models was expressed by Estey J., for the Court, in St. Anne Nackawic, supra, at pp. 718-19, and adopted by McLachlin J. in Weber, supra, at para. 41, as follows:
The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. . . . The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.
Therefore, in determining whether an adjudicative body has jurisdiction to hear a dispute, a decision-maker must adhere to the intention of the legislature as set out in the legislative scheme, or schemes, governing the parties.
24 While McLachlin J. embraced the exclusive jurisdiction model, she emphasized that the existence of an employment relationship, per se, does not grant an arbitrator the jurisdiction to hear or decide a dispute. Only those disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: see Weber, at para. 54.
25 To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, supra, at para. 43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide: see, e.g., Weber, at para. 54; New Brunswick v. O’Leary, supra, at para. 6.
26 Before proceeding to an analysis of the ambit of the collective agreement, it is important to recognize that in Weber this Court was asked to choose between arbitration and the courts as the two possible forums for hearing the dispute. In the case at bar, The Police Act and Regulations form an intervening statutory regime which also governs the relationship between the parties. As I have stated above, the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature. The question, therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act and Regulations. If neither the arbitrator, nor the Commission have jurisdiction to hear the dispute, a court would possess residual jurisdiction to resolve the dispute. I agree with Vancise J.A. that the approach described in Weber applies when it is necessary to decide which of the two competing statutory regimes should govern a dispute.
27 Section 25(1) of The Trade Union Act requires that all differences between the parties to a collective agreement regarding its meaning, application or alleged violation are to be settled by arbitration. On the other hand, Article 8 of the collective agreement emphasizes that those disputes that fall within the ambit of The Police Act and Regulations are not arbitrable. The task, therefore, is to determine whether the essential character of the dispute between Sgt. Shotton and the appellant falls within the ambit of the collective agreement, or whether it falls within the statutory scheme set out in The Police Act and Regulations.
28 The Union contends that the essential character of the dispute in the case at bar is not disciplinary. It contends that the dispute is one in which an officer is alleging that his resignation was secured from him under duress, in circumstances in which he was not capable of exercising proper judgment. It contends that the issue in this case is properly characterized as a dispute between the parties over the validity of a resignation. Resignation is a matter that can only arise out of the employment relationship. The Union finds support for this contention in Article 9 of the collective agreement, which provides for notice in the event that either an employee or the employer terminates the employment relationship.
29 With respect, I disagree with the Union’s interpretation of the essential character of the dispute in this case. To determine the essential character of the dispute, we must examine the factual context in which it arose, not its legal characterization. I agree with Vancise J.A. that, in light of the agreed statement of facts, this dispute clearly centres on discipline. The dispute began when Sgt. Shotton was advised that he would be charged with discreditable conduct pursuant to the Regulations. He was also told that the Chief of Police intended to initiate disciplinary proceedings with a view to dismissal. Some time later, Sgt. Shotton was informed by the Chief of Police that discipline orders would be signed if notices of formal discipline proceedings were successful. It was in this factual context that Sgt. Shotton was given the option of resigning rather than being disciplined. I agree with Vancise J.A. that the informal resolution of this disciplinary matter did not change its essential character.
30 I turn now to the collective agreement to determine whether the dispute falls within the ambit of its provisions. In determining whether the dispute falls within the ambit of the collective agreement, we must bear in mind that the legislature intended that the members of the Regina Police Force be governed by two separate schemes, the collective agreement and The Police Act and Regulations. In determining whether the dispute is arbitrable, we cannot interpret the collective agreement in a manner that would offend the legislative scheme set out in The Police Act and Regulations. The provisions of the collective agreement, therefore, must be interpreted in light of the scheme set out in The Police Act and Regulations. This is recognized in Article 8 of the collective agreement itself, which emphasizes that the collective agreement is not intended to be utilized in any circumstances where the provisions of The Police Act and Regulations apply. Article 9 of the collective agreement deals with termination, but provides only for the notice requirements for dismissal or retirement of permanent employees, dismissal of civilian employees, and notice requirements in the event that the entire force be replaced. The collective agreement does not govern dismissal for cause. In addition, there are no provisions in the collective agreement which provide for the investigation or adjudication of disciplinary matters involving members of the police force.
31 As Vancise J.A. outlined extensively in his dissent, both The Police Act and the Regulations specifically address the procedural issues at the investigative, adjudicative and appeal stages of a disciplinary process. The detailed provisions in the legislative scheme governing disciplinary matters are a clear indication that the legislature intended to provide a complete code within The Police Act and Regulations for the resolution of disciplinary matters involving members of the police force. This is reflective of a well-founded public policy that police boards shall have the exclusive responsibility for maintaining an efficient police force in the community. The ability to discipline members of the force is integral to this role. Accordingly, no discretion exists to select another legal mechanism, such as arbitration, to proceed against a police officer in respect of a disciplinary matter: see, e.g., Re Proctor and Sarnia Board of Commissioners of Police (1979), 99 D.L.R. (3d) 356 (Ont. C.A.), at p. 371 (per Wilson J.A. in dissent), majority reversed, [1980] 2 S.C.R. 727; P. Ceyssens, Legal Aspects of Policing (loose-leaf), at p. 5-2. Generally, when both parties agree that it is appropriate, a resignation is an acceptable means of resolving a disciplinary dispute. However, where a mutually agreed settlement is impossible, both parties to the dispute must resort to the disciplinary procedures provided under the collective agreement and/or the legislation governing their labour relationship. These procedures are meant to be all-inclusive in order to ensure certainty and fairness when the parties cannot reach a negotiated agreement.
32 Having examined the ambit of the collective agreement, and of The Police Act and Regulations, it is clear that the dispute between Sgt. Shotton and the Employer did not arise, either explicitly or inferentially, from the interpretation, application, administration or violation of the collective agreement. The essential character of the dispute was disciplinary, and the legislature intended for such disputes to fall within the ambit of The Police Act and Regulations. As a result, I agree with Vancise J.A. that the arbitrator did not have jurisdiction to hear and decide this matter.
33 Jackson J.A., for the majority of the Court of Appeal, found that the dispute in the case at bar must fall within the ambit of the collective agreement, because Sgt. Shotton had no means of complaining under The Police Act. In her view, the Chief of Police did not make an order for Sgt. Shotton’s dismissal, nor did he give written reasons for his decision to Sgt. Shotton. In her opinion, pursuant to ss. 60 and 61 of The Police Act, these are preconditions to an appeal before a hearing officer, and then the Commission. While it is not necessary to decide the issue in this appeal, with respect I disagree with her interpretation of The Police Act in the context of this dispute.
34 The underlying rationale for the approach to determining jurisdiction set out in Weber, supra, was based, in part, on the recognition that it would do violence to a comprehensive statutory scheme, designed to govern all aspects of the relationship between parties in a labour relations setting, to allow disputes to be heard in a forum other than that specified in the scheme: see, e.g., St. Anne Nackawic, supra, at p. 721; Weber, at para. 46. Consistent with this rationale, McLachlin J. advocated a more liberal interpretation of the scheme governing the relationship between the parties, emphasizing that a dispute could arise either expressly or inferentially from that scheme. While in Weber the statutory scheme in issue was the Labour Relations Act, R.S.O. 1990, c. L.2, in my view the same rationale applies in the case at bar. Here, the legislature has shown its intention to have all matters relating to discipline governed by The Police Act and Regulations. It has attempted to provide a comprehensive scheme for both the investigation and adjudication of such disputes. As a result, we must avoid formalistic interpretations of the provisions that would deny the Commission jurisdiction where it was clearly the intention of the legislature that the Commission hear the dispute.
35 In Weber, McLachlin J. emphasized that disputes which either expressly or inferentially arise from the collective agreement should be heard by an arbitrator. As a result, an arbitrator may seize jurisdiction of a dispute even when the factual context of that dispute extends beyond what was expressly provided for in the collective agreement, to include what is inferentially provided. It is whether the subject matter of the dispute expressly or inferentially is governed by the collective agreement that is determinative. As I have stated above, this approach applies equally in determining whether the Commission has jurisdiction to hear the dispute in the case at bar. Therefore, even if The Police Act and Regulations do not expressly provide for the type of disciplinary action that was taken in the case at bar, the action may still arise inferentially from the disciplinary scheme which the legislature has provided.
36 Upon examining ss. 60, 61, 66 and 69 of The Police Act, it is clear that the legislature intended that hearing officers and, if necessary, the Commission, would hear all appeals arising from the dismissal of members of the police force. In my view, the fact that a member may not be subject to an order for dismissal is not sufficient to deprive the Commission of this jurisdiction. In addition, the fact that the Chief of Police may not have followed the procedural requirement that he provide written reasons for his decision is not sufficient to deprive the Commission of jurisdiction. The essential character of the dispute remained a disciplinary one, even if the Chief of Police did not follow the specific scheme in imposing a punishment. While it is not necessary in this case to decide whether the actions of the Chief of Police in refusing to accept Sgt. Shotton’s withdrawal of his resignation amounted to a dismissal, The Police Act must be interpreted liberally, to ensure that all forms of dismissal, including constructive dismissal, may be appealed to the adjudicative body designated by the legislature. In Weber, supra, at para. 73, McLachlin J. summarized the conduct of the employer, as follows:
Hydro’s alleged actions were directly related to a process which is expressly subject to the grievance procedure. While aspects of the alleged conduct may arguably have extended beyond what the parties contemplated, this does not alter the essential character of the conduct.
In my view, in this case the Chief of Police’s actions were directly related to the discipline procedures in The Police Act.
37 As the arbitrator noted in her decision, the Commission has already entertained jurisdiction to determine the propriety of disciplinary actions which failed to conform with the procedural requirements for discipline or dismissal required by the legislative scheme. In Mitchell v. Board of Police Commissioners of the City of Moose Jaw, a decision of the Commission rendered on August 26, 1992, the Commission was asked to grant permission to appeal the dismissal of a chief of police. The employer had dismissed the Chief of Police without any reasons. The employer argued that he had not been dismissed, but that he had been terminated in accordance with an employment contract, and thus that there was no right of appeal before the Commission. The Commission found that, unless the legislation compelled a contrary conclusion, a hearing was required in every situation where a police officer could be dismissed. It thus concluded that it had the jurisdiction to determine the dispute.
38 In my view, the Commission has the power to determine its jurisdiction in the case at bar. Should Sgt. Shotton apply for an appeal, it is my view that pursuant to a liberal interpretation of ss. 60 and 61 of The Police Act, which is consistent with the approach set out in Weber, supra, the Commission has jurisdiction to hear his dispute. It is clear that the dispute in this case was disciplinary. The Commission could therefore determine that the informal resolution of the disciplinary matter amounted to a constructive dismissal. In my view, while the legislation does not expressly provide for this type of disciplinary action, it does arise impliedly from the statutory scheme. There is a well-founded public policy reflected in the comprehensive legislative scheme, namely that police boards shall have the exclusive responsibility for maintaining an efficient police force in the community. It is consistent with this well-founded public policy that the Commission hear and decide those disciplinary disputes which expressly or impliedly arise from the statutory scheme.
39 To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature.
40 The sole issue in this appeal is whether the arbitrator had the jurisdiction to hear and decide the dispute between Sgt. Shotton and the Employer. In my view, the arbitrator was correct in deciding that she did not have the jurisdiction to hear this dispute. The majority of the Court of Appeal erred in reversing that decision.
41 I would therefore allow the appeal accordingly, with costs throughout.
Appeal allowed with costs.
Solicitor for the appellant: The City Solicitor’s Office, Regina.
Solicitors for the respondents: Wilson Rasmussen, Regina.