



COURT OF APPEAL FOR ONTARIO

CITATION: George v. Anishinabek
    (Police Service), 2014 ONCA 581

DATE:  20140815

DOCKET: C57883

Doherty, Cronk and Rouleau JJ.A.

BETWEEN

Derek George

Respondent

and

Police Governing Authority  Anishinabek Police
    Service

Appellant

and

Chief John Syrette 
    Anishinabek Police Service

Appellant

David G. Cowling and Alex Sinclair, for the appellants

Leo A. Kinahan, for the respondent

Heard: April 23, 2014

On appeal from the order of the Divisional Court (Justices
    Anne M. Molloy, Ian V. B. Nordheimer and Barbara A. Conway), dated March 6,
    2013, with reasons reported at 2013 ONSC 1417.

Doherty J.A.:


I



Overview

[1]

The appellants appeal to this court pursuant to leave granted on October
    30, 2013.

[2]

The respondent, Derek George, a constable employed by the appellant,
    Anishinabek Police Service (APS), brought an application for judicial review
    in the Divisional Court.  He sought an order quashing a decision of the Police
    Governing Authority (PGA) extending the time for service upon Mr. George of a
    notice of a discipline hearing into allegations of discreditable conduct made
    against Mr. George by his chief of police.

[3]

Mr. George was successful in the Divisional Court.  That court held that
    the failure to give him notice of the application to extend time for the
    service of the notice breached the applicable standards of procedural
    fairness.  The court quashed the order granting the extension and directed a
    new hearing before different members of the PGA.  The court also ordered that
    Mr. George be paid his salary for the period during which he had been suspended
    without pay.

[4]

On appeal, the appellants contend that the Divisional Court had no
    jurisdiction to hear the application for judicial review.  They argue, relying
    on
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929, and its progeny, that
    the dispute over Mr. Georges entitlement to notice of the application to
    extend time for service of notice of the discipline proceedings is a dispute relating
    to discipline, a matter squarely within the ambit of the collective agreement
    between APS and Mr. Georges union.  The appellants contend that only an arbitrator
    appointed under the terms of the collective agreement has jurisdiction to decide
    whether Mr. George was entitled to notice.

[5]

The appellants acknowledge that the Divisional Court cannot be faulted
    for assuming jurisdiction as the appellants did not raise the jurisdictional
    argument in the Divisional Court.  That argument was made for the first time on
    the application for leave to appeal to this court.

[6]

The appellants also submit, assuming the Divisional Court had
    jurisdiction, that it erred both in finding procedural unfairness and awarding
    what the appellants characterize as damages for the alleged breach.

[7]

Counsel for Mr. George submits that this court should not hear the
    jurisdictional argument because it was not raised in the Divisional Court.  He
    further submits that the jurisdictional argument fails as the order granting
    the extension of time to serve Mr. George with the notice of the discipline
    hearing was not arbitrable under the terms of the collective agreement and was,
    therefore, properly subject to judicial review.  On the merits, counsel argues that
    the Divisional Court was correct in holding that the respondent was denied
    procedural fairness when he was not given notice and that the remedial powers
    on the judicial review application extended to an order requiring the APS to
    pay Mr. George his salary for the time period during which he was improperly suspended
    without pay.

[8]

Although an appellate court is understandably reluctant to consider an
    issue not raised in the court below, I would address the merits of the appellants
    jurisdictional argument.  I would do so for three reasons.  First, it is
    potentially determinative of the appeal.  Second, apart from the collective
    bargaining agreement itself, the terms of which are not in dispute, the
    jurisdictional argument can be fully considered without adding anything to the
    record that was before the Divisional Court.  This court is not being asked to
    address a new issue on a record that does not speak to that issue.  Nor is this
    court being asked to augment the existing record with untested contentious
    evidence relating to the new issue.  Third, addressing the merits of the
    jurisdictional issue for the first time in this court does not prejudice Mr.
    George in any manner that cannot be properly addressed by an appropriate cost
    order.

[9]

As to the merits of the jurisdictional argument, I would hold that the
    Divisional Court had no jurisdiction to consider the issue raised on Mr.
    Georges judicial review application.  Under the authority of
Weber
,
    an arbitrator appointed under the collective agreement had exclusive
    jurisdiction to determine whether Mr. George was entitled, as a matter of
    procedural fairness, to notice of the application for the extension of time to
    bring discipline proceedings against him.  I would allow the appeal on that
    ground alone and would not address the other issues.


II



The employer-employee relationship

[10]

The
    resolution of the jurisdictional argument requires an understanding of the employer-employee
    relationship between Mr. George and the APS, particularly as it concerns
    discipline-related matters.  That relationship is forged by the combination of
    a collective agreement, the APS
Code of Conduct and Professionalism
(the 
Code
) and applicable provincial and federal legislation.

[11]

The
    APS is an independent Aboriginal police service created in 1992 by a tripartite
    agreement among the federal and provincial governments and several First
    Nations in Ontario.  The APS mandate includes the provision of effective, efficient
    and culturally-sensitive police services within APS territories.  The tripartite
    agreement provides for the creation of the PGA.  Each of the First Nations
    signatories to the agreement is represented on the PGA.  The PGA is responsible
    for administering the APS and is given various responsibilities under Article 5
    of the tripartite agreement, including the responsibility to:

maintain an APS Code of Conduct to deal with discipline matters
    for officers and civilian staff

[12]

Mr.
    George has been employed as a constable by APS since 1995. Constables employed
    by APS are not police officers within the definition in the
Police Services
    Act
, R.S.O. 1990, c. P.15, s. 2(1), although they are appointed as First
    Nations Constables with authority to perform specified duties:  s. 54(1). 
    Constables employed by the APS have the powers of a police officer when
    performing those specific duties:
s. 54(3). 
    The disciplinary procedures set out in Part V of the
Police
    Services Act
, and applicable to police
    officers, do not apply to
constables employed by the APS.

[13]

The
    PGA is a party to a collective agreement with the Public Service Alliance of
    Canada (the union).  Article 2 of that agreement makes the union the
    exclusive bargaining agent with respect to all matters involving employees of
    the APS, subject to the exceptions identified in Article 2.  Mr. George as a
    constable is an employee for the purpose of the collective agreement and is
    part of the bargaining unit.

[14]

Article
    4 of the collective agreement, the management rights provision, recognizes
    that it is the exclusive function of the PGA [t]o maintain order, discipline
    and efficiency.  Article 4.02 reads:

The Police Governing Authority maintains the right to
    discipline its employees for just cause, following the principles of progressive
    discipline.  A claim by an employee that he/she has been disciplined without
    just cause may be the subject of a grievance in accordance with the grievance
    procedure outlined in this Agreement.

[15]

The
    grievance procedure referred to in Article 4.02 is detailed in Article 54 of
    the collective agreement.  Article 54.01 defines grievance:

For the purpose of this Agreement, a grievance or complaint is
    defined as a difference arising either between an employee and the Police
    Governing Authority or between the parties hereto relating to the
    interpretation, application, administration or alleged violation of this Agreement

[16]

Article
    54 goes on to describe a two-step procedure applicable to individual
    grievances.  The first step involves the employees immediate supervisor and
    the second involves the police chief.  Article 54.15 provides that if the
    police chief renders a decision that is unsatisfactory to the employee, the
    employee may refer the matter to arbitration.

[17]

The
    collective agreement is governed by the provisions of the
Canada Labour
    Code
, R.S.C. 1985, c. L.2.  Section 57(1) requires that parties to a
    collective agreement resolve disputes concerning the application,
    interpretation, administration or alleged contravention of the agreement by
    arbitration.  Section 58(1) contains a privative clause declaring that every
    order or decision of the arbitrator is final and shall not be questioned or
    reviewed in any court.

[18]

The
    PGA policy governing the disciplining of employees, including constables, is
    found in the
Code
.  The
Code
defines misconduct for the
    purposes of discipline and establishes three procedures for addressing discipline-related
    complaints.  Of the three, a formal discipline hearing before a person
    designated by the chief of police is reserved for more serious allegations.

[19]

An
    employee who is found to have engaged in misconduct is subject to various
    penalties under the
Code
,
including dismissal, demotion and suspension.  The discipline decision made at
    the formal discipline hearing is subject to automatic review by the discipline
    committee of the PGA.  If the employee is dissatisfied with the decision of the
    discipline committee, he or she may request a further appeal before the PGA as
    a whole.  The PGA may or may not entertain that further appeal.

[20]

Under
    the
Code
, the employee who is the subject of the discipline proceedings
    is entitled to notice of the formal hearing.  That notice must be served within
    six months of when the police or the PGA became aware of the relevant facts. 
    The PGA can extend the six-month period for an unspecified further time if
    satisfied that it was reasonable under the circumstances to delay serving the
    notice.  An extension can be granted even after the expiry of the six-month
    time period.

[21]

The
    terms of the
Code
referable to discipline procedures and the
    provisions of the collective agreement referable to disciplinary decisions must
    be read together and as a whole:  see
McDonald v. Anishinabek Police
    Service
(2006), 83 O.R. (3d) 132 (Div. Ct.), at para. 36;
Anishinabek
    Police Service v. Public Service Alliance of Canada
, 2012 ONSC 4583, [2012]
    O.J. No. 3824 (Div. Ct.), at paras. 31-33 (
McCue
).  Disciplinary
    proceedings can potentially proceed through the following steps:

·

an allegation of misconduct is made against the employee and a
    notice of hearing is served (the
Code
);

·

a formal discipline hearing is held before a person appointed by
    the chief (the
Code
);

·

a disposition by that hearing officer is made (the
Code
);

·

the discipline committee of the PGA reviews the disposition made
    by the hearing officer (the
Code
);

·

the PGA may consider an appeal from the discipline committee (the
Code
);

·

the employee grieves the discipline decision to his or her
    immediate supervisor (article 54.06 of the collective agreement);

·

the employee further grieves to the police chief (article 54.07
    of the collective agreement); and

·

the employee goes to arbitration (article 54.15 of the collective
    agreement).


III



The proceedings against Mr.
    George

[22]

In July 2011, while Mr. George was on duty, he was allegedly involved in
    a physical altercation with his son.  His son suffered significant injuries.  Police
    Chief Syrette initiated an investigation into the events.  On July 28, 2011, he
    suspended Mr. George with pay and notified him of the ongoing criminal
    investigation into the altercation with his son.  The notice also stated:

The criminal allegations against you are serious in nature. 
    The investigation into these allegations clearly supports the commencement of
    proceedings under the
Anishinabek Police Service Code of Conduct and
    Professionalism
.

[23]

The
    criminal investigation was completed in October 2011 and Mr. George was advised
    that criminal charges would not be laid against him.  As of November 4, 2011,
    Mr. George, who remained on paid suspension, was allowed to perform
    administrative duties.

[24]

On
    September 20, 2012, more than a year after the investigation into Mr. Georges
    altercation with his son had commenced, Chief Syrette applied for and obtained
    permission from the PGA to serve Mr. George with a notice of a formal
    discipline hearing.  Mr. George did not receive notice of the Chiefs application
    and did not have an opportunity to convince the PGA that it should not exercise
    its powers to allow service of the notice more than six months after the Chief
    had commenced his investigation.

[25]

On
    September 21, 2012, Mr. George was served with a notice of hearing setting out
    the particulars of three allegations of misconduct under the
Code
.  He
    was also served with a notice of suspension without pay effective that day. 
    The discipline hearing did not take place.  Mr. George commenced a judicial
    review application challenging, among other things, the failure to give him
    notice of the application to extend the six-month limitation period.


IV



The application of
Weber

[26]

Workplace-related
    disputes involving an employer and employee may give rise to claims and
    potential proceedings under a collective agreement, labour relations statutes, human
    rights legislation, the common law and the
Charter
.  Those sources may
    provide access to various forums in which the same factual claims may be
    asserted.  Questions as to the appropriate forum inevitably arise.  In
Weber
,
    at paras. 50-51, 67, and again, in
Regina Police Assn. Inc. v. Regina
    (City) Board of Police Commissioners
, 2000 SCC 14, [2000] 1 S.C.R. 360, at
    paras. 22-25, the Supreme Court of Canada came down firmly in favour of the
    exclusive jurisdiction model.  Under that model, if controlling legislation
    gives jurisdiction over disputes that arise under a collective agreement to
    arbitrators appointed under that agreement or to a specific statutorily-created
    body, that entity has exclusive jurisdiction to determine all disputes arising
    from the collective agreement.
[1]


[27]

In
Weber
, s. 45(1) of the
Labour Relations Act
, R.S.O. 1990, c.
    L.2, gave arbitrators appointed under the collective agreement the authority to
    decide all questions arising from the interpretation, application,
    administration or alleged violation of the agreement.  Applying the exclusive
    jurisdiction model, McLachlin J. held that the language of s. 45(1) of the
Labour
    Relations Act
effectively removed disputes arising from the collective
    agreement from the jurisdiction of the courts.  Section 45(1) of the
Labour
    Relations Act
is for present purposes indistinguishable from s. 57(1) of
    the
Canada Labour Code
, the
    statute that applies to this collective agreement
.

[28]

A
    determination of whether a dispute arises out of a collective agreement for the
    purposes of the
Weber
analysis requires, first, a consideration of the
    nature of the dispute and, second, an examination of the ambit of the
    collective agreement.  This two-step inquiry is described in
Regina Police
    Assn.
, at para. 25:

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 the arbitrator to
    decide   [Emphasis added.]

[29]

The
    genesis of the dispute between Mr. George and the appellants lies in the alleged
    misconduct of Mr. George while on duty in July 2011 and the Chiefs investigation
    of that conduct with a view to commencing discipline proceedings. 
    Specifically, Mr. George takes issue with the fairness of the way in which the Chief
    applied for and obtained permission from the PGA to serve him with a notice of
    the discipline hearing beyond the six-month limitation period referred to in
    the
Code
.  Viewed in its factual context, the essential character of
    the dispute between Mr. George and the appellants can only be described as
    disciplinary in nature:  see
Regina Police Assn.
, at paras. 28-29.

[30]

The
    second component of the
Weber
analysis, the requirement that the
    dispute concern a subject matter covered by the collective agreement, is the
    ground upon which counsel for Mr. George takes his stand on the jurisdictional
    issue.  He submits that even if the dispute relates to discipline, the dispute
    concerns the proper procedure to be followed by the Chief and the PGA when
    implementing the discipline procedure described in the
Code
.  He argues
    that the discipline procedure described in the
Code
is different from,
    and preliminary to, any discipline procedure covered by the collective
    agreement.  Counsel distinguishes between disciplinary decisions and processes
    taken under the
Code
and those taken pursuant to the management rights
    clause in the collective agreement.  According to this argument, only the latter
    fall within the ambit of the collective agreement under the
Weber
analysis.

[31]

I
    cannot accept counsels bifurcated concept of discipline-related disputes. 
    Under the collective agreement, the union representing Mr. George has agreed
    that the PGA, as part of its management power, has the authority to discipline
    Mr. George for work-related conduct.  The PGA in turn has agreed that any
    disputes over discipline shall be subject to the grievance provisions in the
    collective agreement.

[32]

The
    union is not a party to the
Code
.  The PGA, as obliged by the terms of
    the tripartite agreement, has established the
Code
reflecting the
    policies and procedures it will follow in the exercise of its discipline
    powers.  However, the authority to discipline Mr. George for work-related
    misconduct lies in the collective agreement.  The terms of the
Code
are the means by which the PGA has chosen to exercise its rights under the collective
    agreement to maintain order, discipline and efficiency.  Steps taken by the PGA
    pursuant to the discipline-related policies and procedures in the
Code
are no less an exercise of management powers under the collective agreement
    than is the ultimate determination to discharge or otherwise discipline an
    employee at the end of the process.

[33]

Counsel
    for Mr. Georges attempt to distinguish between discipline-related proceedings
    under the
Code
and discipline-related proceedings under the collective
    agreement would significantly undermine the policy animating the choice of the
    exclusive jurisdiction model in
Weber
.  As McLachlin J. said, at para.
    46, in rejecting a concurrent jurisdiction model:

The final difficulty with the concurrent actions model is that
    it undercuts the purpose of the regime of exclusive arbitration which lies at
    the heart of all Canadian labour statutes.  It is important that disputes be
    resolved quickly and economically, with a minimum of disruption to the parties
    and the economy.  To permit concurrent court actions whenever it can be said that
    the cause of action stands independent of the collective agreement undermines
    this goal

[34]

In
    my view, allowing Mr. George to challenge, by way of judicial review, what are
    essentially interim rulings made in the course of his discipline proceedings, would
    have the same negative consequences as would the adoption of the concurrent
    jurisdiction model.  Judicial review of decisions made during the
Code
stage of the discipline process would potentially delay and fracture the
    hearing and resolution of discipline-related matters.  Placing all
    discipline-related matters within the exclusive jurisdiction of the arbitration
    process in the collective agreement would allow a single entity to oversee all
    complaints made by the employer or employee at the various stages of the discipline
    process.  The arbitrator, in exercising that authority, would be in a position
    to resolve disputes quickly and economically with a minimum of disruption to
    the parties and the economy.

[35]

Counsel
    for Mr. George referred to
McDonald
and
McCue
,
two
    decisions of the Divisional Court involving the APS and discipline-related
    disputes with constables employed by the APS.  He submits that these cases
    support his contention that there is a distinction between discipline-related
    matters under the
Code
, which are subject to judicial review, and discipline-related
    matters taken under the auspices of the collective agreement, which are subject
    to the grievance procedure in the collective agreement.

[36]

I
    agree that both cases are helpful in describing the employer-employee
    relationship between a constable and the APS.  I also agree that both cases
    recognize that the discipline-related process involves both procedures
    described in the
Code
and the grievance procedure provided for in the
    collective agreement.  However, neither case addresses the jurisdictional
    argument made by the appellants here.  There is no mention of
Weber
or the exclusive jurisdiction model analysis found
    in
Weber
in either
    case
.

[37]

In
McDonald
, a
    constable employed by the APS was dismissed for misconduct.  He commenced a
    judicial review application alleging procedural unfairness.  At the same time,
    he brought an application before the Canada Industrial Relations Board
    (Board) under the
Canada Labour Code
.  He proceeded before the Board first.

[38]

The Board dismissed the
    employees application holding that as there was no collective agreement in
    place when the employee was dismissed, the Board had no jurisdiction to hear
    the complaint:
McDonald
,
    at paras. 14-19.  Although the Boards decision was initially appealed, that
    appeal was abandoned.

[39]

The employee then
    proceeded with the judicial review application in the Divisional Court.  No one
    argued, understandably in light of the outcome before the Board, that
Weber
applied to oust the Divisional Courts jurisdiction
    on the judicial review application.  In the Divisional Court, the argument
    focused on whether the decision made by the employer under the auspices of the
Code
was the kind of decision that was challengeable by
    way of judicial review:
McDonald
, at paras. 38, 49, 55, 68-80.  That issue is very
    different from, and has no relevance to, the jurisdictional argument raised by
    the appellants in this case.

[40]

McCue
involved
    judicial review applications brought by the employer from arbitration awards
    made under the authority of the grievance provisions in the collective
    agreement.  The employer had taken discipline proceedings under the
Code
against an employee.  The adjudicator appointed
    under the
Code
imposed
    certain penalties.  The employee grieved those penalties under the terms of the
    collective agreement.  The employer argued before the arbitration boards that they
    had no jurisdiction to hear the grievances and were bound by the decisions
    reached by the adjudicator appointed under the
Code
.  The arbitration boards rejected this submission
    and the employer sought judicial review of those decisions.  The Divisional
    Court rejected the employers contention that the arbitration boards were bound
    by the findings or determinations made by the adjudicator appointed under the
Code
.

[41]

The exclusive
    jurisdiction analysis in
Weber
had no
relevance in
McCue
.  That case involved applications for judicial
    review from the decisions of two arbitration boards.
Weber
is not concerned with judicial review of
    arbitrators decisions, but rather with the selection of the appropriate forum
    in which to conduct the initial proceeding.

[42]

One passage from
McCue
does, however, offer some support for the
    appellants position on this appeal.  The court said, at para. 45:

APS adopted a code of
    conduct as it was required to do by the tripartite agreement.  APS also entered
    into a collective agreement with the Union that provides the right to arbitrate
    discipline and dismissal decisions. These separate provisions have to
    co-exist.  APS cannot avoid its contractual obligations under the collective
    agreement by reliance on the tripartite agreement.  The Union is not a party to
    the tripartite agreement, and unilateral action by the APS in entering into
    that agreement cannot oust the right of the Union to pursue a grievance under
    the collective agreement.

[43]

I
    think the above passage correctly describes the relationship between the
Code
and the collective agreement.  Once it is acknowledged that nothing in the
Code
can detract from the unions right to pursue a discipline-related grievance
    under the collective agreement, it follows applying the exclusive jurisdiction
    analysis in
Weber
that the forum identified in the collective
    agreement has exclusive jurisdiction to hear discipline-related complaints.


V



Conclusion

[44]

I
    would allow the appeal, set aside the order of the Divisional Court and quash
    the application for judicial review as brought without jurisdiction.  Mr.
    George must seek his remedies through the grievance process in the collective
    agreement.

[45]

Counsel
    for the appellants conceded that if the appellants were successful on the jurisdictional
    issue, the costs order made in the Divisional Court should stand in light of
    the appellants failure to raise the jurisdictional argument in that court.  I
    agree with that concession.  Counsel did submit that the appellants should have
    their costs in this court.  Again, I agree with that submission.  However, in
    my view, in all the circumstances, those costs should be modest.  I would award
    costs in the amount of $5,000, inclusive of disbursements and relevant taxes. 
    Those costs can be set off against the costs awarded to Mr. George in the
    Divisional Court, assuming, of course, that the appellants have not paid those
    costs to Mr. George.

RELEASED: DD  AUG 15 2014

Doherty J.A.

I agree E.A. Cronk
    J.A.

I agree Paul Rouleau
    J.A.





[1]

Weber
recognizes an exception to the arbitrators exclusive
    jurisdiction where the remedy sought cannot be ordered by an arbitrator.  In
    those cases, the court has discretion to hear the dispute and grant the remedy:
     see
Weber
, at paras. 57, 67.  The applicability of the remedy
    exception generated the difference between the majority and minority in
Weber
concerning jurisdiction over the
Charter
claim
.  The remedy exception is not
    engaged here.


