



COURT OF APPEAL FOR ONTARIO

CITATION: Rukavina v. Ottawa (Police
    Services Board), 2020 ONCA 533

DATE: 20200826

DOCKET: C67247

Watt, Trotter and Fairburn JJ.A.

BETWEEN

Martin Rukavina, Heather Rukavina, Joshua Rukavina, and Mitchell

Rukavina and Benjamin Rukavina by his Litigation Guardian

Heather
    Rukavina

Plaintiffs (Appellants)

and

Ottawa Police Services Board, Charles Bordeleau, Jeffrey Kilcollins,

Michael Belanger, Larry McNally, Christopher Rheaume, John Doe, and

Jane Doe

Defendants (Respondents)

Jonathan Lisus, Christopher Grisdale,
    and
Zain Naqi
, for the appellants

Kirk Boggs and Naida Marotta, for the
    respondents

Heard: in writing

On appeal from the order of Justice Pierre
    E. Roger of the Superior Court of Justice, dated June 27, 2019.

Fairburn J.A.:

Overview

[1]

Martin Rukavina, a former police officer with
    the Ottawa Police Service, sued three police officers with whom he worked, a
    superior officer, the then Chief of Police, and the Ottawa Police Services
    Board. Although Mr. Rukavinas wife and children join him in the action and on
    appeal, I will refer to Mr. Rukavina as the appellant throughout these
    reasons.

[2]

A few months after the appellant was appointed
    to the position of Acting Staff Sergeant in charge of the tactical unit, he
    commanded a training exercise involving a hostage-taking scenario where an
    explosive device, referred to as a hydro cut, was used. The detonation created
    a fireball that resulted in injuries to paramedics and two police officers. Some
    of the injuries were serious in nature.

[3]

The Special Investigations Unit (SIU) was
    notified of the incident and an investigation ensued. Numerous interviews took
    place and, ultimately, the appellant was charged with criminal negligence
    causing bodily harm and breach of a legal duty to use reasonable care while having
    an explosive substance under his care and control: ss. 221 and 80 of the
Criminal
    Code
, R.S.C., 1985, c. C-46
.
    Crown counsel later stayed those charges because, contrary to what some of the
    respondents allegedly told the SIU investigators, the hydro cut had been operated
    in accordance with the long-standing practice of the Ottawa Police Service.

[4]

The appellant sued the respondents for, among
    other things, malicious prosecution and misfeasance in public office. He claimed
    that the respondents knowingly and maliciously conspired together to provide
    false information to the SIU and to suppress relevant information, all of which
    led to: (a) the criminal charges being laid; and (b) a delay in those charges
    being stayed by Crown counsel. The officers are said to have abused their
    positions as public officials when they deceived the SIU.

[5]

The respondents brought a motion under r. 21 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to dismiss the
    claim for want of jurisdiction.
[1]
The motion judge concluded that the essential character of the appellants
    claim was workplace centered and, therefore, it was governed under the exclusive
    jurisdiction of the collective agreement by which he was bound and the disciplinary
    regime under the
Police Services Act
,
    R.S.O. 1990, c. P.15

(
PSA
)
. Accordingly, the motion was granted
    and the claim was dismissed.

[6]

The issue on appeal is whether the motion judge
    erred in determining that the essential character of the appellants claim is
    one that is governed exclusively by the collective agreement and the
PSA
,
    thereby ousting the jurisdiction of the court.

[7]

For the reasons that follow, I would allow the
    appeal on the basis that the motion judge erred in how he arrived at the
    conclusion that this was a workplace centred action. In my view, the motion
    judge misconstrued the essential character of the claim
. When properly construed, the essential character of
    the claim falls outside the reach of the collective agreement
[2]
and the
PSA.

The Factual Backdrop on Appeal: Statement of
    Claim and Proposed Amended Statement of Claim

[8]

I start by addressing the factual underpinnings
    for the allegations said to support the appellants claim.

[9]

The appellant filed a draft amended statement of
    claim as an appendix to his factum in this court. He asks that in addition to allowing
    the appeal and reinstating the claim, this court also grant leave to amend the
    statement of claim in accordance with that draft. The appellant contends that
    this court should grant that remedy because the motion judge erred by failing
    to grant leave to amend and failing to provide reasons for refusing to do so. I
    disagree with the suggestion that the motion judge erred in this regard.

[10]

The materials before this court are not entirely
    clear. It appears, though, that the appellant did not file a cross-motion
    seeking leave to amend in the court below and did not ask to amend the existing
    claim as part of his response to the jurisdictional motion. The respondents
    submit that the amended claim has only been tendered for the first time on
    appeal.

[11]

In these circumstances, it is unfair to suggest
    that the motion judge erred by failing to grant leave to amend the claim or to
    provide reasons for refusing to do so. Quite simply, the motion judge cannot be
    faulted for failing to do something he was not asked to do.

[12]

At the same time, it is important to recall that
    leave to amend a claim should only be denied in the clearest of cases:
Tran
    v. University of Western Ontario
, 2015 ONCA 295, at para. 26;
Adelaide
    Capital Corp. v. Toronto Dominion Bank
, 2007 ONCA 456, at para. 6. The
    draft amendments placed before this court are the kinds of amendments that
    simply amplify and expand upon the themes that are already in the claim and
    flow directly from the pre-existing narrative.

[13]

Indeed, I do not understand the respondents to
    be saying otherwise. The respondents acknowledge that the content of the
    proposed amendments placed before this court were generally reflected in the
    appellants factum and oral submissions before the motion judge. The
    respondents also acknowledge that the motion judge considered the particulars that
    are now included in the amended statement of claim, but dismissed the claim in
    any event. As the motion judge said:

[E]ven if the plaintiffs had pleaded all of
    what they allege in their factum and during submissions, all of this would be
    subject to allegations of misconduct against the officers involved and thereby
    subject to the
PSA
and applicable [collective agreement].

[14]

Therefore, the respondents position on appeal
    does not turn on the specific words pleaded in or omitted from the original
    statement of claim. Rather, their position turns on their central argument that
    even a perfect pleading would not change the result in this case.

[15]

Accordingly, I will follow the motion judges
    lead on taking the appellants position at its highest, as reflected in the
    original statement of claim, his factum and submissions in that court, as well
    as in the proposed amended statement of claim.

The General Background and Allegations

[16]

The facts set out in this decision are based on
    the appellants pleadings. The Ottawa Police Tactical Unit was conducting a
    training exercise at an abandoned house in Kanata on June 14, 2014.

[17]

The appellant was the tactical commander on
    scene when the hydro cut device exploded and caused the injuries. The hydro cut
    device had been filled with windshield washer fluid.

[18]

As required under the
PSA

and
    its
regulations
,
the SIU
    was notified about the incident a few days after it occurred:
PSA
, s. 113(5);
Conduct and Duties of Police Officers Respecting Investigations by the
    Special Investigations Unit
, O. Reg. 267/10, s. 3(1). A criminal
    investigation was launched.

[19]

While the investigation was ongoing, three of
    the respondents who worked in the tactical unit sent a non-confidence letter to
    the appellant, which was then delivered to the appellants superior officer. The
    letter purported to speak on behalf of the entire tactical unit. That letter
    made numerous allegedly false allegations about the appellant, including the
    suggestion that he was unfit to command the tactical unit. The letter failed to
    prompt the appellants removal as Acting Staff Sergeant.

[20]

The respondents in the tactical unit are alleged
    to have then put in place a campaign to improperly influence the SIU investigation
    by knowingly providing false information to investigators and by releasing
    confidential information to the media so that it could be published in the
    local and national news. The media repeatedly reported upon the allegations.

[21]

In addition, the appellant claims that the
    respondent officers conspired together to knowingly provide false evidence to
    the investigators, including that: (a) the device causing the explosion had
    been filled with windshield washer fluid, when historically it had only been
    filled with water; (b) the Ottawa Police were trained only to fill the device
    with water; and (c) the use of windshield washer fluid was a departure from
    standard practice.

[22]

These false allegations are said to have caused
    the SIU investigators to believe that the appellant was criminally responsible
    for the explosion that resulted in bodily harm. He was charged on July 23,
    2015.

[23]

After charges were laid, the appellants
    superior officers  who are also respondents to this matter  are said to have
    acted in a way that continued to mislead the SIU regarding the Ottawa Police
    Services prior practices and training standards relating to the use of windshield
    washer fluid in the preparation of hydro cut devices.

[24]

Over a year after the appellant had been
    criminally charged, Crown counsel stayed the charges, accepting on the record
    that the Ottawa Police Service had a long-standing settled practice of using windshield
    washer fluid to fill hydro cut devices. The appellant claims that the Ontario
    Provincial Police were ultimately called in to investigate the matter for evidence
    manipulation and fraud. The appellants pleadings provide no information as to
    whether that investigation has come to an end and, if so, the conclusions that
    were reached.

The Decision to Dismiss the Action

[25]

The motion judge dismissed the action on the
    basis that its essential character is workplace centred and, therefore, falls
    within the ambit of the collective agreement and the
PSA
. As the
    motion judge put it:

The essential character of this dispute is
    workplace centred and arises entirely from [the appellants] employment with
    the Board, from workplace dynamics.



Here, the essential character is workplace
    centred; that tensions at work escalated to a systemic campaign orchestrated to
    cause the plaintiff damages, including that a false memo or false letter were
    provided to the SIU. However, the true nature of the dispute is expressly or
    implicitly contemplated by the [collective agreement] and the
Police Services
    Act
.

[26]

This court has previously found that employers
    reporting employees to the police, thereby triggering police investigations and
    criminal charges, are matters falling outside of workplace disputes:
Piko
    v. Hudsons Bay Co.
, 41 O.R. (3d) 729 (C.A.)
;
McNeil v. Brewers
    Retail Inc.
, 2008 ONCA 405, 66 C.C.E.L. (3d) 238. However, the motion
    judge concluded that those decisions could be distinguished from this case,
    arising as it does in a police setting
.


[27]

Ultimately, the motion judge concluded that the
    courts jurisdiction was ousted by both the collective agreement and the
PSA

and dismissed the claim.

Analysis

(i)

Overview

[28]

In my view, the motion judge erred in concluding
    that this was a workplace centred dispute that was governed solely by the
collective agreement and the
PSA
.
    The nature of the appellants claim involves conduct that fell outside the
    ambit of the collective agreement and the
PSA
. While the difficulties
    between the appellant and respondents may well have their genesis in the
    workplace, and they may have had disputes in the workplace, by the time that an
    independent police investigation was underway, this was no longer a workplace
    dispute. The alleged conduct that occurred after the involvement of the SIU did
    not fall within the scope of either the collective agreement or the
PSA
.
    Accordingly, the court has jurisdiction over the subject matter of the action.

(ii)

Police Cases Do Not Involve Exclusive
    Jurisdiction

[29]

The respondents defend the motion judges decision
    on the basis of what they describe as an exclusive jurisdiction model in
    police cases. They maintain that this court has made clear that disputes in
    the police context involving allegations of unfair treatment by the employer
    and misconduct by co-workers must be dealt with through a combination of
    grievances under collective agreements and discipline under the
PSA
.
Together, the respondents suggest that police collective agreements and the
PSA

form a complete code for determination of these matters. Accordingly,
    the respondents say that there is no concurrent jurisdiction in the courts to
    deal with these disputes.

[30]

While I accept that the combination of
    collective agreements and the
PSA

cover a wide array of
    disputes in the policing context, I do not accept the broad proposition that
    the courts jurisdiction is necessarily ousted just because the dispute
    involves the police.

[31]

When it comes to collective agreements, a mandatory
    arbitration clause  such as in this case  will generally confer exclusive
    jurisdiction on labour tribunals to deal with all disputes between the parties
    arising from the collective agreement:
Weber v. Ontario Hydro
, [1995]
    2 S.C.R. 929, at para. 67. There is no special police rule. Like all other
    cases, the question is whether the dispute is, in its essential character,
    one that arises either expressly or inferentially out of the collective
    agreement:
Weber
, at paras. 67-68.

[32]

The alleged facts underpinning the legal complaint,
    as opposed to its legal characterization, determine the disputes essential
    character. The scope of the collective agreement then determines whether the essential
    character  that is, the true nature of the dispute  is cloaked in its terms:
Weber
,
at paras. 49-52. Therefore, like all other contexts, to determine the
    essential character of a dispute within a policing context and whether it is
    covered by the collective agreement, the court first looks to the factual
    matrix within which the allegations rest:
Regina Police Assn. Inc. v.
    Regina (City) Board of Police Commissioners
, 2000 SCC 14, [2000] 1 S.C.R.
    360, at para. 29.

[33]

For the purposes of the
PSA
,
Part
    V governs complaints and disciplinary proceedings for police officers. As this
    court has previously noted, it addresses how complaints are made and investigated,
    the procedural mechanism by which complaints are resolved, the nature of
    hearings and appeals, and the range of outcomes available if misconduct is
    found:
Abbott v. Collins
(2003), 64 O.R. (3d) 789 (C.A.), at para. 17.

[34]

The respondents rely on numerous authorities in
    support of the proposition that this court has repeatedly acknowledged that
    the grievance and discipline scheme that applies to police officers in Ontario
    was intended to create a complete substantive and procedural code, leaving no
    gaps for residual jurisdiction in the courts. I do not read the authorities offered
    in the same way as the respondents.

[35]

There is no doubt that in the policing context, collective
    agreements and the
PSA

will generally operate together to keep
    police-related disputes out of the court, given their robust grievance and
    disciplinary regimes. Nevertheless, I see no support for the proposition that,
    as a matter of law, the courts jurisdiction is necessarily ousted for the purposes
    of any dispute that may involve police officers.

[36]

While the respondents point to numerous
    authorities said to support their sweeping proposition, I find that the authorities
    actually demonstrate the opposite. Those authorities do not approach the
    jurisdictional question by simply noting the application of a complete code
    in the policing context. Rather, the authorities demonstrate the need to
    consider the essential nature of the dispute and then reason to a
    jurisdictional conclusion. Although the conclusions reached in those
    authorities may well mirror the outcome the respondents desire in this case,
    the reasoning process must propel the decision toward that conclusion.

[37]

For instance, in
Abbott
, which is relied
    on by the respondents
,
this court concluded that the essential nature of
    the dispute was related to discipline including disguised discipline:
Abbott
,

at paras. 33, 9, 25. Accordingly, the collective agreement and the
PSA

covered that dispute. It is within that context that this court commented that
    the collective agreement and the
PSA

created a complete code
    relating to police
discipline
 and that no gap was left for the court
    (emphasis added):
Abbott
,
at paras. 4, 27, 29, 33.

[38]

I do not intend to review each authority relied on
    by the respondents in favour of the submission that there exists an exclusive
    jurisdiction model in police cases, which ousts the jurisdiction of the
    courts. However, I make reference to a few of those decisions to demonstrate
    that they all involve true workplace-centred disputes.

[39]

In
Heasman v. Durham Regional Police
    Services Board
,
204 O.A.C. 283 (C.A.),

two detectives were
    removed from the major crimes unit and charged with disciplinary offences under
    the
PSA
,
all arising from work they had done on a cold case.
    The officers sued, but the matter was considered disciplinary in nature and
    caught by the collective agreement and the
PSA
.

[40]

Similarly, in
Richards v. Catney
, 2005
    CanLII 8702 (Ont. S.C.), affd 206 O.A.C. 28 (C.A.),

another case relied
    on by the respondents, the plaintiff Staff Sergeant sued her employer, claiming
    she was denied a promotion and then transferred to a lesser position as
    retribution for a medical leave and that she was discriminated against on the
    basis of her sex. The claim was dismissed for want of jurisdiction because it
    was found to be about workplace discrimination and harassment. The court noted
    that [t]he overarching context for the pleaded employer mistreatment is
    discrimination on account of sex and disability:
Richards
,
at para.
    34. I agree with the appellant that this is the
sine qua non

of
    a workplace dispute.

[41]

In another case relied upon by the respondents,
DiNunzio v. City of Hamilton
, 2010 ONSC 3631,
    affd 2011 ONCA 65, leave to appeal refused, [2011] S.C.C.A. No. 110, a 9-1-1
    operator said that she was unfairly blamed for a stabbing incident. She sued
    her employer for, among other things, emotional distress. The court found want
    of jurisdiction, concluding that, in substance, her claim was a workplace
    centred one. In particular, the motion judge found that there was no
    allegation that the Board or its employees or agents took some action in respect
    of a third party outside of the workplace that caused [the plaintiff] harm:
DiNunzio
,
at para. 25.

[42]

These authorities do not support the respondents
    position that there is a rule that, in the police environment, the combination
    of collective agreements and the
PSA

create complete codes for
    adjudicating all claims, leaving no redress for the court. Rather, they reflect
    a reasoning process that looks to the essential character of the dispute and
    asks whether that dispute is covered by the respective collective agreement and
    the
PSA
.

[43]

As I will now explain, this case is not like the
    ones cited by the respondents. It is neither a labour relations dispute nor a
    disciplinary matter. At its core, it involves allegations that point to the
    improper influence of a criminal investigation that took place entirely outside
    of the workplace. In my view, the Superior Court is the only place where the
    appellants claim can be adjudicated.

(iii)

Misconstruing the Essential Character of the Claim for Purposes of
    the Collective Agreement

[44]

There is no dispute that the collective
    agreement in this case applies to all employees of the Ottawa Police Service. Under
    the collective agreement, the Board is granted the exclusive right to maintain
    order, discipline and efficiency and to hire, discharge, direct, classify,
    transfer, promote, demote or suspend or otherwise discipline any employee:
    Article 2.01. In doing so, the Board must treat all employees fairly and
    without discrimination: Article 2.02.

[45]

Article 24 of the collective agreement sets out
    the grievance procedure that applies when a difference of opinion arises
    between a member or the [police] Association or both, and the Board, as to the meaning
    or application of a provision of this [collective agreement]. Article 24(h)
    says that the grievance procedure may ultimately lead to arbitration that is final
    and binding on both parties to the [collective agreement] as well as upon the
    employee or employees involved in the dispute.

[46]

Whether this clause covers the appellants dispute
    must be answered with reference to the central nature of the dispute, the goal
    being to determine its essential character. As noted in
Regina Police Assn.
,
at para. 25, this requires looking to the facts surrounding the dispute
    between the parties, and not on the basis of how the legal issues may be
    framed. The ultimate goal is to determine whether, based on all of the alleged
    facts, the essential character of the dispute is covered by the collective
    agreement. In essence, does the dispute arise, explicitly or implicitly from
    the interpretation, application, administration or violation of the collective
    agreement:
Regina Police Assn.
, at para. 25.

[47]

In my view, the motion judge erred in failing to
    approach the matter in accordance with that legal framework. Although he stated
    the correct legal test, he ultimately erred by looking to the legal
    characterization of the dispute to define its essential character. This is an
    extricable legal error reviewable on the standard of correctness.

[48]

Rather than considering the facts underlying the
    allegations, the motion judge made the following broad statements about what he
    perceived to be the true nature of the dispute:

·

whether the [appellant] was treated unfairly by
    his fellow officers and suffered damages;

·

whether wrongful actions of fellow officers
    caused him damages; or

·

whether wrongful actions of fellow officers
    included a conspiracy, deceit, negligence and malicious prosecution that caused
    him damages.

[49]

None of these statements grapple with the
    alleged facts surrounding the dispute and whether they were impliedly or explicitly
    governed by the collective agreement. These statements are nothing more than general
    descriptions of the legal nature of the claim and the fact that damages were
    being sought.

[50]

The essential character of the claim rested,
    not in these broad legal characterizations, but in the facts alleged. That factual
    matrix involves the following allegations:

(a)

officers having knowingly and intentionally
    provided false and misleading information to investigators in the context of a
    serious criminal investigation resulting in serious criminal charges;

(b)

officers having knowingly and intentionally
    released false information to the media in an effort to pressure criminal investigators
    to lay charges in an ongoing criminal investigation; and

(c)

superior officers having knowingly and
    intentionally provided false and misleading information during the course of
    ongoing criminal proceedings that prolonged those proceedings.

[51]

These are not allegations of unfair workplace
    treatment. The factual matrix at play here is clearly distinguishable from the
    facts in
Abbott
and the other decisions relied on by the respondent.
    In
Abbott
, for instance, the parties agreed that the conduct at issue
    related to discipline or disguised discipline:
Abbott
, at paras. 6, 9,
    25. The court then examined the ambit of the collective agreement and the
PSA
,
    concluding that discipline was incorporated into the collective agreement as a
    management right. Accordingly, the collective agreement and the
PSA
form a complete code governing
all discipline
for the OPP. There is no
    gap which would give the Superior Court jurisdiction to hear the matter as a
    civil cause of action, the
essential nature of which matter is discipline
    including disguised discipline
 (emphasis added):
Abbott
, at para.
    33.

[52]

The facts relating to Mr. Rukavina are notably
    different. Mr. Rukavina is not alleging that he was unfairly disciplined by his
    employer. Rather, he is alleging that he was wrongfully charged with criminal
    offences after his fellow officers lied to the SIU and that his superior
    officers acted in a manner that continued to mislead the SIU. The allegations
    do not pertain to discipline. At their highest, these are allegations of
    criminal activity, knowingly and intentionally misleading a criminal
    investigation.

[53]

That being the essential character of the claim,
    the question became whether it fell within the exclusive jurisdiction of the
    collective agreement. It did not.

[54]

The motion judge erred when he rejected two
    prior decisions of this court, finding that by reporting employees to the
    police, the employer jettisoned the matters outside the catch frame of the
    collective agreement.

[55]

In
Piko
, the employer told the police
    about a suspected fraud by an employee. Criminal charges were laid and later
    withdrawn. The employee sued the employer for malicious prosecution. While the
    employer successfully sought to have the claim dismissed for want of jurisdiction,
    that decision was overturned on appeal, on the basis that the essential
    character of the claim was not covered by the collective agreement because the
    employer had gone outside the collective bargaining regime when it resorted to
    the criminal process:
Piko
, at para. 17.

[56]

In
McNeil
, the employer reported the
    employee to the police for allegedly defrauding the employer. While the
    employer had both inculpatory and exculpatory evidence in its possession, it
    only provided the inculpatory evidence to the police. The employee was
    convicted, which was later set aside on appeal on the basis that the employer
    had withheld the exculpatory evidence. Relying on
Piko
, this court found
    that this dispute did not arise from the employers application or administration
    of the collective agreement, but from one that centred on the employers resort
    to the criminal process:
McNeil
, at para. 37.

[57]

The motion judge attempted to distinguish
Piko

and
McNeil

from this case. He erred in doing so.

[58]

First, he found that, unlike
Piko
and
McNeil
,
    the dispute in this case arises out of a police environment. That is so, but for
    the reasons already given, it does not answer whether the essential nature of
    the claim is outside of the collective agreement.

[59]

Second, the motion judge found that, unlike
Piko

and
McNeil
,
the collective agreement in this case was
    quite broad and the appellant could proceed by grievance alleging that he was
    not treated fairly. Referring to the duty of fairness under the collective
    agreement does not assist in resolving whether the essential character of the
    claim falls within the collective agreement or not. Indeed,
McNeil

recognizes
    this fact.

[60]

The appellant employer in
McNeil

attempted
    to distinguish
Piko

on the basis that the collective agreement
    in
McNeil

contained a clause requiring the employer to treat
    employees in a fair, non-arbitrary and non-discriminatory manner. This court
    rejected that argument
,
reinforcing the idea that, although a collective
    agreement might impose a duty of fairness upon an employer, whether a dispute
    has to be arbitrated depends on its essential character: It is not enough that
    the subject matter of the criminal process and malicious prosecution action
    could conceivably be relevant in a workplace dispute:
McNeil
,
at
    para. 37. While the appellants claim may well raise fairness concerns, once
    the subject matter was taken to the criminal court, its essential character was
    no longer a labour relations dispute.

[61]

Third, the motion judge relied on the fact that,
    unlike
Piko
and
McNeil
, the police employer in this case did
    not voluntarily instigate the criminal investigation; instead, there was an
    obligation under the
PSA
to report the matter to the SIU and the
    respondents were under an obligation to cooperate in that investigation. Respectfully,
    this is a distinction without a difference.

[62]

Under s. 3(1) of the
Conduct and Duties of
    Police Officers Respecting Investigations by the Special Investigations Unit
regulations
,
a chief of police is
    required to notify the SIU immediately of an incident involving one or more of
    his or her police officers that may reasonably be considered to fall within the
    investigative mandate of the SIU, as set out in subsection 113(5) of the
[
PSA
]

. Section 113(5) of the
PSA
grants the
    director of the SIU the ability to cause investigations to be conducted into
    the circumstances of serious injuries and deaths that may have resulted from
    criminal offences committed by police officers. Therefore, the parties do not
    dispute the fact that the SIU had to be notified of the incident at the root of
    this case, particularly given that it resulted in serious injuries. Nor do
    they dispute that the officers had to cooperate in that investigation:
PSA
,
    s. 113(9).

[63]

The essential character of this claim, though,
    does not rest on the fact that the employer reported the matter to the SIU or
    the fact that the respondents cooperated in the context of the investigation.
    The core of this claim rests on allegations that the respondents allegedly
    misled a criminal investigation and put unwarranted pressure on that
    investigation, all resulting in a wrongful, malicious criminal prosecution.

[64]

While it may be that the very genesis of the
    dispute in this matter was workplace centred, taking the claim at its highest, once
    the SIU was involved, this was a matter taking place completely outside of the
    workplace. Indeed, the whole point of the SIU is to create an independent
    policing agency that exists to police the police. As noted in
Schaeffer v.
    Woods
,
2013 SCC 71, [2013] 3 S.C.R. 1053, at para. 3, the SIU
    plays a vital role in ensuring our society remains fair and just and that
    everyone is treated equally before and under the law. Later in the
Woods
decision, at para. 44, the court reinforced this point: In establishing the
    SIU, the legislature intended to create an independent and transparent
    investigative body for the purpose of maintaining public confidence in the
    police and the justice system as a whole.

[65]

There should be no mistake about what the SIU
    investigation was about. It was not a workplace-related matter. Indeed, it was
    the antithesis of a workplace-related matter. It was an independent criminal
    investigation that the appellant alleges resulted in serious criminal charges
    because the criminal investigators were intentionally misled.

[66]

In my view, it was an error to focus so heavily on
Piko

and
McNeil

in an effort to distinguish
    them. While the motion judge was right that there are some distinguishing
    features between this case and those, they are features that do not impact the
    result. Like
Piko

and
McNeil
,
the essential
    nature of the claim in this case was not workplace related. Despite the breadth
    of the collective agreement, it simply did not extend to the alleged conduct of
    the respondents in the criminal investigation.

(iv)

The Error in Respect of the
Police Services Act

[67]

Article 24(a) of the collective agreement says
    that those matters of discipline and any other matters regulated by the
PSA

and its regulations shall be dealt with as prescribed by the
PSA
.

[68]

The motion judges reasons respecting the
    application of the
PSA

are thin. He noted that Part V of the
PSA

provides for an entire process to deal with complaints, disciplinary proceedings
    and allegations of misconduct. He also commented that if the claim related to
    alleged misconduct of fellow officers  an available remedy was a complaint
    under the disciplinary process provided by the [
PSA
]. In my view, even
    if the
PSA

were applicable in the context of the underlying
    complaint, it would not impact upon the courts jurisdiction.

[69]

The
PSA

sets up a comprehensive
    scheme for adjudicating allegations about misconduct by police officers. There
    are essentially two streams by which a complaint can proceed under Part V of
    the
Act
.

[70]

First, u
nder s. 58(1)
,
a member of the public may make a complaint about the conduct of a police
    officer, engaging the jurisdiction of the Office of the Independent Police
    Review Director (OIPRD). Section 58(2)(4) specifically excludes members and auxiliary
    members of police services from making complaints if that police force or
    another member of that police force is the subject of the complaint. Therefore,
    the appellant would be precluded from making a complaint to the OIPRD.

[71]

Second, under s. 76(1) of the
PSA
,
a
    police chief may make a complaint, causing an investigation into the officers
    conduct. This is an internal complaint also under Part V of the
PSA
.
    While the respondents acknowledge that the appellant is not a police chief and,
    therefore, cannot unilaterally initiate an internal complaint, they argue that,
    at a minimum, he could have asked his chief (also a respondent to the civil
    action) to initiate the complaint against the fellow officers.

[72]

I see no reason why, even if the
PSA

could be applied, it would preclude the appellants claim. This is unlike a
    collective agreement where the jurisdiction of the court is ousted by a
    complete arbitration clause. In contrast, there is nothing about a matter being
    dealt with under the
PSA

that would or should oust a private
    claim. Indeed, as noted in
Odhavji Estate v. Woodhouse
, 2003 SCC 69,
    [2003] 3 S.C.R. 263
,
at para. 31:

[T]he mere fact that the alleged misconduct
    also constitutes a breach of statute is insufficient to exempt the officer from
    civil liability. Just as a public officer who breaches a statute might be
    liable for negligence, so too might a public officer who breaches a statute be
    liable for misfeasance in a public office.

[73]

In this case, there was a criminal
    investigation. That investigation resulted in the appellant being charged with
    serious criminal offences. And the appellant stood charged, before a criminal court,
    for over a year before the Crown determined that a stay of proceedings was in
    order.

[74]

At a minimum, for the appellant, once the SIU
    became involved and a criminal investigation started, this became a private and
    not a workplace matter. While the
PSA

may well have been
    invoked if the chief had decided to make a complaint, the fact remains that
    like
Woodhouse
,
the private wrong would go without a remedy if
    the
PSA

precluded a private action.

[75]

Accordingly, his claim is not restricted by the
    disciplinary procedures in Part V of the
PSA
.

Conclusion

[76]

I would allow the appeal and restore the claim.
    I would dismiss the application for leave to issue the proposed amended
    statement of claim, an application made for the first time on appeal. The
    appellant may pursue that remedy elsewhere if he chooses to do so.

[77]

The appellant is entitled to costs of the appeal
    in the amount of $10,000, inclusive of disbursements and taxes. I would also
    order that the costs order from the motion below be reversed, so that the
    appellant be awarded costs in the amount of $22,000 all inclusive for the
    underlying motion.

Released: D.W. August 26, 2020

Fairburn J.A.

I agree. David Watt J.A.

I agree. Gary Trotter J.A.





[1]

The order under appeal was made pursuant to
r. 21.01(3)(c) of the
Rules of Civil Procedure
, which was the
    provision cited by the moving party in their factum in the court below.
    However, given that this was a motion contesting jurisdiction, the order should
    have been made pursuant to r. 21.01(3)(a) of the
Rules of Civil
    Procedure.



[2]

Throughout these reasons, I will refer to a singular
    collective agreement for convenience. Although there were multiple iterations
    of the collective agreement that were operative during the relevant time period
    of this claim, the relevant provisions are identical in each iteration.


