



COURT OF APPEAL
    FOR ONTARIO

CITATION: Skof v. Bordeleau, 2020 ONCA 729

DATE: 20201117

DOCKET: C67874

Huscroft, Nordheimer and Harvison Young JJ.A.

BETWEEN

Matthew Skof
and
    Ottawa Police Association

Plaintiffs/Responding
    Parties

(
Appellant
)

and

Charles Bordeleau and
    Ottawa Police Services Board

Defendants/Moving
    Parties

(Respondents)

Paul Champ, for the appellant

Ronald F. Caza and Marie-Pier Dupont, for the respondents

Heard: October 23, 2020 by video conference

On appeal from the order of Justice Marc R. Labrosse of
    the Superior Court of Justice, dated December 20, 2019, with reasons reported
    at 2019 ONSC 7418.

Nordheimer J.A.:

[1]

Matthew Skof appeals from the order of the motion judge that dismissed
    his action under r. 21.01(3)(a) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, on the basis that the Superior Court of Justice did not
    have jurisdiction over the subject matter of the action. For the following
    reasons, I would allow the appeal, set aside the order below, and reinstate the
    appellants action.
[1]

I: Background

[2]

The appellant is a police officer with the Ottawa Police Service. He is
    also the President of the Ottawa Police Association (OPA) and has been since
    he was elected to that position on December 15, 2011.

[3]

On January 23, 2019, the Ontario Provincial Police (OPP) charged the
    appellant with certain offences under the
Criminal Code
. The OPP
    investigation was prompted by a written request from the respondent,
Charles Bordeleau, who was then the
Chief of
    Police of the Ottawa Police Service. On that same day, Bordeleau suspended the
    appellant pursuant to his authority under s. 89 of the
Police Services Act
,
    R.S.O. 1990, c. P. 15 (
PSA
).

[4]

The appellant, along with the OPA, commenced an action on March 22, 2019
    against the respondents. In that action, the plaintiffs claim declaratory
    relief, injunctive relief, and damages arising both from alleged breaches of
    the appellants
Charter
rights and also from an alleged misfeasance in
    public office by Bordeleau. Central to the issues in the action are the
    allegations that the actions of Bordeleau, in suspending the appellant, interfere
    with his ability to represent and assist the OPA and its members in a variety
    of ways, including collective bargaining, discipline, and grievance matters. It
    is also alleged that the suspension was motivated by improper purposes arising
    from a long history of animosity between the appellant and Bordeleau. It is
    further alleged that the actions of Bordeleau have undermined the appellants
    reputation.

[5]

The respondents brought a motion to dismiss the action on the basis that
    the Superior Court of Justice does not have jurisdiction to entertain the
    claim. They assert that the issues raised are ones for determination under the
    collective agreement. Alternatively, the respondents say that the appellant had
    to seek relief under the
PSA
, or by way of judicial review. The motion
    judge agreed. He found, at para. 50:

Consequently, in any of these scenarios, the Superior Court
    does not have jurisdiction over the dispute and it is not for this Court to
    determine the proper venue for the dispute other than by making a determination
    that it is not by way of this Statement of Claim as drafted. The Plaintiff's
    claim is therefore dismissed.

[6]

It appears that the motion judges finding that the appellant continued
    to be an employee of the Ottawa Police Service, during his secondment to the OPA,
    weighed heavily in the conclusion that he reached. Although the appellant does
    not dispute that he continued to be an employee, he submits that that fact does
    not inevitably lead to the conclusion that the motion judge reached.

II: The test under r. 21.01(3)(a)

[7]

Because the parties raise the issue, I will briefly address the
    appropriate test to be applied when deciding a motion under r. 21.01(3)(a) of
    the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.

[8]

The basic proposition applicable to r. 21.01(3)(a) can be stated fairly
    simply: either the Superior Court of Justice has jurisdiction over a claim or
    it does not. In deciding that issue, it must be remembered that the Superior
    Court of Justice, as a court of inherent jurisdiction, has jurisdiction over
    every conceivable claim unless (i) the claim does not disclose a reasonable
    cause of action or (ii) the jurisdiction has been removed by legislation or by
    an arbitral agreement:
TeleZone Inc. v. Canada (Attorney General)
,
2008 ONCA 892, 94 O.R. (3d) 19, at para. 92, affd 2010 SCC 62, [2010] 3 S.C.R.
    585.

[9]

Some prior authorities have debated whether it is appropriate to use the
    plain and obvious test under r. 21.01(3)(a). I do not think it is helpful to further
    that debate. It is clear that, in order to find that the Superior Court of
    Justice does not have jurisdiction to entertain a claim, it must be clear and
    unequivocal that the jurisdiction has been ousted:
TeleZone
, at para.
    92. Unfortunately, the motion judge does not appear to have approached the
    motion before him with that principle in mind.

III: The collective agreement

[10]

It
    is clear from the material filed in the record that, once the appellant was
    elected as President of the OPA, he was no longer subject to the collective
    agreement that otherwise governs all employees of the Ottawa Police Service. The
    collective agreement contains an express provision dealing with the status of
    officers who become executive officers of the OPA. Those officers are given a
    leave of absence from their duties as employees during their time with the OPA.

[11]

In
    conformity with that provision, when the appellant became the President of the
    OPA, the OPA and the Ottawa Police Service signed a Memorandum of Agreement which
    provided, among other things, that aside from benefits, the collective
    agreement did not apply to the appellant during his time with the OPA. More
    specifically, clause 4 of that Memorandum of Agreement stated:

Aside from the Agreement provisions mentioned specifically in
    3, above, all other provisions of the Agreement shall not apply to Mr. Skof
    during his secondment.

[12]

The
    motion judge found that the Memorandum of Agreement, and Article 21 of the
    collective agreement, were in conflict. I do not agree that there is any such conflict.
    Article 21 provides for leaves of absence of up to three officers to be
    full-time executive officers for the OPA. It also provides that the OPA must
    reimburse the employer for costs associated with those leaves of absence,
    including salaries and benefits for the three officers. Finally, Article 21
    provides that those employees are not subject to discipline under the
    collective agreement for duties relating to their activities on behalf of the
    OPA.

[13]

The
    Memorandum of Agreement is consistent with Article 21, not in conflict with it.
    Indeed, the Memorandum of Agreement makes it even clearer that the collective
    agreement does not apply to the appellant in any respect, other than his salary
    and benefits.

[14]

The
    result is that, while the appellant technically remained an employee of the
    Ottawa Police Service, he was expressly not subject to the collective
    agreement. He cannot, consequently, invoke the grievance procedure under the
    collective agreement to address his suspension, assuming that he would
    otherwise have had the right to do so. I should note that, although the
    appellant did, in fact, file a grievance at one point, I am satisfied that this
    was done out of an abundance of caution in case a contrary conclusion was ever
    reached. That fact does not impact on the proper interpretation of the
    contractual arrangements between the parties.

[15]

The
    respondents attempt to avoid this result by contending that the essential
    character of the claim is one covered by the collective agreement. They seek
    to invoke the principles established in
Weber v. Ontario Hydro
, [1995]
    2 S.C.R. 929, to bring the appellants claim within the collective agreement.

[16]

I
    have already set out why the collective agreement does not have any application
    to this case, the principal reason being that the parties agreed that it would
    not. I would also note that McLachlin J. made it clear in
Weber
, at
    para. 67, that the exclusive jurisdiction of the arbitrator is subject to the
    residual discretionary power of courts of inherent jurisdiction to grant
    remedies not possessed by the statutory tribunal. This point was reiterated in
Piko v. Hudson's Bay Co.
(1998), 167 D.L.R. (4th) 479 (Ont. C.A.),
    leave to appeal refused, [1999] S.C.C.A. No. 23, where Laskin J.A. said, at
    para. 11:

Some disputes between employers and employees may not arise
    under the collective agreement; others may call for a remedy that the
    arbitrator has no power to grant. The courts may legitimately take jurisdiction
    over these disputes.

[17]

In
    any event, I do not agree with the respondents that the essential character of
    the claim is related to the employment relationship. To the contrary, the
    essential character of the claim relates to disciplinary action taken by
    Bordeleau under his authority as Chief of Police. In
Regina Police Assn.
    Inc. v. Regina (City) Board of Police Commissioners
, 2000 SCC 14, [2000] 1
    S.C.R. 360, Bastarache J. explained that just because a person is an employee
    does not
per

se
bring a given dispute within the
    collective agreement. Rather, if the dispute arises out of disciplinary action
    in a regulatory context, the dispute does not fall within the collective
    agreement or the jurisdiction of an arbitrator. In this case, as was the case
    in
Regina Police Assn. Inc.
,
it is clear that the Legislature
    intended that matters of discipline would be governed by the
PSA
, as I
    shall explain.
[2]

IV: The
Police Services Act

[18]

By
    virtue of s. 126 of the
PSA
, collective agreements between police services
    in Ontario and their employees are not entitled to address the statutory complaints
    system under Part V of the
PSA
, which includes the suspension power
    under s. 89. Consequently, the grievance procedure under the collective
    agreement could not have been used to challenge a suspension made under s. 89
    of the
PSA
. That conclusion raises the issue of what remedy was then
    open to the appellant to challenge his suspension.

[19]

The
    motion judge found, as an alternative route to the collective agreement, that
    the appellant may fall under Part V of the
PSA
 but he did not
    identify how that fact provided any remedy to the appellant. There is no
    provision in the
PSA
that permits an officer to challenge a suspension
    ordered by a Chief of Police under s. 89. Notwithstanding that fact, the
    respondents maintain that the appellant could have sought relief from the Ontario
    Civilian Police Commission under Part V. However, they are unable to point to
    any provision in the
PSA
that would authorize the Commission to
    undertake such a review. Indeed, in the only decision of the Commission that
    the parties provided to us on this point, the Commission concluded that a
    suspension is not a penalty over which it has appellate jurisdiction.
[3]

[20]

Consequently,
    the only remedy for a police officer who asserts that s/he has been subject to
    a suspension that is unlawful is to seek relief through the court process. That
    then raises the question as to the proper forum for seeking relief from the
    courts, i.e., can the appellant institute an action in the normal course or
    must he seek judicial review of the suspension decision, on the basis that the
    suspension power represents a statutory power of decision as defined in the
Judicial
    Review Procedure Act
, R.S.O. 1990, c. J.1.

V: Judicial Review

[21]

On
    this point, the motion judge appears to have been of the view that the issues
    here could be addressed only by judicial review. As result, in his view, the
    appellant was not entitled to bring an action for such relief but, rather, had
    to pursue an application for judicial review to the Divisional Court. This led
    the motion judge to strike out the appellants action.

[22]

With
    respect, the motion judge erred in so concluding. Assuming that the appellants
    action constitutes a claim for judicial review, there is nothing in the
Judicial
    Review Procedure Act
that precludes an aggrieved party from seeking relief
    by way of an action. Indeed, the
Judicial Review Procedure Act
contemplates that very possibility because it refers, in s. 8, to actions that
    seek relief in the nature of judicial review, and provides that a judge of the
    Superior Court of Justice can deal with such actions summarily, or can treat
    the action as an application for judicial review and refer it to the Divisional
    Court. I would note, on this point, that one reason why an aggrieved party
    might choose to bring an action, as opposed to an application for judicial
    review, is that in the former, unlike the latter, damages can be sought.

[23]

In
    any event, the appellants action is not simply an action for judicial review. It
    is an action for different heads of relief including claims for damages for
Charter
breaches and for misfeasance in public office. In fact, read generously, the
    statement of claim appears to call into question whether Bordeleau had
    authority to use s. 89 to suspend the appellant, given his position. Put
    another way, it is an arguable question whether the appellant is a police
    officer to whom s. 89 applies.

[24]

The
    end result is that it is not clear and unequivocal that the Superior Court of
    Justice does not have jurisdiction to entertain the appellants action for the
    relief that he seeks, given his circumstances and position, and the nature of
    his claims. The motion judge erred in concluding otherwise.

VI: Conclusion

[25]

The
    appeal is allowed, the order below is set aside, and the action is reinstated
    as it relates to the appellant. The appellant is entitled to his costs of the
    appeal fixed in the agreed amount of $14,000, inclusive of disbursements and
    HST. In addition, as also agreed between the parties, the costs award made by
    the motion judge is reversed to now be in favour of the appellant.

Released: GH   November 17, 2020

I.V.B. Nordheimer
    J.A.
I agree. Grant Huscroft J.A.
I agree. Harvison Young J.A.





[1]

The Ottawa Police Association did not appeal from the motion
    judges decision. The action remains dismissed with respect to it.



[2]
See also
Rukavina v. Ottawa (City) Police
    Services Board
,
2020 ONCA 533.



[3]

Herridge v St. Thomas Police Service
, 2007 ONCPC 5


