Two probationary officers in the Saskatoon Police Service were dismissed by the Chief of Police as being unsuitable for police service after they committed plagiarism while at Police College. Their Union sought to grieve the dismissals under the collective bargaining agreement. The Employer under the collective agreement, the Saskatoon Board of Police Commissioners, took the position that it lacked the jurisdiction to deal with the grievances because they dealt with discipline issues rather than employer-employee issues. A board of arbitration found the grievances to be arbitrable, and the Chief of Police successfully appealed. The issue on appeal was whether the arbitration board had correctly found that it had jurisdiction to deal with the grievances.

23. March 2004 0

Administrative law – Police – Penalties and suspensions – Plagiarism at police college – Labour law – Arbitration – Collective agreements – Jurisdiction of labour arbitrator to hear disciplinary grievances – Decisions of administrative tribunals – Police Commission – Jurisdiction – Judicial review – Standard of review – Reasonableness simpliciter

Saskatoon (City) Police Force v. Saskatoon (Police Commission), [2004] S.J. No. 9, Saskatchewan Court of Appeal, January 14, 2004, Sherstobitoff, Lane and Jackson JJ.A.

The Court reviewed the decision of the arbitration board on the standard of correctness.

The Court cited the case of Regina Police Assn. Inc. and Shotton v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360 with approval in that it held that disciplinary matters were not arbitable because the Legislature intended such disputes to be governed by the Police Act, 1990 S.S. 1990-91, rather than by the collective agreement. Although Shotton dealt with full time police officers rather than those on probation, the reasoning was held to apply to probationary officers as well. Shotton held that the Police Act and the regulations thereunder constituted a complete code for the discipline of members of the police service and that, accordingly, there was no recourse to the collective bargaining agreement in matters of discipline.

The underpinning of the distinction between disciplinary action and employee-employer involvement was laid out as follows:

The powers and duties invested in a member of the police service make them something more than mere employees of a municipality. As Laskin C.J.C. put it, in Re Nicholson and Haldimand-Norfold Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311 …:

I can see some value in this as background research, but the scheme of the Police Act and the involvement of statutory agencies, whether Boards of Commissioners of Police or Municipal Councils, has created an entirely different frame of reference, and what is preserved of the common law is merely the fact that a constable may still be considered as the holder of an office and not simply an employee of a Board or of a Municipality which, for many purposes, he certainly is.

That is the reason that disputes regarding discipline and disputes regarding the ordinary employer-employee relationship are governed differently, the former by the discipline provisions contained in the Police Act and the latter by the provisions of the Trade Union Act and the collective agreement. (para. 19)

The next question was whether the Legislature intended, in enacting s.67, to bring the disciplinary dismissals in question within the purview of the Trade Union Act, the collective agreement and the grievance procedure provided for in the collective agreement. The Court held that it did not, and that this was confirmed by the subsequent amendment to s.67(2) to exclude any appeals or reviews of such decisions. The Court stated:

The decision of the arbitration board in this respect was wrong in law.  The concept that a dismissal for disciplinary reasons be subject to review by a labour arbitration board is incompatible with the scheme of the Act as discussed at length in Shotton.  The sound policy reasons for separating disciplinary matters from ordinary employer-employee relations are also set out therein.

The appeal was allowed and the judgment below and the arbitration board’s award set aside.

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