An application for judicial review of an Arbitrator’s decision which held that a police officer was entitled to indemnification under the collective agreement for legal costs incurred in defending a criminal charge despite having pled guilty to a charge of insubordination. The Court held that breach of a rule or directive does not automatically lead to the conclusion that the officer was not attempting to perform his police duty in good faith. The application for judicial review was dismissed.

Administrative law – Decisions of administrative tribunals – Police Commission – Arbitration Board – Police – Criminal charges – Disciplinary proceedings – Judicial review – Applications – Costs – Legal fees

Toronto Police Services Board v. Toronto Police Assn., [2007] O.J. No. 1948, Ontario Superior Court of Justice, Divisional Court, May 15, 2007, S.N. Lederman, K.E. Swinton and H.T. Spiegel, JJ.

A police officer stopped a female motorist in the course of his duties, and upon learning that her diver’s license was suspended, allowed her to drive home while he followed in his police cruiser. He entered her house and had a conversation with her. Later, the woman alleged that the Officer had extorted sexual favours from her in return for a promise not to issue a ticket. He was charged criminally with breach of trust, but was acquitted. He was also charged under the Police Services Act (“PSA”) with insubordination, to which he pled guilty and received a loss of two days of pay. When the Officer sought payment of his legal expenses incurred in defending the criminal charge, the Board refused the request. The Board maintained that the events in question were the direct consequence of the Officer’s failure to perform his duties under the PSA and that this rendered him ineligible for legal indemnification. At arbitration, the Arbitrator upheld the grievance and ordered the Board to indemnify the Officer for his legal expenses. The Applicant sought judicial review of the Arbitrator’s decision and an order that Arbitrator’s decision be quashed.

The central feature of the PSA charge was that the Officer permitted Ms. Brown, the driver whose license was under suspension, to drive her vehicle home. The Board submitted that the events inside Ms. Brown’s home all flowed from the Officer’s failure to follow the directive and that this disentitled him to indemnification because he knowingly breached a mandatory directive and in doing so was a party to an offence under the Highway Traffic Act, namely driving while under suspension. The Board argued that the Officer’s conduct in not following a mandatory procedure was a clear indication that he was “not attempting to perform his duties in good faith” within the meaning of the legal indemnification clause of the collective agreement.

On judicial review, the central issue was whether the PSA charge of insubordination was also the basis for the criminal charge. Without determining the appropriate standard of review, the Court concluded that even using a standard of reasonableness simpliciter, it could not be said that the Arbitrator’s award was unreasonable. The Court held that the Arbitrator’s decision to focus on the actions of the Officer at the home of Ms. Brown was reasonable, and that his conclusion that a breach of a rule or directive does not automatically lead to the conclusion that the police officer was not attempting to perform his police duty in good faith, was not unreasonable. In the result, the application was dismissed.

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