Sep 1, 2020

COURT OF APPEAL SUMMARIES (August 24 – 28, 2020)

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

[Watt, Trotter and Fairburn JJ.A.]

Counsel:

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

Kirk Boggs and Naida Marotta, for the respondents

Keywords: Torts, Malicious Prosecution, Misfeasance in Public Office, Conspiracy, Deceit, Negligence, Labour Law, Police Services, Collective Bargaining Agreements, Civil Procedure, Striking Pleadings, Jurisdiction, Amending Pleadings, Police Services Act, R.S.O. 1990, c. P.15, ss. 113(5), Conduct and Duties of Police Officers Respecting Investigations by the Special Investigations Unit, O. Reg. 267/10, s. 3(1), Rules of Civil Procedure, Rule 21.01(3)(a), Tran v. University of Western Ontario, 2015 ONCA 295, Adelaide Capital Corp. v. Toronto Dominion Bank, 2007 ONCA 456, Piko v. Hudson’s Bay Co., 41 O.R. (3d) 729 (C.A.), McNeil v. Brewers Retail Inc., 2008 ONCA 405, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, Abbott v. Collins (2003), 64 O.R. (3d) 789 (C.A.), Heasman v. Durham Regional Police Services Board, 204 O.A.C. 283 (C.A.), DiNunzio v. City of Hamilton, 2010 ONSC 3631, aff’d 2011 ONCA 65, leave to appeal refused, [2011] S.C.C.A. No. 110, Odhavji Estate v. Woodhouse, 2003 SCC 69

Facts:

A few months after the appellant, MR, was appointed to the position of Acting Staff Sergeant in charge of the tactical unit of the Ottawa Police Service, 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.

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 under ss. 221 and 80 of the Criminal Code. 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.

The appellant sued the respondents (three police officers with whom he worked, a superior officer, the then Chief of Police, and the Ottawa Police Services Board) 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.

The respondents brought a motion under Rule 21 of the Rules of Civil Procedure, to dismiss the claim for want of jurisdiction. The motion judge concluded that the essential character of the appellant’s 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 (“PSA”). Accordingly, the motion was granted and the claim was dismissed. In dismissing the action, the motion judge distinguished prior Court of Appeal decisions that had determined that employers reporting employees to the police, thereby triggering police investigations and criminal charges, were matters falling outside of workplace disputes.

Issue:

Whether the motion judge erred in determining that the essential character of the appellant’s claim is one that is governed exclusively by the collective agreement and the PSA, thereby ousting the jurisdiction of the court.

Holding:

Appeal allowed.

Reasoning:

Yes. The motion judge erred in how he arrived at the conclusion that this was a “workplace centred” action. 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 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 had jurisdiction over the subject matter of the action.

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. However, 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”.

The alleged facts underpinning the legal complaint, as opposed to its legal characterization, determine the dispute’s 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: 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.

Part V of PSA governs complaints and disciplinary proceedings for police officers. 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. However, the Court did not agree with the respondents’ submission 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. There was no support for the proposition that, as a matter of law, the court’s jurisdiction is necessarily ousted for the purposes of any dispute that may involve police officers. The authorities relied upon by the respondents demonstrated the opposite. The Court then referred to some of those authorities to demonstrate that they all involved true workplace-centred disputes.

This case was 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. The Superior Court is the only place where the appellant’s claim can be adjudicated.

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”? 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 was an extricable legal error reviewable on the standard of correctness.

The allegations made in the statement of claim were not allegations of unfair workplace treatment. The appellant 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. 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.

The motion judge erred when he rejected two prior decisions of the Court which held that by reporting employees to the police, the employer jettisoned the matters outside the catch frame of the collective agreement. While the motion judge was right that there were some distinguishing features between this case and those, they were features that did not impact the result.

Even if the underlying allegations could have been dealt with as a complaint under the PSA, that did not impact the court’s jurisdiction. There is nothing about a matter being dealt with under the PSA that would or should oust a private claim.