Praskey v. Metropolitan Services Board et al.
[Indexed as: Praskey V. Metropolitan Toronto Police Services Board]
Court File No. C20527
Ontario Court of Appeal, Catzman, Carthy and Rosenberg JJ. A.
January 10, 1997.
Employment - Labour relations - Grievance arbitration -Arbitrability - Torts - Police discipline - Policeman bringing
action against police services board in respect of unfounded disciplinary proceedings - Court having jurisdiction over action
- Discipline procedure arising out of legislation not collective agreement - Matter not subject to grievance arbitration -
Police Services Act, R.S.O. 1990, c. P.15 - R.R.O. 1990, Reg. 927 (Police Services Act).
Police - Labour relations - Interest arbitration - Arbitrability -Torts - Police discipline - Policeman bringing action
against police services board in respect of unfounded disciplinary proceedings - Court having jurisdiction over action -
Discipline procedure arising out of legislation not collective agreement - Matter not subject to grievance arbitration-Police
Services Act R.S.O. 1990, c. p.15-R.R.O. 1990, Reg. 927 (Police Services Act).
A member of a police force brought an action against the police services board seeking damages for defamation,
malicious prosecution and negligence in respect of disciplinary proceedings which had been commenced against him
and ultimately dismissed. The board brought a motion to dismiss the proceedings, arguing that the court had no
jurisdiction over the claim as the dispute arose out of the employer/employee relationship and had to be resolved under
the grievance procedure set out in the collective agreement. The trial judge dismissed the motion.
On appeal, held, the appeal should be dismissed.
The essential nature of the dispute arises not out of the collective agreement, but by virtue of the discipline procedure
under the Police Services Act, R.S.O. 1990, c. P.15 and the regulations thereunder; which is wholly outside the collective
agreement. The court's jurisdiction over the claim has therefore not been ousted by the collective agreement.
Weber V. Ontario Hydro (1995), 125 D.L.R. (4th) 583,  2 S.C.R. 929, 30 Admin. L.R. (2d) 1,12 C.C.E.L. (2d) 1, 24 C.C.L.T.
(2d) 217, 95 C.L.L.C. ¶210-027, 30 C.R.R. (2d) 1, 82 O.A.C. 321, 24 O.R. (3d) 358n, 183 N.R. 241, 56 A.C.W.S. (3d) 94, apid
Other cases referred to
St. Anne-Nackawic Pulp & Paper Co. V. Ca?~dian Paper Workers Union, Local Q19, (1986), 28 D.L.R. (4th) 1, [1986)1 S.C.R. 704,
86 C.L.L.C. ¶14,037, 73 N.B.R. (2d) 236, 68 N.R. 112,38 A.C.W.S. (2d) 3
Statutes referred to
Police Services Act, R.S.O. 1990, c. P.15, ss.50(l), 60, 63
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, 5. 21.01(3)(a)
R.R.O.1990, Reg. 927 (Police Services Act)
APPEAL from an order of Jennings J., 95 C.L.L.C. ¶210-007, 51 f A.C.W.S. (3d) 658, dismissing a
motion to dismiss an action.
Kevin A. McGivney, for appellants.
Joshua S. Phillips, for respondent.
The judgment of the court endorsed on the appeal record was as follows:
BY THE COURT:-This is an appeal from the order of Jennings J. dismissing a motion brought by the defendants pursuant to rule 21.01(3)(a) seeking an order dismissing the plaintiff's action on the ground that the court has no jurisdiction over its subject matter. The plaintiff is a Detective Sergeant with the Metropolitan Toronto Police Force. The defendants Worsley, Federico, Dalziel, Russell, Pearson, Matte, Sweeney, Waddell and Boyd are also members of the Force holding various ranks. The defendant McCormack was the Chief of Police of the Force at the relevant time. The Metropolitan Toronto Police Services Board is the statutory body responsible for the provision of police services in Metropolitan Toronto and by virtue of s.50(1) of the Police Services Act, R.S.O.1990, c. P.15 is liable in respect of torts committed by members of the police force in the course of their employment.
In an amended statement of claim the plaintiff seeks "a declaration that the defendants have defamed, maliciously prosecuted and acted negligently towards the plaintiff". He also seeks general, special and exemplary, damages. The plaintiff's claim arises out of discipline proceedings that were initiated against him
pursuant to the Police Services Act and purportedly conducted in accordance with the Act and R.R.O. 1990, Reg. 927. On January 7, 1993 the charges were dismissed after a hearing presided over by a superintendent of the Force pursuant to s.60 of the Police Services Act.
The defendants argue that the court has no jurisdiction over the plaintiff's claim. They argue that the dispute between the plaintiff and the defendants arises out of the employer/employee relationship and must be resolved within the context of the grievance procedure set out in the collective agreement between the Police Services Board and the Metropolitan Toronto Police Services Association.
In dismissing the defendants' motion Jennings J. applied the decision of the Supreme Court in St. Anne-Nackawic Pulp & Paper Co. V. Canadian Paper Workers Union, Local 219, [1986)1 S.C.R. 704, 28 D.L.R. (4th) 1. In doing so he appears to have applied either the concurrent jurisdiction or overlapping jurisdiction model. He held that, while some part of the plaintiff's claim could have gone forward by way of the grievance procedure in the collective agreement, the balance of the claims are not arbitrable under the collective agreement, but rather constitute common law torts. Accordingly, he held that the court's jurisdiction with respect to the tort claims against the defendants was not ousted by the collective agreement.
The most recent pronouncement on this subject is Weber V. Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.), decided after the judgment in the court below. In Weber, McLachlin J. speaking for the majority of the Court rejected the concurrent jurisdiction and overlapping jurisdiction models and adopted the exclusive jurisdiction model. The determination of whether the court has jurisdiction is made not on the basis of~the legal issues which may be framed but on the basis of the facts surrounding the dispute between the parties. As she said at page 600: "Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it." Thus, to the extent that Jennings J. allowed the plaintiff's case to proceed by application of the concurrent or overlapping jurisdiction model he erred.
Nevertheless, we are all of the view that the appeal must be dismissed. In Weber McLachlin J.
summarized the test to be applied in the following terms, at page 602:
The question in each case is whether the dispute, in its essential character, arises fi~om the interpretation, application,
administration or violation of the collective agreement.
and at page 603:
This approach does not preclude all actions in the courts between C employer and employee. Only disputes which
expressly or inferentially arise out of the collective agreement are foreclosed to the courts ...
The essential nature of the dispute in this case arises not out of the collective agreement but by virtue of the exercise of the discipline procedure under Part V of the Act and Reg. 927.
The defendants rely upon the management rights clause in Article 3:01 of the collective agreement. Article 3:01 of the Agreement is as follows:
3:01 (a) The Association and its members recognize and acknowledge that subject to the provisions of the Police Services Act and the Regulations thereto, it is the exclusive function of the Board to:
(i) maintain order, discipline and efficiency;
(ii) discharge, direct, classify, transfer, promote, demote or suspend, or otherwise discipline any member;
(b) If a member claims that the Board has exercised any of the functions outlined in paragraph (a)(ii) in a
discriminatory, manner or without reasonable cause, then such a claim may be the subject of a grievance under
the provisions of the grievance procedure outlined in this Collective Agreement or dealt with under procedures
within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services, as prescribed by the
Police Services Act.
That clause refers to discipline imposed by the Board and allows the member to launch a grievance if the Board has exercised any of the functions including discipline of a member in a discriminatory manner or without reasonable cause. However, the acts complained of by the plaintiff here arise not out of any disciplinary function by the Board but out of the exercise of the statutory powers and procedures by the Chief of Police and his delegates and by exercise of the complaint procedure by members of the force in purported compliance with the Act and regulations. The Board's power in relation to matters of discipline of the nature involved in this case is a limited one. Under s.63 of the Act an officer on whom a penalty is imposed by the Chief of Police may appeal to the Board. That section had no application in this case since the charges were dismissed at the hearing.
While the Chief of Police reports to the Board and is obliged to obey its lawful orders and directions, in exercising the powers of discipline the Chief of Police is acting under the Police Services Act and the Regulations. That legislation sets out a comprehensive substantive and procedural scheme for the discipline of members that is wholly outside the collective agreement. A dispute over the exercise of those powers does not arise out of the collective agreement within the meaning of Weber. It follows that the court's jurisdiction over the plaintiff's claim has not been ousted by the collective agreement.
Accordingly, the appeal is dismissed with costs.