LEGAL UPDATE

WHAT YOU NEED TO KNOW

Ian B. Johnstone B.Sc., LL.B., LL.M.

Overview

• WHAT IS NEW IN HUMAN RIGHTS?

• WHAT IS NEW IN DISCIPLINARY CASES?

• MEDICAL NOTES – DR. WINTEROFF

• FRUSTRATION OF CONTRACT

• PROBATIONARY CONSTABLES

• CORONER’S INQUESTS

HUMAN RIGHTS

• Cst. Kreiger and TPSB (2010) (PTSD)

• Khan v. TPSB (2014) (No Waiting for JR)

• Sivandian v. TPSB (2014) (No Waiting for JR)

OCPC and Deferral

• Noor Khan v. YPRS

• Allowed deferral for criminal proceedings re: sexual assault and prior termination by Hearing Officer.

• PC Khan appealed his criminal conviction

• OCPC deferred its own proceeding

• Reasons = criminal and PSA are same circumstances

PSA and Arbitraton

• PC Wiles v. DRPS (2014)

• York Police Association v. YRPSB (2014)

• “the qualifying member’s health, length of service, seniority in present rank, results of the qualifying examination, work record, any evaluation and all other pertinent information which is available to them at that time.”

• Chief’s discretion upheld

Medical Notes

Challenge if necessary

• Perron v. Monto (2011) OHRTD No. 699 (HRTO)

• Applicant requested adjournment, stating he was gravely ill;

• HRTO required Applicant to provide additional information to support his claim he was too ill to attend the hearing;

Perron v. Monto (2011) OHRTD No. 699 (HRTO)

• HRTO requested:

• Name of medical specialist;

• Date of appointment;

• Detailed information from specialist regarding when Applicant was expected to be medically fit to participate in hearing (in person or electronically);

• Applicant failed to provide information;

• Adjournment denied.

• “I am not prepared to adjourn the matter indefinitely. It is unfair to the responding party to do so. She has been dealing with this matter for 6.5 years already”.

Palangio v. Cochrane (Town), 2010 OHRTD No. 1252 (HRTO)

• requested adjournment on basis that he was sick and resting;

• Doctor’s note: “off work x 2 weeks”;

• Insufficient

• “[The note] does not specifically address the Applicant’s ability to attend the hearing”.

Palangio v. Cochrane (Town), 2010 OHRTD No. 1252 (HRTO)

• “This note also does not indicate what symptoms the applicant may be experiencing or what medical restrictions he may have which prevent his from attending the hearing. Nor has the Applicant himself provided any such information to the Tribunal in support of his adjournment request”

• Hearing proceeded as scheduled because medical information was insufficient to warrant an adjournment

Frustration of Contract

Severance of Employment

•What constitutes severance?

•63. (1) An employer severs the employment of an employee if,

•(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee;

Frustration of Contract

Termination and Severance of Employment, O. Reg. 288/01

Employees not entitled to notice of termination or termination pay

•2. (1) The following employees are prescribed for the purposes of section 55 of the Act as employees who are not entitled to notice of termination or termination pay under Part XV of the Act:

•4. An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.

•(3) Paragraph 4 of subsection (1) does not apply if the impossibility or frustration is the result of an illness or injury suffered by the employee.

Frustration of Contract

Employees not entitled to severance pay

•9. (1) The following employees are prescribed for the purposes of subsection 64 (3) of the Act as employees who are not entitled to severance pay under section 64 of the Act

•2. Subject to subsection (2), an employee whose contract of employment has become impossible to perform or has been frustrated.

•(2) Paragraph 2 of subsection (1) does not apply if,

•(b) the impossibility or frustration is the result of an illness or injury suffered by the employee.  

Zaromitidis v. Toronto Police Services Board, 2014 HRTO 1296

 

• Mr. Zaromitidis brought a complaint against the Toronto Police Service Board (the “Board”), and the Ministry of Community Safety and Correctional Services (the “Ministry”), to the Ontario Human Rights Tribunal with regard to his failure to obtain a certificate under the Constable Selection System (“CCS”).

• Had a hearing impediment • Passed 5 of the 6 tests in Stage 1 of the CCS

carried out by Applicant Testing Services (“ATS”). • Unable to get certificate of results.

Zaromitidis v. Toronto Police Services Board, 2014 HRTO 1296

 

• Claimed discrimination re: test and accommodation• Claimed against the Inspector re: race, ethnic origin and age.• TPS admitted discrimination but claim BFOR

• (1) a requirement, qualification or standard was adopted for a purpose or goal that is rationally connected to the function being performed;

• (2) a requirement, qualification or standard was adopted in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and

• (3) a requirement, qualification or standard is reasonably necessary to accomplish its purpose or goal, in the sense that the respondent cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.

Zaromitidis v. Toronto Police Services Board, 2014 HRTO 1296

 • Ruling – insufficient evidence for Safety and

Efficiency for police work• Insufficient evidence as to why Zaromitidis

could not carry out duties of a police officer safely and efficiently

• Awarded $8,000.00 in general damages

TPA V. TPSB (2014)

• ING & CRUZ CASE• Police Officers Suspended without Pay and

Subsequently Acquitted: The Economic Burden of Innocence

• After a SIU investigation, Toronto Police Constables Ing and Cruz were charged and convicted of assault occasioning actual bodily harm.

• Both officers were sentenced to 12 months imprisonment. As a result, the Toronto Police Service (“TPS”) suspended the officers without pay under section 89(6) of the Police Services Act (“PSA”).

• Both officers appealed conviction and sentence and remained on unpaid suspension while awaiting their appeal.

TPA V. TPSB (2014)

Nine months later the Court of Appeal ordered a new trial.

The Crown did not pursue further proceedings against Constable Cruz. However,Constable Ing received a new trial and the charge was subsequently dismissed.

Both Constables grieved the decision of the Toronto Police Services Board (the “Board”) not to reimburse the officer’s unpaid salary for the period the officers were suspended without pay.

TPA V. TPSB (2014)

Association argued: if the officers were found not guilty they were entitled to pay or compensation while on suspension.

Board argued: officers were to be treated as employees of the municipality and the collective agreement governed all aspects of compensation, not the public status of the officer.

Result: initial suspensions without pay after conviction were lawful Once the charges were disposed of, and found innocent, grievances were upheld. Arbitrator held that remuneration for officers does not depend on their status as public office holders and that it would be manifestly unjust for the officers to bear the economic burden of innocence.

Corner’s Inquest

Responsibility of Police Services Board

Reviewing Policies And Ensuring They Are Updated

Ensure Compliance With Policing Standards

Review All Jury Recommendations

Review Legality And Costing For Possible Implementation

Thank you