Proctor v. Sarnia Board of Commissioners of Police, [1980] 2 SCR 727

Supreme Court of Canada

Proctor v. Sarnia Board of Commissioners of Police, [1980] 2 S.C.R. 727

Date: 1980-12-18

Douglas Proctor (Plaintiff) Appellant;

and

The Board of Commissioners of Police for the City of Sarnia (Defendant) Respondent;

and

The Attorney General for the Province of Ontario Intervener.

1980: December 2; 1980: December 18.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Estey, McIntyre and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Administrative law—Police—Dismissal—Appellant, a probationary constable, dismissed by chief of police—Reasons for dismissal ambiguous—Power of dismissal exclusively vested in Board of Police Commissioners—Board ratified dismissal without passing resolution, taking minutes, or hearing and informing appellant—Whether or not dismissal valid—The Police Act, R.S.O. 1970, c. 351, s. 29—Regulation 680, s. 27(b).

Appellant was engaged by respondent as a probationary constable, and, under s. 9 of the collective agreement between the Sarnia Police Association (of which he became a member) and the respondent, was subject to dismissal “without notice and without reference to the Police Code of Discipline and without a trial or hearing before the Board at any time during the. period [18 months after first being hired]”. The collective agreement was entered into pursuant to s. 29 of The Police Act. Under both s. 9 of the collective agreement and s. 21(b) of Regulation 680, made under The Police Act, the power to dismiss was exclusively in the respondent Board.

Appellant had been with another constable, drinking in a tavern in an adjoining municipality, when a disturbance occurred resulting in the local police being called. A hearing was launched under The Police Act as to the other constable’s conduct and appellant testified. He was informed of his dismissal by the chief of police the next day. The chief of police, on his evidence, stated that, when asked by appellant for the reason of his dismissal, he replied “unsatisfactory probation—not what we had expected”. In his evidence, the chief of police stated that while he had not attended the hearing, he had been told that the appellant should be dismissed because he had lied under oath. The respondent Board

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was later advised of the discharge, and despite the fact that no decision had been made at the hearing, confirmed the discharge but without passing a resolution, taking minutes, calling appellant before it or notifying him of his dismissal.

The Ontario Divisional Court unanimously concluded that the dismissal effected by the chief of police could be confirmed by the governing Board, if the necessary resolution were passed. The Ontario Court of Appeal by a majority based on differing reasons reversed the Divisional Court’s order that appellant be reinstated.

Held: The appeal should be allowed.

A constable was not to be lightly deprived of his status by an unauthorized act. Appellant, since the respondent Board did not tell him that he was discharged, was entitled to believe that he had been discharged by the chief of police. The power to effect a dismissal, however, was vested exclusively in the respondent Board by the collective agreement and could not be delegated. The opportunity allegedly given appellant to respond was no opportunity when it was to a person without power to effect a dismissal—the chief of police. It was unclear that appellant knew of the reason for dismissal at the time. The respondent Board, when it did not even let the appellant know that his case was going to be considered, did not fulfil its statutory function in respect of the dismissal. There was no effective discharge under the law.

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing an appeal from a judgment of the Ontario Divisional Court reinstating appellant. Appeal allowed.

Robert Murray, Q.C., for the appellant.

H.W. Rowan, Q.C., and Carl C. Fleck, Q.C., for the respondent.

Dennis W. Brown, Q.C., for the intervener the Attorney General of Ontario.

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The judgment of the Court was delivered by

THE CHIEF JUSTICE—The main issue in this case is whether the appellant Proctor, then a probationary constable, was lawfully dismissed from police service. Although there are nuances here touching the judgment of this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police[2], the proper disposition of this appeal does not depend on that case.

The Ontario Divisional Court, before which the dismissal came for review, concluded unanimously that although the actual dismissal was effected by the chief of police it could be confirmed by the governing police board; however, a resolution was necessary and none had been passed. Its order directing that the appellant be reinstated was reversed by a majority judgment of the Ontario Court of Appeal. Brooke J.A. and Thorson J.A. agreed for different reasons that the appeal should be allowed. Wilson J.A. dissented and would have dismissed the appeal.

The further appeal to this Court is by its leave. The essential facts are not in dispute. Proctor was engaged by the Board of Commissioners of Police of Sarnia on February 10, 1975, as a constable fourth class. At the turn of the following year he became a constable third class. Nonetheless he remained a probationary constable and, under section 9 of the collective agreement between the Sarnia Police Association (of which he became a member) and the Board, he was subject to dismissal “without notice and without reference to the Police Code of Discipline and without a trial or hearing before the Board at any time during the period [of 18 months after first being hired]”. The collective agreement was entered into pursuant to s. 29 of The Police Act, R.S.O. 1970, c. 351, as amended by 1972 (Ont.), c. 103. I shall return to s. 29 later in these reasons but I would refer here to s. 21(b) of Regulation 680, made under The Police Act. This provision, which was considered in the Nicholson case, reads as follows:

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27. No chief of police, constable or other police officer is subject to any penalty under this Part except after a hearing and final disposition of a charge on appeal as provided by this Part, or after the time for appeal has expired, but nothing herein affects the authority of a board or council,

…

(b) to dispense with the services of any constable within eighteen months of his appointment to the force;

…

It is evident that both under section 9 of the collective agreement and under s. 27(b) of the Regulation the power to dismiss is in the Board.

On May 14, 1976, Proctor was summoned before the chief of police and told that his services were no longer required, and that he should turn in his equipment, an order which Proctor obeyed. The evidence discloses that Proctor had been with another constable, one Archer, on February 19, 1976 and they were drinking in a tavern in an adjoining municipality. There was a disturbance, the local police were called, and, in the result, Archer was dismissed. A hearing into Archer’s conduct was launched under The Police Act, at which Proctor testified. No decision had been reached at the time that Proctor was dismissed. At the time of dismissal by the police chief, Proctor, on his evidence, said that he asked for the reason and was told “unsatisfactory probation—not what we expected”. In his evidence, the police chief said that although he himself did not attend the Archer hearing, he was told that Proctor should be dismissed because he had lied under oath, presumably having given evidence favourable to Archer. I note here that Archer’s hearing was on May 13 and Proctor was dismissed the next day.

It was conceded by counsel for the Board that only the Board had power to dismiss a constable, whether a probationer or other, and that the power could not be delegated to nor exercised by the police chief. The record shows that the Board was later advised of the discharge and considered it at

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a meeting on June 1, 1976. One member felt that the discharge was hasty when a decision on Archer had not yet come down. Nonetheless, the Board, apparently by a majority, confirmed the dismissal. No resolution was passed (as already noted); no minutes were taken; Proctor was never called before the Board and he was not notified by the Board that he stood dismissed.

In the Court of Appeal, Brooke J.A., one of the majority, proceeded on the basis that only the Board could effect the discharge of a constable, although the chief might suspend pending consideration by the Board of a recommendation by him of dismissal. However, he was of the opinion that the provisions of the collective agreement must be realistically applied and that, although the evidence left something to be desired from the point of view of clarity, it was sufficient to show that the effective decision of dismissal was that of the Board. Moreover, no resolution was necessary, as the Divisional Court thought. I do not think it necessary to take any issue with Brooke J.A. on the facts or evaluation of the evidence. Plainly, since the Board did not tell Proctor that he was discharged, the latter was entitled to believe that he had been discharged by the chief of police. The latter had no power to do so. The power of dismissal was vested exclusively in the Board by s. 9 of the collective agreement. A constable is not so lightly to be deprived of his status, as was the case here, and by an unauthorized act.

Thorson J.A., who agreed in the result with Brooke J.A., was of the opinion that s. 29 of The Police Act exhaustively enumerated the matters which could be the subject of collective bargaining between the Board and the Sarnia Police Association. That provision, so far as relevant here, reads as follows:

29.—(1) A majority of the members of the police force may, where no agreement exists or at any time after ninety days before an agreement would expire but for section 36, give notice in writing to the council of the municipality or, where there is a board, the board, of its desire to bargain with a view to making an agreement or to the renewal, with or without modifications, of the

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agreement then in operation or to the making of a new agreement.

(2) Where notice has been given under subsection 1, the council of the municipality or, where there is a board, the board, shall meet with a bargaining committee of the members of the police force within fifteen days from the giving of the notice or within such further period as the parties agree upon and the parties shall bargain in good faith and make every reasonable effort to come to an agreement for the purpose of making an agreement in writing defining, determining and providing for remuneration, pensions, sick leave credit gratuities, grievance procedures or working conditions of the members of the police force, other than the chief of police and any deputy chief of police, except such working conditions as are governed by a regulation made by the Lieutenant Governor in Council under this Act.

…

It was the learned Justice’s view that s. 9 of the collective agreement went beyond the compass of s. 29, above quoted, and that it was not a “working condition”. Hence, it could not be relied on (as Brooke J.A. thought) to empower the discharge of a probationary constable without the Nicholson requirement of notice of reason and a fair opportunity to respond. However, Thorson J.A. concluded that Proctor knew why he was being discharged, that it was unnecessary to spell it out formally and that he had an opportunity to make a response. It seems to me that the opportunity allegedly given to respond was no opportunity when it was to a person, the chief of police, who, concededly, had no power to effect a dismissal. It is by no means clear that Proctor knew of the reason for dismissal at the time. The learned Justice does not say what the reason was, whether it was the fact that Proctor was with Archer when the latter was involved in a disturbance in a tavern, or whether it was the post facto assertion of the chief of police, made not to Proctor but in the chiefs evidence, and based on a report from others, that Proctor had lied under oath at the Archer hearing. Nonetheless, he concluded (in agreement with Brooke J.A.) that the evidence supported the view that the Board had made a decision to discharge Proctor and that it was an effective decision.

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This is a strange conclusion when the Board said nothing to Proctor, did not see him or have any correspondence with him and when, on the record, the discharge was effected by the chief of police. Madam Justice Wilson is on unassailable ground in her position that the Board could not fulfil its statutory function in respect of a dismissal when it did not even let Proctor know that his case was going to be considered. There was, in short, no effective discharge under the law.

Counsel for the respondent Board sought to rely on an assertion by Proctor’s counsel in refusing to let Proctor answer a question when he was being cross-examined on his affidavit. In the course of his objection, counsel for Proctor said, inter alia, “we are not challenging the merits of the dismissal”. The context, in the light of the entire statement, is clear enough, namely, that the relevant issue was whether the chief of police had the authority to make the dismissal. I see nothing in the point raised by counsel for the Board, a point not even taken in the Courts below.

I would allow the appeal, set aside the judgment of the Ontario Court of Appeal and restore the formal order of the Divisional Court, with the additional direction that Proctor is entitled to such status as he would have gained had he not been unlawfully dismissed. The appellant is entitled to costs throughout, but there will be no costs to or against the statutory intervener, the Attorney General of Ontario.

Appeal allowed with costs.

Solicitors for the appellant: McEachran & Associates, Sarnia.

Solicitors for the respondent: Rowan & Temple, Toronto.

Solicitor for the intervener: Dennis W. Brown, Toronto.