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