Police Chief’s Decision Returned for Review: Toronto (Police Association) v Toronto (Police Services Board)

In Toronto (Police Association) v Toronto (Police Services Board), 2015 ONCA 188 [Toronto v Toronto], the Ontario Court of Appeal (“ONCA”) considered the interaction between the collective agreement that governs the employment of police officers (“CA”), and the Police Services Act, RSO 1990, c P15 [PSA]. The question was whether a particular decision of the Chief of Police fell within the ambit of the CA. The arbitrator found that the order did not fall within the CA’s scope. The ONCA found this decision unreasonable. In so doing, the ONCA took part in the ongoing debate surrounding collective bargaining in the public sector.


At issue was an order made by the Chief of Police. He had instituted a policy requiring suspended officers to report twice daily at police headquarters. The content of the order could be characterized in one of two ways:

  1. It could be found to be subject matter that fell within the statutory prerogative of the Chief of Police, and therefore was expressly excluded by the PSA from collective bargaining. If this was the case, the subject matter could not be the subject of arbitration under the CA.
  2. It entailed the exercise of management rights, and therefore could be the subject of a CA grievance. In such a case, an arbitrator, under the CA, could respond to a complaint related to the order.

The arbitrator concluded that she did not have the jurisdiction to hear the grievance because the order’s content fell within the Chief’s exclusive scope of authority.  The Divisional Court found such a conclusion to be unreasonable. The ONCA upheld the Divisional Court’s decision.

The Analysis of the ONCA

The ONCA described the issue as such: “[t]he substance of the Order [was] either a working condition or an operational order” (Toronto v Toronto, para 46). The former is subject matter that, unless otherwise excluded by the PSA, falls within the scope of the CA’s resolution process. If the order is operational, then it is excluded from the arbitrator’s jurisdiction.

Operational or Not

The first issue considered by the ONCA was “whether the dispute concerned the public duties of a police officer, public safety or emergency situations” (ibid, para 62). The arbitrator’s reasoning that the subject matter was operational was found unreasonable. According to the ONCA, her analysis was “at best conclusory” (ibid, para 66). While she clearly felt that the order, at least partially, involved regulation of the public duties of the officers, that fact, absent further analysis, was insufficient to exclude the CA regime.

Working Conditions or Not

The ONCA also felt that the arbitrator provided insufficient analysis on this point. “She engaged in no analysis … of why a reporting requirement for suspended officers cannot be a working condition” (ibid, para 68).

In essence, the ONCA took issue with the arbitrator’s conclusory reasoning. The Court of Appeal felt that it “effectively predetermined the outcome and lacked the thorough analysis that was required to resolve the jurisdictional dispute” (ibid, para 69).


This case stands as an interesting example of the tension that underpins the management of public sector unions. The Legislature, by limiting what can be bargained through the PSA, is reacting to the nature of the employment in issue. The police, being a key means of ensuring public safety and order, must be subject to oversight. However, police officers themselves also have a fundamental right to fairness. Their ability to bargain collectively cannot be abrogated more than is necessary to ensure public safety.

This tension underpins other decisions, and the very regulatory structure of police governance. In Toronto v Toronto, at paragraph 55, the ONCA recognized a passage from Durham (Regional Municipality) Police Services Board and Durham Regional Police Association (Re) (2007), 164 LAC (4th) 225 (Ont Arb Bd) [Durham] that summarized the issue:

[U]nder the Police Services Act, the parties must still meet to bargain their “working conditions.” However, there are specific limits on what is ‘bargainable,’ such as the stipulations that agreements and awards cannot affect the duties of police officers, hiring criteria, probationary periods, oaths of office and secrecy, political activity, legal indemnification, discipline complaints and the role of the Special Investigations Unit…The scheme is designed to allow for the Board, the Chief and the officers to protect the public and still allow for the negotiation of working conditions (Durham, at paras 69 and 73).

This case, and several before it, reflect the ongoing negotiation between police officers and their managers over what is and is not too important to be collectively bargained. There is clearly no bright-line test that can be applied in the case of police, or other unionized public sector employees. Each one plays an important and unique role in the fabric of society, and each issue is addressed case-by-case. As this decision shows, however, decision-makers must be clear in their reasoning when resolving this sort of dispute.

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