IN THE MATTER OF AN ARBITRATION

BETWEEN

The Toronto Police Association ("the Association")

AND

Toronto Police Services Board ("the Employer" )

And in the matter of the a number of grievances arising from the promotion process conducted by the Employer in the spring and fall of 2001.

BEFORE: R.O. MacDowell (Sole Arbitrator)

APPEARANCES:

For the Association: Michael Mitchell D.L. LeFaive Michael McCormack R. McIntosh M. Weatherill (and others)

(Counsel) (Counsel)

For the Employer: Michael Hines Maria Ciani Wendy Ryzek (and others)

(Counsel)

The hearings in this matter consumed all or part of some 36 hearing days, scheduled, on the agreement of the parties, between September 2002 and the end of October 2006.

INDEX TO THE AWARD

Page

I Introduction 3

II Plan of the Decision 22

III Background 25

IV The 2001 Promotional Rules 63

V Article 3.01 – the “standard of review” 78

VI Evidentiary observations: credibility and causality 101

VII Officer Pengelly 121

VIII The Core Values Question generally 154

IX Officer Marchen 167

X Officers Reid and Forestall 186

XI Systemic Challenges, and the “Quota allegation” 221

XII 41 Division: Officers Horner and Gautier 264

XIII SIS: Officers Burke, Josefobic, Christie and Perry 271

XIV 52 Division: Officers Boyce, Dunkley, Neisen and Greenaway 289

XV 11 Division: Officer Sondergaard 307

XVI Remedies 310

2

AWARD

I – Introduction : what this case is about in very general terms

The Grievances

This arbitration proceeding arises from a dispute between the Toronto

Police Association (“the Association”) and the Toronto Police Services Board (“the

Employer”) over the way in which the Employer conducted two “promotion processes”

that were held in the spring and fall of 2001. The Association claims that these promotion

processes were seriously flawed - both in conception, and in their application to

individual candidates; and that as a result of those flaws, certain candidates seeking

promotion were unfairly disadvantaged. A number those unsuccessful candidates have

filed “grievances” about the 2001 process; and some of those grievances are now before

me (certain other grievances were not pursued).

These grievors raise a number of different complaints about their quest for

promotion in 2001. However, for introductory purposes it is sufficient to note that:

• each grievance relates to the failure of the Employer to promote a particular officer, who sought to participate in one or both of the 2001 “competitions”;

• each grievor claims either (1) that s/he was wrongly excluded from participating in the promotion process, or (2) that s/he was unreasonably and unfairly evaluated for promotion; and

• all of the grievors assert that the Employer has exercised its power to promote "in a discriminatory manner or without reasonable cause”, contrary to Article 3.01 of the collective agreement (recorded below).

3

I have used the words “quest for promotion” in the previous paragraph,

because many of the grievors challenge only one aspect of the promotional process - their

“Unit Commander’s Assessment”; and that assessment is only one part of the Local Unit

Evaluation, which, in turn, is only one part of the Overall Evaluation. Accordingly, these

grievors would not necessarily have been promoted, even if their challenge to this part of

the screening process were accepted; and (as I will examine later) it is an open question

whether a different process would have yielded different information, or would have led

to a different opinion of the candidates’ relative ranking. And it is the candidates’ relative

position which matters for promotion purposes.

I will return to those issues in more detail below. However, for the

purposes of this introduction, (and given the number of different grievances that have

been put before me) I think that it is useful to divide the grievors into two broad

categories:

Category (1): those grievors who complain that they were improperly excluded from the promotional screening process altogether [i.e. they were ruled “ineligible” to participate in the 2001 competition for one reason or another]; and

Category (2): those grievors who were allowed to participate in the competitions, but now complain that they were evaluated improperly.

The “Category (1) grievors”, (Officers Reid, Forestall, Pengelly and

Marchen) were excluded from consideration in 2001 because of factors in their personal

history, which, according to the Employer, disqualified them from participating in the

promotion process (although, in a couple of cases, the officer got part-way through that

4

process, before being removed). For these four individuals, this “eligibility

determination” was the immediate cause for the denial of a promotional opportunity in

2001. Their grievances are fairly specific, and can be summarized quite simply.

*** Officer Pengelly challenges the new (in 2001) “rule”

which effectively prohibited disabled employees, occupying “accommodated positions”,

from participating in the 2001 promotion process. In 2001, such disabled workers were

ruled “ineligible” for promotion unless they were able to meet the Service’s “use of force”

requirements. So in 2001, disabled workers like Ms. Pengelly, could not compete for

promotion at all.

Ms. Pengelly claims that this new rule was “unreasonable” and

“discriminatory”, and was also in breach of the Ontario Human Rights Code. She

maintains that the Employer should have followed the practice that was in place in 1999,

when she also applied for promotion - which was to receive her application, evaluate her

along with the other applicants, and then figure out what to do, later on, if she otherwise

scored high enough, relative to others, to merit promotion. Officer Pengelly maintains

that she cannot be excluded from even participating, because of her disability.

*

The Employer denies those characterizations, and maintains that there

were bona fide occupational and organizational reasons for preventing disabled officers,

in “accommodated positions”, from participating in the promotion process. The Employer

says that there has been no breach of the Collective Agreement or the Human Rights

Code.

5

Officers Reid and Forestall challenge the determination that employees

who had outstanding criminal charges against them, could not apply for promotion. They

too, were ruled “ineligible” to participate in the promotion process; and they too, claim

that this determination was unreasonable and unfair – particularly since the charges

against them did not proceed; so that there was never any adjudication of their “guilt”.

These officers assert that they should have been allowed to participate in

the 2001 promotional screening process, and if they were otherwise successful in

showing their qualifications for a promotion in rank (achieving good exam marks, a good

evaluation from their Unit Commander, etc.), then such promotion could have been

deferred until the charges against them were disposed of. As they see it: they have lost a

promotional opportunity in 2001-2002, merely because the charges were laid – and

despite the legal “presumption of innocence”.

*

The Employer replies that its organizational interests would be

compromised if officers like Reid and Forestall were allowed to participate in the

promotional exercise. The Employer says that because of the outstanding charges, there

was a “cloud” [my metaphor] over their career and their integrity, which had not yet been

resolved, and which precluded any promotional consideration until it was resolved. The

Employer submits that these officers could not demonstrate adherence to the “Core

Values” of the organization (see below); and in the Employer’s submission, public

confidence in the Toronto Police Service (“TPS”) would be seriously undermined if

officers in that situation were seen to be seeking or “eligible for”, promotion.

6

*

The parties seem to agree, therefore, that unresolved criminal charges

should have an effect on an officer’s “promotability”, but they disagree on what that

effect should be (“deferral” vs. “denial”). Moreover, the situation of these officers is also

linked to the Association’s general complaint about the “Core Values” eligibility criteria,

which were added to the promotional equation in 2001. The “Core Values” of the

Toronto Police Service are listed in its 1999 “Mission Statement” as follows: honesty,

integrity, fairness, respect, reliability, teamwork, positive attitude.

*

The parties disagree on the role that these “Core Values” should play in

the promotional calculus, as well as how such criteria should be interpreted and applied.

The Employer maintains that the Chief and the senior management of the Toronto Police

Service have an overriding discretion to exclude from promotional consideration, anyone

who does not demonstrate these “Core Values” of the organization; while the Association

complains that these new eligibility criteria are simply too vague, and too subjective, and

too open to “abuse” – as, the Association says, happened in the case of Officers Reid and

Officer Forestall, and also in the case of Officer Marchen.

*

Officer Marchen was disqualified from entering the 2001 promotional

competition because, in his Unit Commander’s opinion, he (Marchen) had failed to

demonstrate the “Core Values” of: “honesty” and “integrity”- a position which the

Employer defended in this proceeding. There is some question about what this senior

officer actually took into consideration when making this determination; however, in the

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Association’s submission, the facts of the case simply do not support that conclusion.

Moreover, as the Association sees it, the “Marchen case” illustrates the way in which the

“Core Values” eligibility criteria can be misunderstood or misused - thus excluding good

officers from even a chance of promotion, and disregarding whatever else might be in

their history that might support their promotion (or at least the chance to compete for

promotion).

########## Those are the complaints of the four “Category 1

grievors”, who were excluded from the promotion process in 2001.

##########

The “Category 2” grievors (officers Gautier, Horner, Boyce, Dunkley,

Neisen, Greenaway, Perry, Christie, Josefovic, Burke and Sondergaard) do not complain

about “Core Values” or the Human Rights Code, or “eligibility requirements”. All of

these grievors were allowed to participate in 2001. Their complaint concerns the personal

evaluation that they received from their Unit Commander, who was required by the 2001

promotional “Rules” to give an “Overall Assessment of [the] Candidate’s Potential”, and

to assign each eligible applicant to one of the following categories:

• “competent” with “sufficient potential for success in the next rank”; • “superior” with a “high level of potential for success in the next rank”, • “exceptional” with “outstanding potential for success in the next rank”.

Each of these “categories” (competent, superior, exceptional) in turn, was further defined

(see below), and had a corresponding “point score” attached to it (5-10-15), while the

remaining 25 points available at the Local Unit level, were based on purely “objective

8

factors”, like length of service, or particular kinds of experience. The point scores for the

various items at the Local Unit Level were then totaled (out of 40), and then divided in

half, for consideration in the Overall Scoring Scheme (the total mark out of 100).

At the Local Unit Level, therefore, there was a possible 20 marks (out of

100) to be gained; and the Unit Commander’s personal assessment accounted for a total

of 7 ½ of those 20 marks – with the rest being assigned mechanically. In the result, under

the established weighting scheme, an individual who was rated by his/her Unit

Commander as being “exceptional”, would end up 2 1/2 marks (out of 100) ahead of a

candidate whom the Unit Commander rated as “superior”; and that 2 ½ marks might

“matter” in particular cases – especially since the Local Unit Assessment (worth 20%)

was combined with the Examination Score (also worth 20%), and then used as a

screening device to determine whether someone would get an interview, (worth 60 % of

the final grade).

The Association notes that in a close competition, the extra couple of

marks might make the difference between whether an officer got an interview or not - as,

of course, would the marks from any other source (e.g. a better examination score, or

more seniority, or having more varied experience). However, from the candidate’s

perspective, those 2 ½ marks were important. because every mark counts.

*

The “Category 2 grievors” challenge either their score itself [5, 10, 15],

or, more commonly, the process by which their ranking was arrived at. For example: the

9

Association complains about the “rigidity” of the categories (competent, superior,

exceptional: 5-10-15 points) without intermediate steps (no 8’s or 12’s); and about how

the Unit Commander came to decide upon who was “exceptional” vs. “superior” (what

he looked at, and who he talked to - or didn’t). There was also an allegation that there

was a “quota” of “exceptional” ratings, which unreasonably disadvantaged some of the

grievors, who claim that they “would have got a 15”, but for the “quota”. Likewise, it was

said that some grievors had their scores improperly lowered by a more senior officer, after

their own Unit Commander had rated them more favorably - shifting them from

“exceptional”, back to “superior”, with a corresponding “loss” of 2 ½ marks. And it was

said that in some cases, a Unit Commander improperly delegated certain of the

assessment functions for which he alone was responsible.

However, “first and foremost” (as Counsel for the Association put it in

argument) the Association complains that there was no fixed mechanism for funneling

“input” to the Unit Commander, from the candidate’s fellow bargaining unit

“supervisors”, (Sergeants or Detectives), who, the Association asserts, have vital

information about the candidates, which must be systematically considered by the Unit

Commander, before s/he can properly decide whether a candidate was “superior” or

“exceptional”. The Association complains that without such structured and systematic

input from these supervisory co-workers, the assessment is necessarily “unreasonable”

and illegitimate. It is a fatal and systemic flaw in the whole process.

10

The Association asserts that the immediate bargaining unit supervisor is in

the best position to evaluate a Constable’s performance, and that without a direct

discussion with that bargaining unit supervisor, the assessment of the candidate –

including his/her “potential” - cannot properly be made. Nor (according to the

Association) is the Unit Commander permitted to delegate the gathering of this

information to others, or to receive it indirectly; he must meet with the immediate

supervisor(s) himself. And, according to the Association, without a systematic way of

receiving this “necessary input” from the candidate’s co-workers, (essentially, a series of

local meetings with direct supervisors, held in the same way, in every organizational sub­

division of the Employer’s organization), the process of assessment will necessarily be

flawed - as, the Association maintains, was the case in 2001.

The Association also complains that there was no record of the Unit

Commander’s decision making process, so that there was no way that the Association

could verify the process that was followed, or easily challenge the outcome. There were

no instructions to take notes of what the Unit Commander did or considered. Which was

described inter alia, as a lack of transparency, which fueled a lack of accountability.

***

On this branch of the case, therefore, the focus is on how the Unit

Commander went about making his assessment, whether there has been a breach of the

collective agreement in that regard, and whether the grievor has been improperly under­

rated (receiving only 5 instead of 7 ½ marks, under this heading).

11

The Employer replies that, in each case, the individual grievor was fairly

rated – or more accurately, that in each case, the local manager had “reasonable cause”

for his opinion; so that there is no contractual basis for the employee to complain (see

below). Likewise, the Employer asserts that the overall process was “reasonable”, and

was not in conflict with the Employer’s contractual obligations. And, according to the

Employer: even if there was a flaw or “process problem” (which the Employer denies),

there is no reliable evidence to show that the result would have been any different – that

is, that an individual ranked as superior, would have been ranked as exceptional, if the

Unit Commander had adopted the Association’s preferred approach.

The Employer denies that there was any “quota” at all; and points out that

there were far more “exceptional” ratings than any arithmetically normalized distribution

or “quota system” would produce. According to the Employer, the “quota” was a myth –

created in part, because bargaining unit supervisors were reluctant to tell their Constable

coworkers, that they were not as good as they claimed to be. These supervisors

acquiesced in the rumor of a “quota”, in order to deflect criticism away from themselves:

it allowed them to say that the outcome was the result of a “quota”, rather than their own

tepid support for their unhappy co-worker.

With respect to “supervisory input”, the Employer says that there was no

requirement to have a face to face meeting with the immediate supervisor – another

member of the bargaining unit – or, in fact, to speak to that supervisor at all. As the

Employer sees it, the Unit Commander was free to get “input”, or to seek out

12

information, and come to his own “opinion” and recommendation, on whatever basis he

considered necessary – including his own personal knowledge of the candidates, or by

speaking to the Staff Sergeants (to whom the candidates also report), or via a reference to

the employee’s personnel records, which contain a wealth of information about the

officer’s career. Moreover, in the Employer’s submission, the local unit managers were

not obliged to go about doing things in exactly the same way; but rather, were free to act,

“reasonably”, in the situation in which they found themselves. For with a bargaining unit

of 5000 officers, spread over dozens of different stations and Divisions, and with

hundreds of candidates seeking promotion at the same time, there cannot be a “one size

fits all” approach. The Employer asserts that it is not practical to have some prescribed

and rigid set of meetings and participants – without regard to the nature or size of the

unit, or the number of candidates seeking promotion in that unit..

In the Employer’s submission, the 2001 promotional process does not call

for that uniformity, and neither does the collective agreement. Nor is it the arbitrator’s

role to construct “rules” that the parties have not negotiated.

The Employer denies that there have to be fixed rules or “meetings” for

the purpose of receiving “input” from the candidate’s co-workers, or that such “input” is

as significant as the Association says it is – or, indeed, that such “input” is even

necessary, as a matter of contractual obligation. In the Employer’s view, the Unit

Commander decides what s/he needs to know in order to express an informed opinion

about an officer’s relative performance and “potential” ; and so long as his opinion in that

13

regard is reasonable, then there is no basis for challenge. S/he need not do exactly what

some other Unit Commander does, in a different unit or station. Differences in approach,

are not, ipso facto, unreasonable or in breach of the collective agreement.

Similarly, the Employer contends that it was not unreasonable for a more

senior manager to review the work of the local Unit Commander, and to alter the result,

together, if they thought that it was appropriate to do so. It was also legitimate for the

Unit Commander to involve his second in command (or others, like “Staff Sergeants”) in

the information gathering process – particularly if that second in command or Staff

Sergeant had useful knowledge of the candidates’ relative merits or “potential”.

***

In each case, the Employer maintains that the process followed by the

senior officer was reasonable and appropriate to the setting, that the result was

sustainable, and that there is no breach of the collective agreement – nor any reliable

evidence that these grievors were under-rated.

***

In summary then, the Category 1 grievances deal with the eligibility

requirements for the 2001 promotion process, and the specific disqualification of Officers

Reid, Forestall, Marchen and Pengelly. The Category 2 grievances are mostly about

whether the process under the Rules, or followed by the local Unit Commander, was in

breach of the collective agreement; whether there was any demonstrable negative impact

on the employee; and if so, what should be done about that now.

14

The Collective Agreement

I will have more to say about the individual grievances later. However, I

think that it is worth recording, at the outset, that there are no collective agreement

provisions regulating how the promotion process is to unfold, or what criteria the

Employer is obliged to look at, or what the Employer is required to do when considering

employees for promotion, or what resources the Employer must devote to that process.

The only contractual lens through which these issues can be viewed, is Article 3.01 of the

Collective Agreement, which reads as follows:

Article 3 – Management Rights

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;

(iii) hire.

(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 the Collective Agreement or dealt with under the procedures within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services as prescribed by the Police Services Act.

(c) the Board agrees that it will not exercise any of the functions set out in this Article in a manner inconsistent with the provisions of this Collective Agreement or the Police Services Act and the Regulations thereto. [emphasis added]

15

The grievances before me, have to be considered in light of Article 3.01:

what it means, and what it requires, and what it forbids. Because the question in this case

is not whether the promotional process was “flawed” in some abstract way, or whether it

could have been done “better”; but rather whether the grievors are able to establish that

there has been a demonstrable breach of the collective agreement, resulting in a

demonstrable negative impact - and if so, what the remedy should be for such contractual

violation.

Thus, while in the course of argument the Association complained about

so-called “systemic issues” or a failure of “accountability” or “transparency” or

“acceptability” to the employees who are being evaluated, the agreement itself speaks of

“discrimation” and “reasonable cause”. Moreover, the clause seems to focus (at least as a

starting point) on a individual member’s complaint, rather than particular systemic

requirements – which is to say: on an individualized outcome or concern, rather than the

structure of the promotion process as a whole.

*

The parties appear to agree that the phrase “without reasonable cause” in

Article 3.01(b), imports some notion of “reasonableness” with respect to the way in

which promotions are considered, and may require the Employer to justify its actions.

However, the parties disagree on what the “test” of “reasonableness” actually means; or

how that test should be applied to the various grievances before me. The parties further

disagree on the extent to which an arbitrator, looking at a bundle of individual grievances,

can deal “prescriptively” with what are said to be “systemic flaws” in the process –

16

fleshing out Article 3.01 with a superstructure of non-bargained behavioral “rules”, that

have to be followed in order to meet that contractual standard. And as we will see later

on: it is not at all clear what the remedy should be if the process was indeed “flawed” (i.e.

in breach of the collective agreement), because it may be difficult to say what the effect

of such “flaw” actually was, or how to “fix the problem” now.

*** Be that as it may, the Association claims that, in each

instance, the Employer has contravened Article 3.01 (b) and (c) of the Collective

Agreement - and in the case of Officer Pengelly, the Ontario Human Rights Code, as

well. The Association does not quarrel with the TPS’s right to promulgate the “Rules”

under which the promotion process will be conducted. However, the Association

maintains that the Rules and their application must still withstand scrutiny under Article

3.01; and thus must meet a test of “reasonable cause” – and, in fact, that “reasonableness”

actually requires a far more detailed and explicit set of “rules” and processes, and not the

open-ended “flexibility” that the Employer urges in some areas.

Thus, for example, the Association’s says that the “Rules” promulgated in

2001 are themselves “unreasonable” and contrary to Article 3.01, because they lack a

systematic requirement to involve the immediate supervisor, personally, and in the same

way, with prescribed face to face meetings, held in each unit or Division – as happened in

1999. The Association asserts that such system of meetings is implicit in, and a necessary

requirement of, “reasonable cause”; and that even if this approach is not expressly spelled

out, it should nevertheless have been followed. And according to the

17

Association, the 2001 promotional rules also contain elements that are unreasonable per

se – like making adherence to the “Core Values” of the Employer an eligibility

requirement, or excluding disabled workers from participating in the competition.

The Association concedes that it may not be able to say that a particular

grievor would necessarily have been promoted if the system had been designed

differently (“reasonably”), or administered “properly”. Nor can the Association say, with

certainty, that the point score of a “Category 2 grievor” would necessarily have been any

different if the Unit Commander had gone about things differently. However, the

Association asserts that all of the grievors were dealt with “unfairly” and “unreasonably”,

and that, at the very least, they have suffered a “loss of opportunity”, which ought to be

rectified in some way.

***

The Employer denies these allegations, and maintains that all of its

managerial decisions were “reasonable” (i.e. that it had “reasonable cause”, per Article

3.01, for each of the managerial decisions under review).

***

The Employer asserts that under Article 3.01, the standard of

“reasonableness” / ”reasonable cause”, is an elastic one; and that an arbitrator should not

“second guess” decisions and processes, which, the Employer claims, were all well

within the “range of reasonableness”. Nor should an arbitrator construct a framework of

additional procedural requirements, when Article 3.01 contains no such thing; and,

instead, focuses on “reasonable cause” in an individual case. For in the Employer’s

18

submission, if the treatment of each individual was “reasonable” in the circumstances,

then that should be the end of the matter, from a contractual perspective.

The Employer submits that Article 3.01 is about whether there was

“reasonable cause” for the decision reached in each case involving each complaining

member – not a macroscopic review of the promotional “rules”, as a whole. Nor is it the

arbitrator’s job to construct a checklist for each Unit Commander to follow, when

deciding how to rate and compare, the employees for whom s/he is responsible.

The Employer emphasizes that what the Unit Commander was doing for

each of the grievors is expressing a professional opinion (who are the employees with the

very best performance and “potential” in my Unit), which the Employer says, is more of

an art than a science. In the Employer’s submission, there should be a large degree of

deference to that kind of evaluation - rather like an Appeal Court would give to a trial

judge; or the Divisional Court would give to an administrative tribunal; or, for that

matter, like the deference that police officers themselves would expect to receive from

the Courts, when their own professional judgments are subject to review on a

“reasonableness standard”.

In the Employer’s submission, that is what is required by Article 3.01 ­

which is, intentionally, non-prescriptive, and is focused on the situation and complaint of

the individual member.

19

The Employer submits that, given the variability of local circumstances,

Article 3.01 does not require every manager to go about doing things in exactly the same

way – or in the way that things were done in the past. Indeed, (according to the

Employer) one of the purposes of the revised 2001 promotional “rules”, was to give local

managers more flexibility. The Employer maintains that the local Unit Manager is not

obliged to have a face to face meeting with the grievor’s current bargaining unit

supervisor(s); but rather is free to gather information about the candidate, in whatever

manner he thinks appropriate. Indeed, depending upon the unit, there may be a number of

supervisors (past and present) who have useful information.

However, in the Employer’s submission, it is up to the Unit Commander

to decide whether and how to get the information s/he needs, as well as what “weight” to

be given to the “input” of bargaining unit co-workers. It is up to the Unit Commander to

determine what s/he needs to know, in order to make the broad distinctions between

candidates, referred to above: “competent”, “superior”, “exceptional” – “C”, “B” “A”.

Or put differently (and with Article 3.01 in mind): the test for “reasonable

cause” is not whether the Unit Commander spoke to the grievor’s immediate supervisor,

or followed some predetermined or rigid process of enquiry, but rather whether his/her

decision is objectively “reasonable” in the particular circumstances of each officer:

whether what s/he did was sufficient to make the determination (superior vs. exceptional)

a “reasonable” one.

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With respect to the eligibility requirements, the Employer submits that it is

not wrong to expect candidates for promotion to meet the existing “use of force”

requirements, because that is a bona fide occupational qualification for the new job to

which a successful candidate will eventually be assigned, if s/he is promoted in rank.

Similarly, according to the Employer: how can it be “wrong” to insist that applicants for

positions of responsibility within an organization, conform to the “Core Values” of that

organization: honesty, integrity, and so on? How can someone hold a position of

responsibility and leadership within the bargaining unit, without demonstrating such

“Core Values” ? And, once again, the Employer says that the question is whether that

determination, was reasonable in an individual case - not generally, or in some

hypothetical case that is not before me.

The Employer submits that I am not a “royal commission” charged with

the responsibility of refashioning the parties’ promotion process. Nor is it my job to

determine the best way of doing things, or to prescribe rules of behavior that the parties

have not bargained for in their collective agreement. Rather, I need only determine

whether in each individual case, the Employer has acted in compliance with that

Collective Agreement: whether there is reasonable cause, for what the Unit Commander

did.

***

That, in broad summary, is what this case is about.

21

II – The Plan of this Decision

The foregoing “overview” sets out the general dimensions of a dispute that

consumed a number of hearing days, and involved a number of different grievances and

issues. I will look at those complaints in more detail below. However, before doing so, I

think that it is necessary to sketch in some background about the Employer, some

background about how the promotion process works generally, and some information

about how the 2001 promotion process was a little different from what went before – as

well as why the Employer made those changes in 2001.

I will then comment on the “standard of arbitral review” (as the parties put

it in argument) of the managerial decisions that are here under consideration – which is to

say: what I think Article 3.01 means; together with some of the difficulties posed by the

way in which the evidence unfolded. For as I will discuss later on: the evidence put

before me in this case, is quite different from what one normally gets in promotion cases,

and that poses some problems of its own..

I will turn to the grievances themselves - beginning first with the Group 1

“eligibility cases”; then turning to the Group 2 grievors, who complain about the way that

they were evaluated by their Local Unit Commander.

With respect to the “eligibility questions”, I will consider the

Association’s general challenge to the use of “Core Values” as eligibility criteria at all;

22

then I will look at the application of those Core Values criteria to Officers Reid, Forestall

and Marchen. I will also consider the grievance of Officer Pengelly, who was an

“eligibility case” of a different kind. Each of these grievors was denied an opportunity to

participate in the 2001 promotion process, and each of them challenges that exclusion; so

it will be convenient, to look at these cases together.

* I will then turn to the Group 2 grievances, which illustrate

some of the so-called “systemic complaints” that were raised by the Association, as well

as the particular process that the grievors’ Unit Commander employed, in order to come

to the conclusion (superior vs. exceptional), that most of the grievors are challenging.

Under this heading, I will also look at certain complaints that were not flagged in the

grievances specifically, but which only emerged from the way that the evidence

unfolded, and were later made the subject of argument.

The grievors will then be considered, briefly but individually, in

accordance with the Unit from which they come; because that is the way that the parties

structured the evidence and their submissions. There will necessarily be a degree of

repetition, because of the “layered” way in which the case was presented – mixing

systemic elements and challenges, with the way in which the promotional process was

conducted at the Division level.

Finally, I will say something about “remedy” for those grievors whose

challenge I find to be valid.

23

It is neither necessary nor practical to attempt to reproduce in these

reasons, the voluminous material that was put before me over the course of a very long

hearing. Nor will I make much reference to the various case books that were provided to

me – cases that were (for the most part) not drawn from a police context, or that did not

involve a promotion process like the one now before me, or that did not involve

collective agreement language like Article 3.01. I have read those cases, and, where

helpful, I have made brief reference to some of them – as well as to some other cases,

that, in my view, help to put the present problem into perspective.

In what follows, I will attempt to distil the essence of the parties’

positions, and what I consider (having regard to Article 3.01), to be the proper disposition

of each grievance. I have focused on the words of the collective agreement, as applied to

the grievances before me; and I have not sought to compare, contrast, or distinguish the

other arbitration cases to which I was referred – which, of course, are not “binding” on

me, but are only “informative” in any event. (See Laurent Isabelle et. al v. The Ontario

Public Employees Union (1981) 81 CLLC p. 259 (S.C.C)).

I am grateful for the helpful submissions of Counsel, in respect of what

were, practically speaking, more than a dozen, different, individual grievances, that the

bargaining parties have chosen, for their own reasons, to consider together.

24

III - Some Background

The Toronto Police Service (TPS) employs roughly 5000 officers,

working in more than 50 units or Divisions of various types, scattered across the City.

Some of those units are relatively small - like the Canine Unit or the Marine Unit. Other

organizational sub-divisions are very large - like downtown Division 52, where there are

hundreds of officers, involved in a variety of work groups and law enforcement activities.

If the workforce in a local unit is relatively stable, then the officers who

work there may come to know one another fairly well, and there will be settled reporting

relationships. However, in some parts of the organization – again like Division 52 - there

may be considerable employee and supervisory/managerial turnover.

In the case of Division 52, that is partly because of its sheer size and

diversity, and partly because officers are routinely sent there for training, before being

assigned to duties elsewhere in the City. However as a result, the work assignments,

supervision, and scheduling at Division 52, can all be quite fluid; and there is a more

complicated matrix of assignments and reporting relationships than there is in smaller

units or Divisions, where things are more settled. The units or Divisions have different

characteristics, depending upon their size, location and function.

The Toronto Police Service is a large and complex structure, with

considerable organizational diversity; so that it is difficult to generalize about local

25

conditions in each unit or Division. However, insofar as the individual officers are

concerned, there are lots of opportunities for mobility from job to job, and unit to unit;

and the more senior the officer is, the more opportunity s/he will have had to work in

different locations, in different activities, and under different supervision. That trail of

experience is tracked in the officer’s personnel record, to which I will return in a

moment.

* The Toronto Police Service is organized in paramilitary

fashion, with working Constables and Detective Constables at the bottom of the order of

rank, and the Chief and Deputy Chief(s) at the top. In between, there are a series of

levels, like rungs on a ladder, to which officers seeking promotion may aspire.

It is customary for “police management” in the TPS to be drawn from the

ranks of those who have “worked their way up” within the organization; and, in that

regard, it is interesting to note that the ranking officers who gave evidence in this

proceeding, had generally acquired their senior position in this way. For example: Chief

Bill Blair and (former) Deputy Chief Steve Reesor both started their careers at the TPS as

Constables, (“at the bottom”) then worked there way up to the top of the organization.

No doubt that may result in a degree of insularity, because police

managers will have no other organizational experience. Their managerial skills have been

honed exclusively in this single, paramilitary setting. On the other hand, it also means

that the senior police managers will know the organization very well, and may also know

26

(or have had occasion to work with) quite a few of their fellow officers within the TPS, at

all levels. And they will almost certainly know the context in which those other officers

work in one unit or another, and perhaps some of their superiors as well. Because these

senior officers may have worked in various parts of the TPS themselves, and with others

of similar vintage who have risen through the ranks.

This institutional familiarity is also true for the Constables who have been

employed by the TPS for many years (the group typically seeking promotion); because

by virtue of their longevity, they too may have come into contact with various parts of the

organization and with those who are now ranking officers in the TPS. Once again, it is

difficult to generalize; but particular officers may know, or come to be known by, senior

officers. (For example: Bill Blair had worked directly with Officer Greenaway – a grievor

in this case - for about six months, roughly a year before the events here under review, so

that he was familiar with her background and her career aspirations). And of course, as in

any organization, there is a kind of “institutional osmosis” that cannot be discounted. Just

as someone may have a reputation in the community, or at the bar, or on the bench, or in

a law firm, s/he may also come to be known in the organization where s/he works – s/he

may “stand out” for one reason or another, either positively or negatively.

*

The bargaining unit represented by the Toronto Police Association

encompasses officers in the uniformed service and officers working as Detectives. At one

time, these two sides of the service were quite distinct. However I am told that these

distinctions are now less pronounced than they used to be, that there is now more

27

movement from one stream to the other, and that the Toronto Police Service has

encouraged this cooperation and convergence.

Both groups of police officers are involved in enforcing the law. They just

do it in different ways. On the "Detective side" the focus is on investigating crimes. On

the "uniformed side", the focus is on direct law enforcement and policing in the

community. However, both groups of officers work out of the various stations or units

mentioned above; and the officers on each side of the service will sometimes interact

with each other, and may come to know each other that way.

On the uniformed side of things, the bargaining unit encompasses three

levels of rank: Constable - Sergeant - Staff Sergeant; with the Sergeants having certain

supervisory functions over those Constables immediately “beneath them”, and the Staff

Sergeants, in turn, performing a similar supervisory and coordinating role with respect to

both Sergeants and Constables. There is a parallel structure for Detectives: Detective

Constable - Detective - Detective Sergeant; although Detectives typically work with a

single partner or in investigative teams, so that the coordination, mentoring and

supervision of Detectives and Detective Sergeants is a little different than it is for

uniformed Sergeants or Staff Sergeants. Detectives (equivalent in rank to “Sergeants”) do

not undertake the kind of supervision that Sergeants do. However, all of the officers in

these ranks are members of the bargaining unit represented by the Association; and thus

they are distinguishable from the higher levels of police “management”, who are

excluded from the bargaining unit.

28

*

For ease of reference, I will refer to the “bargaining unit” supervisory

personnel simply as “supervisors”, to distinguish them from the “managers” in more

senior ranks, who are outside the bargaining unit.

*

The work of Constables and Detective Constables is carefully monitored

and documented in a number of ways - most immediately and directly by the "supervisor"

in the next “rank” up the ladder (but still in the bargaining unit), but also by higher levels

of real “management”, (excluded from the bargaining unit) as the need arises. There are

concrete performance targets and “productivity measures” such as the number of arrests

made, or tickets written, or reports produced; there are disciplinary notations or

commendations if that has occurred; there are records of continuing education; and there

are also annual performance evaluations, which are intended to record how each officer is

doing, at the time of the evaluation.

The Local Unit Commander is responsible for what goes on in his/her

unit.

The annual evaluations are supposed to be done once a year. But it appears

that whether they are done on time or not, depends upon the efforts and concerns of the

officer and his/her immediate (bargaining unit) supervisors, as well as the priority that

each of them gives to this task. Likewise, the completeness or accuracy of the evaluation

may depend upon the effort that is put into it by the bargaining unit members involved;

29

because these officers are also engaged in ongoing policing duties, so that there are other

demands on their time.

I have used the word “supervisors” - plural – in the previous paragraph,

because Constables can move from shift to shift, or job to job, or station to station; so that

they may have a succession of different supervisors, depending upon their shifting work

assignments within or between units. Accordingly, over the course of the year to which

an evaluation relates, an officer can have different immediate supervisors; and that will

almost certainly be so, if s/he switches assignments or locations during that year. There

may also be different supervisors from year to year, and from evaluation to evaluation ­

especially if an employee moves around within the unit or the organization; so that

depending upon an officer’s assignment, a number of supervisors may come to know

about his/her performance. The length of time that an officer spends with each

supervisor, will depend upon the stability or the mobility of the individuals concerned.

*

The annual performance appraisals are typically done by the immediate

supervisor (for example Sergeant/Detective); then they are reviewed and “signed off” by

the next level up (Staff Sergeant/Detective Sergeant – also in the bargaining unit); then

they make their way up to the unit Commander (who may or may not record his/her

comments) for confirmation; and ultimately they are put into the employee's personnel

file. Since all of the individuals immediately responsible for the evaluation, are in the

bargaining unit and work together (which is why they have direct knowledge of the

officer’s day to day performance), these evaluations represent a kind of "peer review"

30

[my characterization], done by coworkers, that is then communicated up the line. The

senior officer signs off, when the evaluation is done, but does not necessarily agree, or

disagree, or intervene, or change anything.

However, these evaluations also have to be seen in context. For as all of

the Employer’s witnesses put it: while the immediate supervisors may be in the best

position to see what their coworkers are doing, from day to day, it is a different question

whether those immediate supervisors will accurately evaluate and publicly record what

they see (especially if it involves a lackluster or negative assessment); moreover, the

quality of the evaluation may depend upon the supervisor’s own skills and experience, as

well as the extent to which s/he will be prepared to be critical of peers, with whom s/he

has an ongoing personal or working relationship. Such evaluation may also be affected by

personal affinity or friction (e.g. one of the grievors in this case complained that he did

not get along with his direct supervisor); and with that in mind, it is probably better to

look at the pattern of evaluations, rather than a single one – which may also provide a

picture of the officer’s continuing development, and varied experience in the rank. And

of course, a senior officer may have a different view of an individual’s performance or

potential (which, be it noted, are different things), and may be in a better position than the

immediate supervisor to compare that individual with others in the unit – and also to

know what “policy considerations” are being considered at a higher level within the TPS

itself. Because, what the TPS is looking for in its future leaders can change. And by

virtue of their higher level in the organization, and demonstrated competence, the Unit

Commander necessarily has a different view, from the supervisor at the “platoon level”.

31

The format of the evaluation form in effect prior to 2001, encourages the

appraiser to be concrete. Thus, for example, the 2000 appraisal document says this:

“ Support your reading on the competency in the Supporting Evidence section by providing a behavioral example of the kind of behavior you have seen the officer perform. It is very important that you support each of your ratings with a behavioral example. This will make your rating fair and accurate".

The document then sets out a list of "core competencies" (achievement

orientation, analytical thinking, community focused/customer service orientation,

‘directiveness’, impact and influence, leadership, listening understanding and responding,

organizational awareness, teamwork, valuing diversity), together with some general areas

of ability (crisis management, legal knowledge, and investigative abilities), where the

officer’s performance is to be rated as “satisfactory”, “unsatisfactory” or “superior”. The

format also invites a listing of the specific tasks, unique to the employee’s particular job,

together with an evaluation of how that officer is doing in those areas.

This document is designed to give an annual snapshot of the officer’s

performance in his/her current job and rank. It does not measure “potential” for

performance in the next rank – at least not directly.

The evaluation document contains space for comments (as well as a

narrative to support the evaluation); and such comments may touch upon the officer's

career plans and suitability (in the appraiser’s opinion) for promotion. The Unit

Commander can also make comments, as can the employee himself/herself. And if the

32

officer wishes to do so, s/he may request an interview with the Unit Commander in order

to discuss the evaluation, or pursue any concerns about career development.

These evaluations – along with much else – eventually make their way

into the officer’s personnel file, which can then be referred to, and compared with other

personnel files, in order to determine how a particular officer is developing, and which

officers “stand out”. And I think it is reasonable to infer that a positive comment by a

senior officer may be given more weight by another senior officer, than a positive

comment by an immediate supervisor, working in the bargaining unit. In consequence,

how the evaluation “reads” “qualitatively”, will depend not only on what is said, but also

on who says it, and in what circumstances. Similarly, the personnel record as a whole.

The personnel files are voluminous, and become the repository for all

kinds of information about the officer’s career - both positive and negative - including

commendations of various kinds (typically initiated by supervisors and then confirmed by

higher ranks), along with notes of any compensatory time granted in recognition of

superior performance (i.e. not just a pat on the back, but the actual reward, if any, for

superior performance). There is also a record of service awards and congratulatory letters

from members of the public, and the “productivity measures” mentioned above.

These awards usually include a description of what the officer did to earn

them, so that the reader can not only "count" the number of commendations that an

officer has received over the years, but can also determine whether those commendations

33

reflect some exemplary individual initiative on the officer’s part, or alternatively, whether

the officer was being commended for being part of a successful team. The file also

contains records of continuing education, community service initiatives in which the

officer has participated, and so on.

In short, even if a Unit Commander did not know the employee

personally, and had no direct dealings with him/her in the course of his/her work duties,

the Unit Commander and his/her staff would still have access to a detailed review of the

employee's career – which includes numerous entries and evaluations from that officer’s

immediate (bargaining unit) supervisors, both recent and historical, as well as the input of

other superior officers, and various records of achievement. The officer’s application for

promotion can also contain whatever information the applicant thinks the decision maker

should see, in order to put the applicant’s candidacy in the best light.

Accordingly, for those who appreciate the significance of the material

recorded in these files, the documents will paint a fairly detailed portrait of the officer’s

development and current standing in the organization – individually and relatively. In

addition, a Unit Commander may have some personal knowledge of the employee, either

through direct contact, or indirectly via subordinates, or as part of his/her general

responsibility to manage the affairs of the unit - including signing off on the annual

evaluations, or the commendations, or simply following up on the myriad questions or

issues which might bring an officer to the Unit Commander’s attention in one way or

another (again, positively or negatively).

34

I was told, for example, (but only as an example) that criminal

investigations were often done on a group or project basis, with lots of strategizing and

analysis, undertaken within the confines of the station; so that the Unit Commander, in

that context, would quite likely come to know how the Detective Constables, Detectives,

and Detective Sergeants were doing, how their investigations were progressing, and

whether there was anything noteworthy about the contribution of particular individuals or

teams. And if not the Unit Commander, then his immediate managerial subordinates,

whose job includes keeping the Unit Commander informed.

It is difficult to generalize of course. But I do not think that one should

lightly conclude that a Unit Commander who is attentive to his/her job and the associated

paperwork, will know nothing whatsoever about the officers under his command ­

especially those who stand out, or those who are problems. Nor can one discount the

likelihood of at least some degree of institutional knowledge, that comes about when

people work together in a common endeavor, and within an organization with settled

reporting relationships. In that setting, it would not be surprising if a manager had at least

some knowledge of who the “up and comers” and the “problems” were, within the work

group for which s/he is ultimately responsible. But even if s/he did not, the written

records would be an important source of information, which contains the written “input”

from any number “direct supervisors”, and others, as well as a synopsis of the employee’s

career development and achievements, to date. That is what the written record is for.

35

Officers move from job to job within the organization, as interesting job

opportunities arise within their rank; and the evidence is that there is often quite a bit of

competition for such openings, as officers try to broaden their experience or secure a

desirable posting to a specialized unit. In this respect, these changing work assignments,

within the rank, may resemble “promotions”; because there is a “competition” to get

them, that is resolved on the basis of the applicants’ relative qualifications. Moreover,

one of the ways for an officer to increase the likelihood of promotion up the ladder in

rank, is to broaden his/her experience, or gain membership in an “elite unit”. Indeed, I

was told that membership in such “elite units” was, ipso facto, an indication of an

officer’s high caliber.

*

The current job - and how an officer gets there - may be an indicator of

his/her abilities, quite apart from the level of performance in that job. Likewise the jobs

that s/he has done in the past - or praiseworthy extracurricular activities for that matter.

*

All of these things are indicators of how an officer is doing, relative to

others, within the organization, and how his/her career is developing, and where s/he

currently stands. And they are generally recorded in the employee’s personnel files.

***

However, apart altogether from these transfers from job to job within the

rank, the Employer also conducts a generalized promotional competition every couple of

years, in which large groupings of officers are invited to participate, with a view to

promotion to the next higher rank. That is the process that is under review in this case.

36

Every two or three years (the frequency depends upon operational needs),

the Employer looks at its workforce projections (hiring, retirements, attrition), in order to

determine how many officers it is likely to need over the next couple of years at each

rank (Sergeant/Detective, Staff Sergeant/Detective Sergeant etc.). Then the Employer

conducts a global “competition” among those officers lower in rank, who may be

interested in promotion.

The Employer sets the number of positions to be filled, and how the

candidates will be assessed (exam, interview, etc.). Then there is a competition among

the applicants for promotion. Then the successful applicants go on a “promotional list”

(where they can stay for up to two years), from which they are later dispatched out, as the

need for higher ranking officers materializes.

I do not know the mechanics of this later job assignment process: how an

officer goes from the promotional list into a particular job. However, the idea is to create

a pool of qualified candidates from which the Sergeants (etc.) will be selected, as the

need arises; and for that purpose, there is an elaborate pre-screening process, which

allows those officers interested in promotion, to compete for promotion to higher rank,

and if successful, to go on the promotional list. Then as jobs at that rank arise, these

officers are transferred out, until the list is exhausted.

An individual does not get the perquisites of higher rank, until s/he is

assigned to a new job in that rank.

37

This global promotional exercise is quite different from what one normally

sees in a unionized setting, because the candidates are not competing for particular jobs,

as such, but rather for an elevation in rank. Moreover, the competition is conducted

system wide, and will therefore attract hundreds of individual applicants, whose claims

for promotion in rank will have to be assessed together, and in relation to each other, and

at about the same time, in more than 50 units or Divisions, scattered across the City.

Which means that the process involves hundreds of individualized but comparative

managerial assessments of the candidates, in order to determine who will ultimately go

into the promotional pool; and those assessments will be done, at about the same time, by

dozens of different managers and supervisors, in many different organizational settings.

For example, the two promotional cycles here under review, were

conducted, fairly close together, in the spring 2001 and late fall/winter of 2001-2002, and

they attracted a total of 1184 applicants (690 in the spring, and a further 494 in the fall).

These 1184 candidates had to be assessed for the purpose of filling the roughly 232

Sergeant/Detective positions, that were expected to open up in the subsequent two years.

It was a massive and time consuming exercise of sifting, and sorting, and

evaluation, undertaken by officers at all levels, who were obliged to take time away from

their primary responsibilities to engage in that task. It required a great deal of effort from

all concerned. That is clearly so for the candidates themselves, who had to complete the

application forms and study for the written examination; but it is equally true for the

38

dozens of supervisors and managers, at all levels, who had to take time away from their

regular policing responsibilities, to participate in these promotional exercises.

I will look at the 2001/2002 promotional “rules” in a little more detail in

the next section of this Award. At this point, I merely note that this was not the first time

that the TPS has conducted a global promotion process, involving hundreds of applicants;

and that the 2001 rules were based, in part, upon the experience of past promotional

processes where similar questions had arisen: what the Employer should be looking for;

how those qualities should be assessed; and how to complete the task in a way that is cost

effective – not an irrelevant consideration, at least from the Employer’s point of view.

*

Some of that history was provided by Superintendent Steve Grant, whose

evidence helps put the 2001 promotional process into perspective.

*

Superintendent Grant has been a police officer with the Toronto Police

Service since 1974; and from 1997 to 2003 he held positions of responsibility in the

Human Resources Department. Superintendent Grant testified that, over the years, there

have been different ways of conducting promotions, depending upon the perceived needs

of the organization at the time, and on the prevailing view of how best to select the

candidates who should be promoted (for example: what weight should be given to years

of service or investigative experience; whether to use examinations or interviews and

with what format and weight; what significance to give to past performance or

managerial recommendations; etc.). There are also choices to be made about the “kind”

39

of management that the organization is looking for: the particular “competencies” that the

organization requires at the time, and the extent to which the TPS should incorporate new

managerial techniques, drawn from public or private sector experience. And the changing

needs of the community have to be considered as well.

Managerial techniques and communities evolve; so that the qualities that

the organization is looking for in the 21st century, may not be the same as those of a

manager in the 1980’s – even though the paramilitary structure and generic law

enforcement tasks may not have changed very much. However, past practice is not

necessarily congruent with current organizational or community needs; and the skills that

current managers/supervisors have (or had to show to get their positions), may not have

the same weight today, that they used to have. The organization and the community can

change - as can the vision of senior management or the Police Services Board, about what

they want in a supervisor (especially given the way in which management develops at the

TPS, where subordinates work their way up the managerial ladder, step by step).

From Mr. Grant’s perspective, therefore, the promotional process has

always been something of a “work in progress”; and, in Mr. Grant’s view, there was no

unequivocal “right way” of doing things. Nor was there any selection method that would

command universal acceptance, or perfectly satisfy all of the competing interests

involved. It was a question of getting an acceptable balance – bearing in mind that there

would always be dissatisfied applicants regardless of the efforts expended by the TPS;

40

and bearing in mind, too, that such expenditure of effort was itself an issue that had to be

taken into account (at least from the Employer’s perspective).

For to repeat: this was not like a “normal” promotion procedure, where a

handful of applicants is competing for a particular job. The promotion process at the TPS

involves hundreds of applicants, and dozens of supervisors and managers, scattered

across a geographically disparate and functionally diverse organization; so that the

process itself requires a significant expenditure of time and administrative effort, at all

levels, and by all concerned, and at about the same time.

Mr. Grant explained that from the employee perspective, promotion was

viewed as a natural progression in an officer's career, even though it was unrealistic to

expect that any more than a portion of aspiring Constables would be promoted to

Sergeant, (roughly one in five of the applicants in 2001), and only a few of those could

realistically expect to be promoted further up the ladder. Nevertheless, according to Mr.

Grant, Constables who are good at their job, expect to be promoted as a matter of course,

and they are very disappointed if they are not – even though there may be numerous

similarly situated competitors for these positions, and even though being good at one’s

current job, doesn’t, in itself, guarantee promotion to, or success at, something else.

Against that background, some level of dissatisfaction is inevitable,

regardless of how the TPS conducts its promotion process; and according to Mr. Grant,

41

that has been the experience of the TPS, each time that promotions have been

contemplated.

The TPS is aware of these employee concerns. But “employee

satisfaction” is only one of the factors that has to considered in designing the promotion

system; and the system that best satisfies the employees or their bargaining agent, is not

necessarily the one that best meets the needs of the TPS. For example: the TPS is far

more concerned than the Association is, about the expenditure of management time

conducting promotions; and the TPS is also much less inclined than the Association to

give significant weight to the views of bargaining unit “supervisors” (Association

members), about which of their bargaining unit co-workers should be promoted. Indeed, I

think it is fair to say that “peer review” of this kind is far less important now than it used

to be – which is part of the Association’s complaint.

In the Employer’s opinion (and under the collective agreement),

“promotion”, is a an exclusive management function, and as the Employer sees it, senior

management are in the best position to determine the qualities that it is looking for in its

subordinate supervisors - from whom the leaders of the future will be drawn. Likewise

(in the TPS’s opinion), it is the Employer’s responsibility to determine what resources

can be sensibly and fairly allocated to these intra-bargaining unit promotions - and to

balance those demands against the other needs and priorities of the Police Service. For as

Employer Counsel put it in argument: the principle responsibility of the organization is

policing, not promotion; and the TPS is entitled to weigh the costs involved – particularly

42

when the collective agreement makes promotion an “exclusive” management right, and

provides no rules or criteria that the Employer must follow.

*

Mr. Grant testified that in the early 1990s there was very little promotional

activity because of budgetary constraints and the so-called "social contract" imposed by

the provincial government; so that by the mid-1990’s, the shifting needs of the

organization had produced a promotional back log that had to be dealt with. However, in

Superintendent Grant's view, the practical problem faced by the Police Service was not a

lack of talent, but rather the reverse: how to select the best candidates from the pool of

senior, experienced, and generally well-qualified officers, who hoped (and expected) to

be promoted - as well as how to deal with those officers who were very good in their

current position, but might not (in relation to others and at that time) have the particular

attributes that the Employer was looking for. For there will inevitably be hundreds of

unsuccessful candidates in any promotional round; and because of the way that the

promotion process is structured, those officers will all feel their disappointment at about

the same time.

*

According to Mr. Grant, these problems have surfaced in every

promotional process that has been conducted in recent years. However, some of the

concerns that surfaced in 2001 can be traced back to the late 1990’s – and a promotional

approach from which the TPS has subsequently been retreating.

43

In or about 1997, the Toronto Police Services Board (under Chair Susan

Eng), advanced what was then seen to be a radically different view of what the Toronto

Police Service required of its managers and supervisors, and consequently, how

promotions should be considered. The “Eng Board” was of the opinion that the TPS was

too hidebound and hierarchical, and far too wedded to traditional ways of doing things. In

that Board’s opinion, the TPS had to be more open, and more inclusive; and it also had to

be more attuned to modern management methods, and diversity, and the shifting needs of

the City.

The Eng Board was dissatisfied with what it regarded as an "old boys

network", whose customary promotional posture had produced managers very much like

themselves – and not necessarily persons with the managerial skills or sensitivities

needed for a large public sector organization, at the end of the 20th century. As the Eng

Board saw it: society and business organizations were changing, and the TPS had to

change too.

The annual evaluations, peer review, and promotional screening by

managers and supervisors of like mind and experience, were seen as too self-serving, too

restrictive, too conventional, and too likely to reinforce the status quo - particularly given

the constraints of an already authoritarian, paramilitary organization, with a long tradition

of promoting exclusively from within. There was a concern that the existing approach to

promotions would blunt innovation and change. And in the Eng Board’s opinion, that

44

was not the way that public sector organizations were supposed to be managed in the

information age: there had to be a departure from past practice.

The Eng Board sought to initiate structural and cultural changes, and to

encourage more diversity and mobility - for example, by eliminating the requirement that

an officer spend a set period of time at a particular rank before seeking further promotion,

and by permitting a talented officer to skip steps in the ranking ladder, rather than having

to move up, slowly, only one step at a time. And most controversially for present

purposes: the Eng Board sought to significantly reduce the influence of bargaining unit

supervisors and police managers, whose opinions and evaluations had formerly

determined the managerial complexion of the organization. Instead, the selection was to

rely more heavily on a written examination, together with "behavioral event interviews"

(BEI), which were to be the means for identifying an applicant’s “core competencies” (to

adopt the business school jargon that was then developing and is still in use today). There

was also going to be more reference to outsiders’ opinions.

In other words, in keeping with the concern that an "old boys network",

reinforced traditional views and structures, the views of bargaining unit supervisors and

management were substantially downgraded or excluded from the process. Past

performance (as gauged by insiders) and peer evaluations by bargaining unit supervisors

no longer had their former significance; because it was thought that they were too biased

in favor of the status quo.

45

This is not the place to discuss the utility or otherwise of these ideas. It

suffices to say that this approach intentionally excluded traditional supervisory and

managerial input, in favor of a written examination and a long (several hours) interview,

by a promotional panel that included outsiders. It was an attempt to depart from what was

seen as managerial self-replication. And not surprisingly, this change generated

considerable discontent among the employees - and the supervisors and managers whose

input and influence were being reduced. Because, it shifted control of the promotion

criteria and who would be promoted, away from the “grass roots” or Local Units, up the

ladder, to more senior managers, and to the Board itself.

Accordingly, re-introducing that local managerial input (who, how, and

with what weight) has been a continuing theme in subsequent promotional rounds,

including the one in 2001-2002. For, to some extent, the later promotional “Rules”

reflected a retreat from the approach that was taken by the Eng Board in 1997 – bringing

back the “opinions” of existing managers and supervisors, about which officers should be

promoted, but by the same token, structuring that managerial and supervisory “input”.

*

Superintendent Grant testified that over the years there have been a

number of modifications to the promotion process, as the Employer struggles to develop

a system that adequately measures what it is looking for, and that is also "workable" from

a practical point of view. The Eng Board’s approach was one of these; but there were

others as well. And the choices made, have operational consequences.

46

Mr. Grant explained, for example, that in 1998, when the Employer chose

to interview four candidates for each projected vacancy (the ratio is now much lower),

and followed the “behavioral event interview” (BEI) format (with interviews as much as

4 hours long), the Employer was required to conscript virtually every senior officer in the

organization, as well as many outsiders and Staff Sergeants; and it had to rent the Colony

Hotel for that purpose. It was a massive, expensive and time consuming job, that took six

months to complete.

This approach gave the individual candidate considerable attention and

considerable latitude to elaborate on his/her abilities. It was a very “personalized”

experience. But that attention came at a huge organizational cost.

As Superintendent Grant described it: preparing for and running the

promotional process along these lines, was a serious drain on resources, and other aspects

of the organization suffered. It was also difficult to achieve consistency with differently

constituted interview panels and outsiders; while the high number of interviews per

opening, produced an impressive number of unhappy candidates. Nor were many

members of the TPS sanguine about the (then) exclusion of direct managerial and

supervisory input, into who were the better candidates for promotion.

Furthermore, (to take another example) because the format of the

examination called for narrative answers that allowed a candidate to develop his/her

thoughts, it was very time consuming and difficult to mark the results consistently (there

47

had to be many markers); and because the process also permitted an “appeal” of such

grading, there were numerous appeals. The ultimate outcome seldom changed; but since

there was nothing to lose by appealing, the employees routinely did so. And that too was

a hugely time-consuming and wasteful process – which is why the Employer later moved

to multiple-choice questions with “cut and dried” answers, and eliminated the right of

appeal. [One of the complaints in this case – later abandoned – was that the candidates

were not give the ‘answers’ to the examination questions, and had no right to ‘appeal’ the

marking].

*

From the Employer's perspective therefore, these experiences of the late

1990s reinforced the need for a cheaper, more efficient promotional process, that was

more streamlined, less demanding of managerial time, and (perhaps) less likely generate

disgruntled applicants. There was a shift of emphasis towards expedition, ease of

administration, simplicity, and finality.

*

I might observe, parenthetically, that the views expressed by

Superintendent Grant in the course of these proceedings, were not solely his own

opinions; because after each promotional round, (including the ones in 1999 and 2001)

the Employer has conducted a "postmortem", to review how each promotional process

has unfolded, in order to consider what might be changed or improved. The purpose of

such “post mortems” was to evaluate the system, to identify problems, and to explore

solutions that could be incorporated into the “Rules” for the next promotional round ­

which is another reason why the system was described as a “work in progress”.

48

*

Superintendent Grant testified that the Association has been invited to

participate in these discussions. But it has declined to do so. And so far as he was aware,

there has been no effort to pursue promotional concerns at the bargaining table.

*

In any event, since the 2001 Promotional Rules were a reaction to some of

the problems that the Employer had encountered in the 1999, it may be useful to mention

a couple of those problems here. Because to some extent, the changes to which the

Association now objects, were an effort on the Employer’s part, to address the

“problems” (from its perspective) that it had encountered in earlier promotional rounds.

*

As I have already mentioned, under the "Eng Board”, managerial and a

supervisory (coworker) input were significantly reduced in the promotional decision

making process - which caused considerable internal dissatisfaction. Accordingly, in

subsequent promotional rounds, the Employer has struggled with how to reintroduce that

kind of “input”, and what weight to give to it – while at the same time, keeping in mind

the concerns about a self-replicating “old boys network”, and administrative efficiency.

In 1999, the promotional process provided for highly structured input from

a Unit Management Assessment Team (“UMAT”), which included the Unit Commander

and supervisors, who were required to meet and evaluate each officer's performance in

his/her current rank. The UMAT assessment documents did not focus (directly) on

managerial potential or likely performance in the next rank - although current

49

performance was obviously relevant to that question. Moreover, as Mr. Grant pointed

out: a good Constable or Detective Constable does not necessarily make a good Sergeant.

- they are different jobs, calling for different skills. And what the TPS may be looking for

today, could be different from what the organization stressed, some years ago, when

many of the more senior Sergeants were selected.

The UMAT system provided for structured input from bargaining unit

supervisors. However according to Mr. Grant, the utility of that supervisory “input” rests

upon a number of assumptions, including: that the supervisor will appreciate what the

organization is looking for, even if it is something different from himself; and that the

supervisor will reliably and critically sort out the better candidates, on that basis, even if

it means downgrading (relatively) other coworkers, or emphasizing factors that s/he may

not personally agree with.

Superintendent Grant testified that from the Employer's perspective, the

1999 UMAT was hugely cumbersome - involving, as it did, multiple meetings at the local

level between a Unit Commander and a constellation of bargaining unit supervisors who

constituted the team, evaluating particular officers. There were, in Superintendent Grant's

opinion, far too many meetings, involving far too much time, for the actual value added.

For not only did the participants in these meetings have other important policing

responsibilities to attend to; but depending on the size of the unit, there could be shifting

groups of supervisors who also had to be assembled and taken away from their regular

50

duties, in order to engage in this process. Yet at the same time, the TPS was short staffed

and under increasing pressure to get police officers out of the station and on to the streets.

Mr. Grant testified that this detailed and cumbersome edifice of

consultation, was an uneconomic and unnecessary expenditure of resources on what was

then - and is now - a relatively small component of the total scoring. (By way of

comparison: years of service now count for as much as the Unit Commander’s opinion,

varied experience counts for almost as much, and the examination and interview are

weighted far more heavily). In Grant’s opinion, a more streamlined and flexible approach

made more sense.

The other problem with the process of 1999 was the quality of the

“supervisory/managerial input”, and the evident reluctance of bargaining unit supervisors

and managers (including the Unit Commanders) to evaluate the candidates in a critical

way, that would meaningfully distinguish one from another. As Mr. Grant put it: when

the scale was 1-7, there were far too many “7’s”; and when the point score was out of 32,

almost everyone got “31” or “32”. Everyone was treated as “excellent” and ready for

promotion – with the result that the much demanded return to local “input” was distinctly

unhelpful.

According to Mr. Grant, the prevailing view at the unit level seemed to be

that "all of our officers are very good and deserve be promoted"; and when that attitude

was combined with the expectations of officers and supervisors, the attention paid to the

51

results in other units, and the scrutiny of anyone who was thought to be a "hard marker",

the result was “mark inflation”. In order to avoid controversy (and in the case of

bargaining unit supervisors - conflict with their co-workers), there was a tendency to

score individuals more highly, so as not to "disadvantage" them, in relation to each other,

and in relation to what was thought to be going on in other units.

Mr. Grant testified that under this system, far too many officers were rated

at the top of the scale – an outcome that, (according to Mr. Grant), was not unlike what

was typically found in the annual performance evaluations, which were also done by

bargaining unit supervisors. And that outcome significantly reduced the utility of those

assessments for distinguishing one officer from another. They downgraded the very

“input” that had been demanded.

Accordingly, (and paradoxically), the effort to put local supervisory and

managerial input back into the promotion process - while highly cumbersome, time-

consuming, and expensive - turned out not to be particularly useful. For having addressed

the complaints about the former process by means of the UMAT, the Employer was left

with an outcome that was not much different – so that the actual determinants for

promotion were the other factors: the written examination and the interview (still in

“behavioral event” format). Because (as Mr. Grant explained it) the local assessments did

not sufficiently distinguish the good candidates, from those who were truly exemplary;

and with a complement of experienced officers to choose from, it was the latter - “best of

the best” - that the TPS was looking for.

52

In the result, the actual value of the (much demanded) participation of

managers and bargaining unit supervisors, was significantly reduced – and not just for the

Employer. Because it also blurred the distinctions between the good, and the truly

outstanding - thus depriving the really exceptional officers of the benefit of a markedly

favorable managerial assessment.

*

Mr. Grant testified that the 1999 promotional post mortem was conducted

in conjunction with an organizational review that accompanied the installation of a new

Chief, and that after considering these various issues, it was decided to revamp the

promotion process once again. It was determined that instead of having a “team

approach” to evaluation, the responsibility for “rating” the candidates for promotion,

would be shifted more specifically to the Unit Commander. Moreover, the Unit

Commander’s consideration was to go beyond whether the candidate had been successful

in his/her current position, and would include a judgment about his/her “potential” in the

next rank (something different from what the annual performance evaluations did and

what had been looked at in 1999).

It was thought that this senior managerial officer was more likely to be

attuned to the needs of the organization, and was also more likely to make the critical

distinctions between candidates, that the Employer was looking for. S/he was also more

likely to be able to look at the candidates relative to one another; and s/he was more

likely to be sensitive to the winds of change.

53

Thus, there was an intentional shift away from "peer review”; and

according to Superintendent Grant, the Unit Commander was supposed to inject a broader

managerial perspective into the process, and to seek “input” for his determination in

whatever way he considered appropriate for the particular officer and in the

circumstances of his/her unit. For unlike the situation in 1999, there was no fixed

committee structure, shaping how the Unit Commander went about forming, and

informing, his opinion. It was the Unit Commander’s responsibility to make the

assessment of who, s/he considered to be “competent”, “superior” or “exceptional”; then

to be able to justify it, on the basis of the established definitional criteria.

The process was intentionally designed to be flexible, not prescriptive:

leaving it up to the local Unit Commanders to decide what additional information he

needed to express his/her opinion. It was not a "one-size-fits-all" model. Rather, the Unit

Commander was expected to seek out information in whatever way he considered

appropriate (file review, personal knowledge, direct enquiry etc.); and thereafter the Unit

Commander would bear the responsibility for the determination that s/he had made,

based upon that information received and the standards set out in the Rules.

It was neither expected, nor required, that each Unit Commander would do

exactly the same thing - although each unit Commander ultimately had to assign the

candidates into the same broad categories, in accordance with same standardized

definitions of what those categories meant (see below). The Unit Commander was

54

expected to do what made sense for his/her own unit – be it a small one like the Marine

Unit, or a large and diverse unit, like Division 52. There were no “hard and fast rules”.

This format did not preclude “input” from the immediate bargaining unit

supervisor(s) – or any other source of information for that matter. But according to

Superintendent Grant, it was up to the Unit Commander to decide whether, or the extent

to which, such supervisory “input” was necessary, and how to go about getting it, and

how much weight to give to it, once it was received. There was no formalized system of

meetings as there had been in 1999. It was not a ‘team approach’; nor were the

bargaining unit supervisors formally plugged into the structure of decision making.

The Employer’s evidence (from Mr. Grant and others) is that the Unit

Commander was not obliged to speak directly to an immediate bargaining unit

supervisor, if s/he thought that he could express an informed opinion without doing so, or

if s/he could acquire the necessary information for his opinion in other ways - for

example: if Unit Commander already knew the supervisor’s views from a recent

performance evaluation, or if he had personal knowledge of an officer’s exploits, or if

trusted subordinates could gather and give that information to him, or if the officer’s

paper record was so good (or mediocre) that further confirmation was unnecessary, etc.

Such “input” could be acquired in the manner that the Unit Commander thought useful,

so that s/he could be comfortable with assessment; because it was ultimately his/her

responsibility to separate the candidates into the three broad categories defined in the

55

promotional documents (roughly: “adequate”; “recommended” and “recommended

without reservations”).

* However, in one important respect, the unit Commander

was more circumscribed in 2001 than s/he had been in 1999. Because in order to

discourage the “marks inflation” that had been evident in the earlier promotional rounds,

the Unit Commander was expected to divide the applicants into three (and only three)

broad groups: “competent”, “superior” or “exceptional”, to which block marks would

later be assigned. Moreover that evaluation was to include an assessment of “potential”

for performance in the next rank, and not just past performance in the existing rank.

The Unit Commander’s opinion was only a small part of the overall

promotional calculus: a maximum of 7 ½ marks out of 100. And there was a strong

subjective component to it. But in making that choice, the Unit Commander was more

limited than s/he had been before.

In 2001 there was to be no sliding scale which, it was thought, had

encouraged an upward drift of marks. Instead, the Unit Commander was required to make

a kind of “forced choice” between broad categories. For at its most basic level, that is all

that the Unit Commander was being asked to do: s/he was being asked to identify those

officers who, in his/her opinion, really stood out, from those who, while good, were not

quite at the top. And this was necessarily a relative and somewhat subjective assessment -

although no doubt one based upon various kinds of information from

56

different sources, (some of which may also be subjective), which included the Unit

Commander’ opinion on “potential” going forward, and not just his/her perspective on

performance in the past.

*

I might reiterate here, that in the course of these proceedings, the

Association attacks a number of aspects of the 2001 system, including: the absence of a

sliding scale of marks; and the absence of a detailed obligation to get the direct input of

immediate bargaining unit supervisors, in a face to face meeting – as had happened in

1999. The Association does not agree with the “flexibility” accorded to local Unit

Commanders, and wants a much more detailed set of prescriptions, that will be applied,

in the same way, in every unit (essentially a series of compulsory local meetings. with the

candidates’ co-workers in attendance, as happened in 1999). Similarly, the Association

does not agree that the Unit Commander can entrust the gathering of information to a

trusted subordinate (thereby receiving it indirectly) – or even to the Staff Sergeant who is

also in the bargaining unit, and who one might expect would know which officers stood

out and which ones did not. Nor does the Association accept the Employer’s concerns

about cost, or efficiency, or the expenditure of management time.

*

Mr. Grant testified that when the Employer was developing the 2001

model, there was a discussion about "Bell curves” and “university marking systems”,

where there are ceilings or limitations on the number of “grades” in each category (e.g.

“no more than 20 % A’s”). Such arithmetic restrictions facilitate consistency across the

57

organization, and reinforce the value of the categories themselves. They inhibit “mark

inflation”, by constraining the numbers of individuals who can appear in the top category.

Arithmetic quotas require the evaluator to reserve the highest rankings, for

those few individuals who are truly at the top - giving concrete content to words like

“exceptional”. They are a tangible reminder that the purpose of the exercise is to divide

applicants into broad categories; and they provide an “amber light”: warning the

evaluator to be cautious when doling out high grades. And in the end, they enforce

consistency and produce a distribution that is actually useful; because they require

continuous internal justification for any significant departure from the norm.

However Mr. Grant testified that it was ultimately decided that there

would be no "quota" like that. Rather, it would be left up to each Unit Commander to

make the determination in accordance with local circumstances, having regard to

standardized definitions of what those terms (“competent”, “superior”, “exceptional”)

meant, and in light of the concerns about grade inflation that had been encountered in the

past. Unit Commanders were encouraged to produce an outcome that was better (and

more useful) than the one achieved in 1999; but there were no fixed limits on the number

of "exceptional" officers permitted from any unit, or across the system as a whole.

*

The new model for 2001 also a reduced the number of interviews (to three

interviews for every two projected openings), eliminated opportunities for appeal, shifted

the weighting to be given to the various evaluation components (local assessment,

58

examination, interview), emphasized the element of “potential”, introduced adherence to

the "Core Values" of the organization, as an eligibility requirement for promotion, and

excluded disabled officers who could not meet the “use of force” requirements that apply

to able-bodied officers. In 2001, the Local Unit Evaluation was combined with the

examination score, to create a screening device for the subsequent interview, which was

the most heavily weighted (60 %) of the assessment tools.

*

As is customary in the TPS, this new promotion policy was reduced to

writing and promulgated as an “Order”, so that all of the officers affected by it would be

able to inform themselves about how the upcoming promotion process was going to

unfold. There was a meeting for Unit Commanders to go over the new system, and

reinforce what the changes were designed to achieve (to make sure that all of them were

“singing from the same hymn book as a manager from SIS put it).

*

The changes from 1999 were readily apparent, but there was no immediate

complaint from the Association. Instead, the Association waited until the first round of

promotions in 2001 was completed, before filing grievances, challenging the new

approach.

*

Mr. Grant testified that, in his opinion, the 2001 approach did produce a

more useful grade distribution - as well as a lot more complaints, that began right after

the first round of promotions was completed. However, it is not at all clear that Mr.

59

Grant is correct in this regard - or that the “forced choice method” has produced a more

“useful” mark distribution.

In the first promotional cycle in the spring of 2001, there were roughly

equal numbers and percentages of officers considered "exceptional" and "superior" (277 ­

40% “exceptional”, versus 300 - 43.5% “superior”); and given the likelihood that only

the better officers will apply for promotion in the first place, that kind of distribution is

not unexpected, and (perhaps) not seriously inconsistent with the normal meaning of the

word "exceptional". The first iteration produced what the Employer was looking for – or,

at least, something that was different from earlier rounds, when the local managerial

assessment put everyone at the top.

However, by the time of the second promotional cycle in late 2001- early

2002 (but under the same promotional process), some 66% of the candidates were being

rated as “exceptional”, while only 29% were considered “superior” - a far different

distribution (and one that is not so easily squared with the category definitions, to which I

will return later). There were twice as many “exceptional” candidates as there were

“superior” ones.

One can only speculate (as Counsel did) about what produced that shift in

ratings. However it is beyond dispute that there is a correlation in both cycles between

being rated “exceptional” and eventually getting promoted; and it is also evident that an

“exceptional” rating at the Unit Commander level made it more likely (other things being

60

equal) that an officer would get to the interview stage. And of course, the more

“exceptional” ratings there are, (numerically and proportionally) the fewer officers there

are to complain about not being rated “exceptional”.

On the other hand, unless the Unit Commander’s assessment is seriously

flawed, one would expect that an exceptional officer, would also do well on the written

examination or in an interview, and that such individuals are more likely to be promoted.

Moreover, if a strong majority of the candidates are “exceptional” as was the case in the

second round of 2001, it is axiomatic (and arithmetic) that those who succeed, in the end,

are likely to have been so rated.

However, what is harder to analyze, is how any of these systemic changes

(or the complaints of the Association for that matter), would impact on the individual

complainant or system as a whole, because, in the end, it is the officer’s relative position

that counts for access to a fixed number of openings; and putting more candidates into the

exceptional category (as happened in the second promotional cycle in 2001), merely

means that the “relativity” will be measured and sorted out through other means – exam

scores for example. Because if the Unit Commanders do not meaningful distinguish

between those who work for them, something else or someone else will; and in the end,

the outcome will still depend upon how the officer is looked at, relative to others. The

less appetite managers and supervisors have to maintain the distinction between

“superior” and “exceptional” candidates, the less actual influence they will have on the

61

outcome, and the more significance will attach to other factors or means of measurement

– like written exams or interviews.

The importance of “relativity” cannot be over-emphasized here, because

all of the management witnesses emphasized that a Unit Commander’s rating of

“superior” was still a very good score, and that it did not doom a candidate’s promotional

prospects (although it might mean that a candidate had to do a little better on the

examination). A “superior” officer, in 2001 nomenclature is someone with “a high level

of potential” for performance as a Sergeant, so that, by definition, s/he was a good

candidate for promotion – and might well be promoted. But that is not the same thing as

saying (relatively speaking) that s/he is “exceptional” or “the very best” of the candidates

seeking promotion – which is what the “exceptional” rating was intended to capture.

Finally, if a highly rated candidate (be s/he superior or exceptional) scored

poorly on the examination, or lacked some other weighted element (like years of service,

or varied experience), then that deficiency could easily overwhelm the 2 ½ mark

increments that attached to the Unit Commander’s personal assessment (recall that years

of service counted as much, and experience almost as much, as the Unit Commander’s

opinion). And that deficiency might provide “reasonable cause” for denying a promotion,

quite independent of what the Unit Commander had to say about it – as, of course, could

relatively poor performance at the interview, for someone who otherwise seems

“exceptional”.

62

IV - The Promotional “Rules” for 2001

Since the contours of the 2001 promotion process are elaborated in the

documentation that was produced by the Employer in conjunction with that process, I

think that it may be useful to record some excerpts from that material here.

However, I think that it is also necessary to keep in mind what those

documents are, and what they describe – both contractually, and from an operational

perspective.

***

The 2001 promotional package, may be thought of by the Toronto Police

Service as “Rules” or “Orders” from above - that like other “Orders”, must be obeyed.

However, what these documents do, is express the Employer’s current policy with respect

to promotions, and how the promotional process should be undertaken. These documents

have no independent contractual force (other than as an exercise of “management

rights”); nor are they like the provisions of the Police Services Act, or the regulations

under that statute, which command compliance, as a matter of law, and which would be

read in accordance with the usual rules of statutory interpretation. Nor, in my view, are

they like the legal framework which would govern the operation of a statutory tribunal, in

the exercise of some statutory power of decision. They are materials produced by the

Employer, unilaterally, as an aspect of its exclusive managerial prerogative in respect of

promotions; and in my view, they have to be read in that light.

63

The 2001 Promotional Rules are an important part of the factual landscape

for this case. However, neither the stipulations of this unilateral “policy”, nor compliance

with those requirements, will necessarily meet the Employer’s obligations under the

collective agreement; and by the same token, the fact that a particular manager may have

departed from the “policy”, or done something that is not specifically spelled out in those

documents, does not necessarily amount to a breach of the collective agreement – or what

may be equally important: amount to a “ legal error” which so clearly (as a matter of

proof and causality) influenced the result, that some remedy is called for.

*

From this contractual perspective, therefore, neither of the institutional

parties will necessarily find shelter in the “strict terms” of the promotional document,

however important that document may have been in shaping how the process was

conducted.

*

The milieu in which police officers work, may tempt them pour over the

words and commas (no doubt like defense lawyers do in court) searching for “error” and

grounds for “appeal”. But, in my view, one has to be very careful about looking at these

policy documents that way. For not only is the managerial decision making process quite

unlike what a judge does in court, but as the Association fairly points out: the terms of the

policy itself may be flawed, as may be the execution of that policy; and both of those

things must survive scrutiny under Article 3.01 – and not just in relation to the policy

document itself.

64

The policy template does not necessarily answer the question of whether

there was “reasonable cause” (per Article 3.01) for what the Employer did in respect of

the promotion of a particular officer. Nor does it modify the terms of the collective

agreement.

Furthermore, as I have noted in the previous section of this decision: the

whole thrust of the 2001 policy was to inject more flexibility into the way in which the

Unit Commander comes to his/her opinion about “who is the best of the best”, versus

who is “very good”, but still not quite of “exceptional” potential. The intention was to

renounce formalized structures, to move away from peer review or co-worker consensus,

and to rely more upon the senior officer’s judgment, as the Employer does in so many

other areas of its operation.

It also purports to recognize the subjective, situational, and judgmental

nature of such assessment, by allowing the Unit Commander to go about it, in his/her

own way.

Now, it may be argued (as the Association did) that such built in

“flexibility” is itself in breach of Article 3.01, just as the Unit Commander’s assessment

of a particular officer may be subject to attack, if he went about it in a way that was

clearly unreasonable. However, I think that it is necessary to understand the Employer’s

objective (or starting point) when reading the documents that were meant to express it.

Because these are the Employer’s own documents, and not the product of consultation

65

with the Association. (indeed, the Association has declined to participate in such

consultation), and they are not the product of collective bargaining; so to the extent that

reference is made to them (what they say and what they don’t say), I think that it is

helpful to appreciate the Employer’s objective. And I do not think that one should lightly

“read in” to this process, restrictions that the Employer has not articulated or intended.

Moreover, I think that this also has to be kept in mind, when one is

considering document-based arguments with an “administrative law flavor”; for example:

that there was “improper sub-delegation” when a Unit Commander asked his second in

command to accumulate information about officers, or to participate in the process; or

that it was wrong for the Unit Commander and his superior to review what the Unit

Commander had undertaken, in order to ensure that the result was defensible and in

keeping with the expectations of the Employer. For, in each case there was the suggestion

that this practice was unsupported - expressly at least - by the policy documents, and thus

was illegitimate. Then on the other branches of the case, the Association challenges the

document itself, claiming that to follow it, would breach Article 3.01.

*

However, it seems to me that it is necessary to keep in mind that the issue

before me, is compliance with the collective agreement, rather than adherence to the

“Rules”, as such – let alone behavior that is not clearly contemplated, or regulated, or

foreclosed, or detailed by the “Rules”.

66

With these reservations then, I have set out below, certain excerpts from

the documents describing the 2001 promotion process. These excerpts include both

passages from the general description of that process, as well as passages from the

“forms” that were created to be guide the participants and record what they had done

(some emphasis added):

EXERPT FROM UNIFORM PROMOTIONAL PROCESS DOCUMENT 14-10

Rationale ... omitted

Governing Authorities…omitted

Associated Policies and Procedures …omitted

Forms…omitted

PROCEDURE

The uniform promotional process involves four (4) steps: application, unit commander verification/assessment, examination and promotional panel. In order to apply and be eligible for promotion, candidates must have conformed, presently conform, and continue to conform to the Service’s core values and beat all the eligibility requirements of the process. Failure to do so may result in the candidate being removed from the process and/or eligibility list.

A. APPLICATION

Minimum Eligibility Requirements

Police Officers may apply for promotion provided they:

• are a First Class Constable and have held the rank for a minimum of one (1) year on the date of application

67

• Have successfully met the requirements contained in the PSA Regulation entitled “Equipment and Use of Force” (Regulation 926)

• Have not been convicted of a criminal offence for which a pardon has not been obtained

i If a pardon has been received, proof of pardon must be provided

ii If a Conditional or Absolute Discharge has been received, proof that the records have been sealed by the Royal Canadian Mounted Police must be provided

• Have at least two (2) years with a clear discipline record from the date of any finding of guilt imposed by a hearing tribunal as a result of being found guilty of misconduct under the PSA [Police Service Act]

• are not the subject of an appeal against the penalty or finding of guilt imposed by a hearing tribunal with respect to misconduct under the PSA

o are not under suspension pursuant to the procedure entitled "suspension from duty -- Police Officer"

o have conformed, presently conform and continue to conform to the Services core values

Confirmation of Eligibility Requirements

Unit Commanders are required to confirm the eligibility requirements section completed by the candidate.

Application Form

Candidates shall include the following information on their application: awards, education, career summary, training, significant contributions/achievements.

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B UNIT COMMANDER VERIFICATION/ASSESSMENT RESPONSIBILITIES

The Unit Commander will verify the candidates eligibility to enter the process and complete an assessment for those deemed eligible, using the prescribed forms. The Unit Commander shall consider the following that when assessing a candidate: The prescribed competencies (as outlined in the Competency Dictionary); The Service’s core values; Experience; The skills and abilities; Contribution to the Service; Past and present performance; Potential to perform in the rank being applied for

NOTE: Should a candidate fail to demonstrate any of the competencies or core values, they may not be permitted to proceed any further in the process.

The Unit Commander may consult with the applicable Staff Superintendent or Director as required.

…

[Tasks assigned to the] Unit Commander

Upon receiving an application for promotion [the Unit Commander] shall review the TPS 818; determine whether or not the candidate meets the eligibility requirements as outlined in this Procedure; conduct an investigation into any previous misconduct to ensure that the matter(s) will not bring the reputation of the Service into disrepute; ensure the candidate has conformed and presently conforms to the core values of the service; complete TPS 814 and TPS 815, TPS 816,or TPS 817, as applicable; forward the completed documents to the appropriate Staff Superintendent/Director for review by the date specified on Routine Orders

[Duties of the ] Staff Superintendent/Director

After reviewing a candidate's application and associated documents, shall either Concur with the recommendations of the Unit Commander and forward the completed documents to the unit Commander -- employment for processing, or Return the documents to the Unit Commander for review or remove the candidates in the process after consultation with the applicable Command Officer

#############################################

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Excerpt from Unit Commander Candidate Assessment Score Sheet Form TPS 815 ...

Experience Score

LENGTH OF SERVICE x/15

GENERAL EXPERIENCE

Investigative x/ 3 … Non-Investigative x/ 3 …

OTHER EXPERIENCE x/ 4

Unit Commander’s Overall Assessment of Candidate’s Potential (Max. 15 points)

Note: Using the “Core Values” of the Service and competencies for the present and next rank as a basis to assess the officer’s potential considering, but not limited to, the following: input from supervisors; candidates personnel file; candidates application; past and present performance; loyalty, professionalism and dedication to the Service and the community; contribution to Service/Unit priorities; demonstrated leadership skills.

Select the most applicable rating** (see reverse for rating definition):

not eligible competent Award 5 points superior Award 10 points exceptional Award 15 points x/15………

TOTAL /40

Much of the debate before me (and much of the evidence) pertained to the

Unit Commander’s evaluation of whether an officer was an “exceptional” as opposed to a

“superior” candidate; moreover, it will be recalled that these ratings and their

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corresponding definitions were part of the “forced choice” options that were provided to

the Unit Commanders, in the expectation that they would induce a more useful separation

of the candidates into three distinct classes (bottom, middle, top). This is how the

promotion documents identify and define those categories (emphasis added):

Not Eligible: indicates the candidate is not eligible to compete in the process due to one or more of the following: has not met all of the eligibility requirements; has not demonstrated competencies at the current rank; has not met Service ““Core Values””; and does not consistently perform at the level expected for their rank; at this time does not possess sufficient potential for success at the next rank.

Competent: indicates the candidate meets all eligibility requirements, competencies, “Core Values”, and is consistently performing at a level expected for their rank. Candidate possesses sufficient potential for success at the next rank. [5 points out of 40]

Superior: indicates a candidate meets all the eligibility requirements, competencies, “Core Values”, and usually performs at a higher level than expected for their rank. Candidate possesses a high level of potential for success at the next rank. [10 points out of 40]

Exceptional: indicates a candidate meets all the eligibility requirements, competencies, “Core Values” and consistently performs at a higher level. This rating should only be given to candidates performing well beyond others in their rank. Candidate possesses outstanding potential for success at the next rank. [15 points out of 40]

As will be seen: apart from the reference to “Core Values” (to which I will

turn in a moment), the categories call for an assessment of the officer’s performance in

his/her rank, together with the Unit Commander’s assessment of an officer’s “potential”

for performance in the next rank . There is an effort to look backwards, in order to gauge

whether the officer has met or exceeded expectations, (and how

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consistently), together with a “prediction” or “opinion” about his/her “potential” in the

next rank (which presumably entails some kind of qualitative assessment, by the Unit

Commander, of the relationship between what the individual has done before, and what

s/he would be expected to do in the future, if promoted).

None of these words admit to precise definition, even though there is a

single number (5-10-15) later assigned to the category; for they are framed in terms of

“expectations” of performance in rank, consistency, and the potential for performance in

the next rank.

What does “usually” mean, and how is it different from “consistently”?

What frequency difference produces one label rather than the other? Where does one

shade into the other? What does “well beyond others” mean, and who are the “others”? Is

the reference point the Unit Commander’s own unit, or the system as a whole (50 or more

units or subdivisions); and if the latter, how does the Unit Commander know what is

happening in other units?

Moreover, how does the Unit Commander make a local determination that

is absolutely comparable to the opinions about “performance” and “potential” expressed

by 50 or more other Unit Commanders in other parts of the organization, so that s/he can

avoid the complaint that s/he is a “hard marker”, or that there are more “exceptional

scores” being given out in other units? In fact, is it a “bad thing” to be a “hard marker”,

given the origin and purpose of the forced choice categories? Or is it better to be an

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“easy marker”, so as to avoid employee complaints - but in full recognition that if

everyone else does the same thing, the much demanded “local input” will be far less

useful? And how does either colloquial label (“hard marker”, “easy marker”), if proved,

relate to the collective agreement? Is it a breach of the agreement to be a “hard marker” –

which is to say: someone inclined to strict construction of the definitions or someone

looking for very clear indications or relative excellence; or alternatively someone who

leans towards giving officers “the benefit of the doubt”?

It is perfectly plain that the definitions set out above, contemplate a

spectrum of performance and potential; and that the placing of a particular officer in a

particular category is a relative exercise, looking at how s/he is doing, in relation to

others. This is most obvious from the wording of the definition of “exceptional” (“This

rating should only be given to candidates performing well beyond others in their rank”);

but it is also implicit in the way in which the other categories are framed. And in each

case, the Unit Commander is required to express an opinion concerning a particular

candidate in relation to others, and to other officers in the rank (whether they have

applied for promotion or not?), and in terms of “potential”.

But the point is: it is simply not useful to pour over these words like a

Martian with a dictionary, trying to glean some precise meaning for concepts that cannot

be defined with mathematical precision, and that are inherently situational and subjective,

at least to some degree. And that is so, whether the category is described in words

(“exceptional” or “competent”, see above), or there is a numerical equivalent: “a 15” or

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“a 5”. Indeed, it seems to me that the assignment of a numerical value tends to obscure

the true nature of the judgment that is being made – by the individual Unit Commander in

each unit, and as between Unit Commanders in different units - because the number

suggests that such judgment is more precise and more calibrated than it is likely to be, in

practice.

Can one reasonably expect precisely the same result from each decision

maker in each unit? Probably not. But then again, one would probably not expect 50

judges to reach precisely the same conclusion from a particular array of facts or legal

concepts – for example: what “reasonable notice” means in a wrongful dismissal suit; or

what the precise sentence should be, for some particular scoundrel. For there, too, there is

likely to be a range of results, and a “range of reasonableness”, even though, in that

setting, the evidentiary rules and applicable legal structures are far more rigid and

rigorous than the management decision making process, here under review.

In any event, in my view, it simply wrong to expect rigorous consistency

or mathematical precision, from an exercise which cannot reasonably conform to

scientific norms. Nor is that the thrust of the Employer’s policy or objective: which, to

repeat, was to divide the candidates into three rather broad, rough and ready segments:

bottom – middle – top : competent – superior – exceptional; or put differently: those

whom the Unit Commander would strongly recommend, on the one hand, versus others,

who while competent, or very good, would command a less enthusiastic endorsement.

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And the top category is reserved for the comparatively smaller group (“well beyond

others”), whom the Unit Commander can endorse without any reservations at all.

* What is called for, therefore, is an informed professional

judgment by the Unit Commander, using these definitions as guidelines; and it is that

Unit Commander’s opinion, which must withstand scrutiny under Article 3.01.

##############

The “Core Values criteria” that were to be applied to each officer, were

not part of the document package, as such. They were drawn from the 1999 TPS

“Mission Statement”, which elaborated the human attributes and behaviors that were

expected of all employees of the TPS. This is what the 1999 “Mission Statement” says:

Mission Statement: “Core Values”

Honesty: we are truthful and open in our interactions with each other and with members of our communities

Integrity: we are honorable, trustworthy and strive to do what is right.

Fairness: we treat everyone in an impartial, equitable, sensitive and ethical manner.

Respect: we value ourselves, each other, and members of our communities; showing understanding and appreciation for our similarities and differences.

Reliability: we are conscientious, professional, responsible and dependable in our dealings with each other and our communities.

Teamwork: we work together within the Service and with members of our communities to achieve our goals, making that use of diverse skills, abilities, roles and views.

Positive Attitude: we strive to bring positive and constructive influences to our dealings with each other and our communities.

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This document is dated January 28, 1999, and was endorsed by the (then):

Chief of Police; the President of the Toronto Police Association; the President of the

Senior Officer’s Organization; the Chairman of the Police Services Board; and a

Community Representative. It spells out the “values” which are supposed to permeate the

organization, at all levels, and in all its dealings, internal and external. However, it was

not until 2001 that adherence to these “Core Values” was made an explicit “eligibility

requirement” for anyone seeking promotion to a position of greater responsibility in the

bargaining unit.

Under the 2001 “Promotional Rules”, the Employer (via its senior

officers) took the view that if a candidate for promotion did not adhere to, or

demonstrate, the “Core Values” of the organization, then the applicant was ruled

“ineligible” to participate in the screening process that evaluates individuals seeking

promotion. In this respect, adherence to “Core Values” was given paramount

significance: it “trumped” whatever else was in the officer’s record; and in the

Employer’s view, such default also made it unnecessary to consider anything else that

might be said in the officer’s favor.

In this sense, “Core Values adherence” was made an “instant disqualifier”,

“at the front end”: failing the “Core Values test”, meant immediate exclusion from the

process; and for the officers so excluded, it meant missing a chance for promotion in that

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promotional round. It meant that an officer would have to wait until next time – perhaps

two or three years – before being able to apply again.

The introduction of “Core Values” as eligibility requirements, was one of

the innovations introduced in 2001 (although I think it is reasonable to infer that these

factors may have also been considered in former iterations of the promotion process, even

if they were not elevated to the status of “eligibility requirements”); and as we will see

later on: the Association does not dispute that it is legitimate for the Employer to consider

these factors. The quarrel is about whether these character traits should be made

eligibility requirements (which is an argument about “weight” and “preclusive effect” ,

rather than relevance); and also whether the application of such criteria, in particular

cases (Officers Marchen, Reid and Forestall), will survive scrutiny under Article 3.01.

Because the Association challenges the “reasonableness” of using these factors as “front

end disqualifiers”, and the Association also challenges their application to the particular

grievors.

***

These were the tools and the Rules and the guidelines that were to be

applied in the two promotional cycles that were conducted in early 2001 – promotional

cycles and related decisions which must also meet the requirements of Article 3.01.

To which I now turn.

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V - The Collective Agreement - Article 3.01 and the “standard of review”

It is common ground that the Police Services Act does not regulate

promotions, and that the foundation for my jurisdiction to “review” promotional

decisions, is found in Article 3.01 of the Collective Agreement. However, as I have

indicated in the Introduction to this Award: the parties have different views about what

that clause means, or how it should be applied to the various grievances before me - and,

in particular, the extent to which Article 3.01 requires particular decision making

structures (who must be involved and how). Accordingly, I think that it may be useful to

outline what, (in my view), Article 3.01 seems to require, and also what it does not seem

to require - at least explicitly.

***

I should note, once again, that unlike the kind of “promotion clause” that

one typically sees in collective agreements, Article 3.01 does not identify any criteria that

the Employer is required to take into account when deciding whom to promote. Nor does

Article 3.01 identify the mechanism (who, when and how) by which relevant factors will

be ascertained or assessed (examination, promotional interview, personnel file review,

etc.). The clause is entirely silent about all of these matters, and, I am told, has been so

for over 30 years; moreover, there is no evidence that the Association has ever sought to

negotiate something that is more detailed or specific. And since the Association has

declined the invitation to participate in the periodic reviews of the promotional system,

these “post mortems” do not reflect any bipartisan consensus, that would provide a

reliable guide to interpretation.

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These periodic reviews are a useful record of the kinds of problems that

have been encountered in past promotional rounds, and they document what the

participants in those discussions thought about the system at various times. They also go

some way towards explaining how, or why, the system has changed. But they do not

determine the meaning of Article 3.01 - which has remained the same, throughout these

various iterations.

In the result, from a contractual point of view, I am left to glean such

enlightenment as I can find in the words of Article 3.01 itself, from the few arbitration

awards that have looked at promotion at the TPS, and, perhaps, from the way that

arbitrators have generally looked at promotion questions - bearing in mind that the kind

of promotional process here under review is very different (in form, scale and objective)

from what one would see in a “normal” job competition in an unionized environment. It

will be recalled that Article 3.01 reads this way (emphasis added):

Article 3 – Management Rights

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;

(iii) hire.

(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

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of a grievance under the provisions of the grievance procedure outlined in the Collective Agreement or dealt with under the procedures within the exclusive jurisdiction of the Ontario Civilian Commission on Police Services as prescribed by the Police Services Act.

(c) the Board agrees that it will not exercise any of the functions set out in this Article in a manner inconsistent with the provisions of this Collective Agreement or the Police Services Act and the Regulations thereto. [emphasis added]

***

The opening words of Article 3.01 note that it is the “exclusive function”

of the Employer to “promote” employees. That is the contractual starting point. The

agreement confirms that the business of promoting officers/member is the “exclusive”

prerogative of management – which, prima facie, is entitled to decide what it is looking

for, and also how to go about promoting such employees. The clause then goes on to

create a qualification: that the “exercise” of this exclusive managerial “function” must

meet a test of “reasonable cause” – a fairly common verbal formula that is found in a

variety of legal and legislative contexts.

Under this collective agreement, therefore, there is no negotiated "right to

promotion". Nor are there any negotiated “criteria”, or agreed “processes”, for promotion.

Rather, the subject of promotion is embedded in the “management rights” clause, as an

ostensibly “exclusive” management function, that then is to be “exercised” in respect of

an individual member’s application for promotion. However, the Employer must have

“reasonable cause” for how it exercises its “exclusive” “function” to promote the

employee, or to deny a promotion.

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What the clause creates, therefore, is an independent Employer right to act

in connection with promotion, qualified by a residual right of individual review, on very

general “reasonableness” grounds; or, to turn the sentence around: if an unhappy member

plausibly asserts that s/he has been dealt with in a “discriminatory” manner or “without

reasonable cause" in connection with his/her promotion, then the Employer may be

required to show that there was “reasonable cause” for the way in which management

has exercised its promotional powers, in that particular case.

However, what that collective agreement clearly does not do – at least not

explicitly – is provide a detailed set of “rules” for how promotions will be regulated. The

exclusive function to promote is un-constrained by any negotiated guidelines –

procedural or substantive. Nor does Article 3.01 provide an obvious platform for detailed

arbitral prescription of what the general “rules” with respect to promotion “should be” ­

in effect, constructing a framework of “do’s and don’ts” that the parties have not

constructed for themselves. Because the cast of the language seems to contemplate the

assessment of “reasonable cause”, in response to a particular member’s complaint.

The form of language used in Article 3.01, gives a decidedly

individualized “flavor” to both the Employer’s decision and to the arbitrator’s task on

review – rather like disciplinary decisions, where similar “reasonable cause” language is

more typically found (an analogy to which I will return later). [Note that the right to

review is limited to the way “members” – individuals - are treated under (a)(ii) ].

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This is not to say that “procedural” or “systemic” flaws are irrelevant – or

that such flaws cannot result in decisions that are unsupportable on a “reasonable cause”

basis. And if the flaw infects more than one decision or affects more than one employee,

then more than one individual may have a ground for complaint. However, it seems to me

that the focus of Article 3.01 is on the way in which an individual member is treated, and

not primarily on the system as a whole; and that the outcome may be justifiable, in a

particular case, even though the process may have been imperfect or flawed in some way.

For example: a poor showing on the written examination may provide a sufficient basis,

in itself, for denying a promotion, regardless of how the officer performs on other aspects

of the evaluation mechanism; and, it may be evident in a particular case, that the outcome

would have been the same, regardless of any deficiencies in the assessment process.

On the other hand, given the way in which the clause is framed, [a

“reasonable cause” qualification on the “exercise” of a managerial “function”], it seems

to me that the contractual “justification” (“reasonable cause”) may be demanded either of

the criteria selected for decision-making or of the way in which those criteria have been

applied to a particular candidate. Because both of those things reflect an “exercise” of

management’s promotional “function” in respect of that individual, and either of them

may provide the “reason” for the way in which a particular employee has been dealt with.

And in my view, under Article 3.01, both kinds of managerial decision must meet the test

of "reasonable cause", if that is the what is being plausibly challenged by the unhappy

employee.

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Or put differently: the residual “right of arbitral review” applies to both

the “bright line tests” used as “eligibility requirements”, and to other less specific norms

employed to reject candidates or to distinguish them one from another – since both are

manifestations of the “exercise” of management’s promotion “function”. Because, in the

end, there must be “reasonable cause” for the determination that has been made in respect

of the member’s quest for promotion, on whatever basis it has been made; and in this

respect, there must be a reasonable relationship between process and outcome.

But what do those elastic words ( “reasonable” or “reasonable cause” or

“discrimination”) actually mean in a setting in which there are no specifically negotiated

limitations on this management right ? What does one make of the contractual silence,

and the acknowledgement that the power to “promote”, is an “exclusive” function of

management ? And how penetrating should an arbitrator’s review actually be - given the

absence of such negotiated guidelines? Where does interpretation end, and rewriting the

agreement begin?

It seems to me that there cannot be a cut and dried answer to such

questions, and that when reviewing the managerial decision, an arbitrator should take a

pragmatic and functional approach. Pragmatic, because the adjudicator should be a

sensitive to the practical realities of the police organization (including organizational

diversity and competing claims for a managerial time and resources), and functional

because the arbitrator should also be sensitive to the functions that organization is

required to perform - of which internal promotion is only one.

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In my view an arbitrator must be circumspect in his assessment of the

parameters of promotion – not demanding of the Employer or employees, more than is

“reasonable”, in terms of “perfection”, and recognizing that it is the Employer that

decides what it is looking for to meet its organizational needs. For while there must be

some objective content to the term “reasonable cause”, one cannot ignore the fact that

promotion is contractually acknowledged to be the “exclusive” function of management,

or the fact that the agreement is non-prescriptive, or the fact that the Employer will have

its own interests to promote and balance.

I do not mean to diminish the importance of promotion from an employee

perspective. But employee interests are not the only ones in play; and promoting

employees is only one of many functions that management is required to perform - some

of which have a more direct and immediate impact on the organization's raison d'être,

than the “quality” or “transparency” or “acceptability” (to employees) of its promotion

processes (none of which words appear in Article 3.01). And in my view, absent

contractual elaboration, the TPS has the right to consider and balance those

organizational interests, as well as the disposition of resources needed for these purposes.

“Reasonable cause” or “reasonableness” require me to take into account the Employer’s

interests too.

The individual grievors will necessarily look at these issues through the

eyes of their own experience. However, I think that it is also necessary to bear in mind

that the process must “work” from the Employer’s point of view, and also, practically

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speaking, for the hundreds of other applicants, whose interests must be weighed and

evaluated, in some reasonably expedient manner. For although Article 3.01 seems to

focus on the treatment of an individual member, the setting necessarily involves hundreds

and hundreds of other members, as well as dozens of managers, doing roughly the same

thing, at roughly the same time.

Furthermore, however important promotion decisions may be for the

Association’s membership (and I heard evidence that they are very important), it cannot

be overemphasized that the collective agreement before me does not address that issue at

all, except in the very general way mentioned above; and the verbal formula found in

Article 3.01, permits the possibility of more than one acceptable or “reasonable” answer.

The notion of “reasonable cause” involves some arguable “range of reasonableness” – a

spectrum rather than a point on a scale; and in my view, that this is especially so for

complaints about how the process “should have been” structured, in order to comply with

this decidedly (the Employer would say, “intentionally”) non-prescriptive collective

agreement.

It seems to me that some degree of deference is therefore a necessary

consequence of the fact that the contractual test is one involving “reasonableness” in

respect of a managerial function which is stated to be “exclusive”, and which is not

limited by negotiated rules, and which involves the exercise of informed judgment by

numerous different members of management. In this respect, the terms “reasonable” and

85

“reasonable cause”, have a degree of elasticity - just as they do in other areas of the law

where those terms are used.

Under this collective agreement, therefore, it seems to me that the

Employer has a large degree of latitude about how it structures the promotional exercise;

and prima facie, it is free to stipulate both what it needs, and how it goes about meeting

those needs, in accordance with its own organizational imperatives. Moreover it is agreed

that although Article 3.01 has stayed the same, the promotional rules have varied quite

considerably over the years – illustrating that there are different ways of doing things,

none of which are necessarily “unreasonable”. Just different.

The collective agreement does not prohibit such variations, nor have they

been subject to much challenge at arbitration - or, it seems, the subject of any debate at

the bargaining table (at least on the evidence before me). And there is certainly no

contractual obligation to maintain the status quo, or to continue doing things in the way

that they have been done before.

In my view, any arbitral review of promotion issues under Article 3.01 has

to be cognizant of these organizational and contractual parameters; (and silences) and that

allegations of "process deficiencies" have to be viewed realistically, and in light of the

organizational context - which may put practical limitations on the resources that can be

devoted to this particular managerial responsibility, or that may make it difficult for every

local manager to go about doing things in exactly the same way. Such organizational

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realities may also put limitations on the attention that can be paid to elements of the

process that have only relatively minor weight, in the great scheme of things – especially

when the collective agreement does not prescribe how the process is to be structured, or

what the Employer is required to take into account. Nor is such institutional economizing

of effort unknown in the legal world, where the processes of a “small claims court” or an

administrative tribunal may be much more “rough and ready”, than those expected in a

criminal trial, where the liberty of the subject is in issue.

***

It seems to me that process is properly shaped by the setting and by the

nature of the decision making that is required; and there is nothing in Article 3.01 which

stipulates (at least explicitly) that this managerial function is “quasi judicial” in nature, or

that is must be exercised as if it were: that deciding whom to promote and how, should ­

from process or structural point of view - be undertaken as if it were the same as running

a hearing, or deciding responsibility for a tort or crime, after some sort of “trial”.

***

In approaching Article 3.01 it is tempting to look at how courts decide

things – as arbitrators, (being mostly lawyers) are wont to do. And in the course of

argument, the Employer drew upon “judicial references” – arguing, for example, that the

deference that an arbitrator should give to managerial decision making under Article

3.01, was analogous to that shown by a Superior Court, when reviewing the work of an

administrative tribunal, on a test of “reasonableness” (see the Ryan case, cited below).

And of course, the arbitration process itself, is run along quasi-judicial lines: hearing

evidence under oath, testing testimony by cross-examination, and so on.

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However, I think that these “judicial” and “quasi judicial” references have

to be used with some care, in respect of a managerial decision making process that did

not look much like what a judge does in a trial - or what an administrative tribunal does

when exercising some statutory power of decision. For what the Unit Commander was

doing when s/he was dividing applicants into broad categories, (the focus of much of the

attack in this case) was more like what a law firm does when deciding which articling

students to keep, or who should “make partner” (and when), or the profit-sharing “points

distribution”, than what a judge does when running a trial, or deciding guilt or innocence.

It was more like giving a reference, than adjudicating competing legal claims.

No one quarrels with the proposition that it is desirable that the

promotional process should be "fair". However, I think that one has to be very careful

about importing norms of “fairness”, or tools to achieve “fairness” (like “the rules of

natural justice”) from an entirely different legal setting – particularly when there are no

legal/process criteria established by the collective agreement itself, and there is nothing to

expressly require, in this area of decision making, some “quasi-judicial” exercise, like

that of a judge or an administrative tribunal. Because it is by no means obvious that the

common law rules of natural justice – familiar though they may be to lawyers, as the gold

standard for legal decision making - fit very well in this decidedly non-judicial setting.

For example: while “secrecy” in respect of “judicial” decision making is

very unusual, it is not so obviously unreasonable to maintain the confidentiality of exam

questions and answers, in order to preserve the utility of a testing system (an issue that

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surfaced in this case, but was not ultimately pursued). Nor is it so unusual that a person

may be asked to give a confidential assessment upon which the decision maker may act,

without revealing that opinion to the employee for the purpose of cross-examination or

rebuttal (whether that reference might have to be examined in later litigation is another

matter), because confidentiality promotes candor (clearly an issue in this case, given the

peer pressures to which the supervisors are subjected - see the “quota discussion” below).

Nor is a manager obliged (at least explicitly) to keep a written record of what was looked

at, or everyone whom he has talked to, as well as a transcript of what was said, so as to

facilitate a later, “review” or “appeal”. And the “input” that a manager receives when

making business decisions, may bare scant resemblance to the “evidence” that a Court or

tribunal receives when assessing a legal claim – not least because the manager may (and

often “should”) have prior knowledge of the situation upon which s/he is entitled to act;

and s/he may need to take the initiative to seek out further information, or not, as s/he

considers necessary. Which is not at all like what a judge would do when running a

“trial”, and adjudicating a legal claim.

In short, under Article 3.01 the test for the managerial decision making

process is “reasonableness” in organization context – not what the arbitrator thinks is a

better approach; and the benchmark is not “correctness” or perfection, or how a judge or

quasi-judicial tribunal might go about doing things. Nor should one confuse a departure

from “best practices” (i.e. the best way of doing things), on the one hand, with

“reasonableness”, or an absence of “reasonable cause”, on the other. And while it may be

easy to point to “flaws” in any complex human process, it seems to me that what matters

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is the significance of the flaw in relation to the outcome that the process was designed to

achieve – as well as the extent to which punctilious adherence to process has an

independent value, regardless of the outcome. (Note that even a “trial judge” is

sometimes permitted to make “errors”, so long as there has not been a demonstrable

impact on the outcome).

This is not to say that legal values and judicial ways of doing things, may

not have some part to play (if only by analogy) in informing how a managerial decision

should be taken; for after all, the collective agreement, does impose a legal standard, and

managers are required to comply with that standard: “reasonable cause”. However, I

think that it is important to keep in mind that running a business organization is not the

same thing as the administration of justice; and in my view, one has to carefully consider

the extent to which one model of decision making provides guidance for a very different

one – particularly when the agreement is noticeably silent on all of these questions.

It is also important to remember that management may have specialized

knowledge (based upon experience) of what they are looking for, and what is required of

a “supervisor”; and that there may be a range of “reasonable” choices that the Employer

can make along the way, as well as different - yet still “reasonable” - ways of achieving a

particular result. In my view, the content of “reasonable cause” permits such variation – a

least at the “macro” or “systemic” level. For as Employer Counsel fairly points out: there

have been different ways of going about making promotions over the years, with different

methods of testing candidates’ qualifications; and while some of these

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approaches might now seem to be better than others, one should not lightly conclude that

any of them were “unreasonable”. Nor is it the arbitrator’s job, to restructure the

promotion system - for example: to determine what the pass mark of an examination

should be; or whether too much weight has been given to an interview or service or

experience, and not enough to exam scores or to the candidate’s personal history.

An arbitrator is simply not well equipped to make those kinds of systemic

determinations, and should, at the very least, proceed cautiously in that regard.

It may be that a particular practice, or “decision making rule”, or outcome,

is clearly unreasonable, in the circumstances, and thus warrants arbitral reversal.

Deference does not mean disregard or indifference. However, in my view, the language

of Article 3.01, when read in context, envisages a “range of reasonableness”; and, in fact,

even in the judicial/quasi-judicial realm it has been recognized that the concept of

“reasonableness” involves some permissible variability of process and result. (See the

observations of the Court in Minott v. O’Shanter Developments Co. (1999), 42 O.R. (3d)

321 (O.C.A.) and compare Ryan v. Law Society (New Brunswick) [2003] 1 S.C.R. 247

(S.C.C.) where, in different contexts, the Courts have held that a test of “reasonableness”

permits some range of outcomes, and demands a degree of deference to the choice of the

decision maker).

*

Finally, insofar as individual promotional assessments are concerned, I

think that one has to frankly recognize that reasonable individuals can have different

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views about a candidate’s relative merits or strengths, and that an arbitrator may not be

well situated to choose between these alternatives (especially competing views about

degrees of professional competence or an employee’s “potential”). A mere difference of

opinion, does not make either opinion, “unreasonable”. And that is especially so, when

one is looking at opinions on the relative strengths of individuals who are inarguably

good candidates and who are all strong contenders (exceptional vs. superior) – that is,

distinctions on the margins.

For example: it is evident from some of the documents in the instant case,

that even when the Unit Commander chose to talk to bargaining unit supervisors,

(something the Association says the Unit Commander must do) those supervisors

sometimes had quite different views on whether a particular officer was “exceptional” (as

all of the grievors claim they were), or merely “superior” (as many of them were

ultimately described by their Unit Commander). Sometimes there was consensus; but

sometimes there wasn’t. And quite frankly an arbitrator may not be well placed to

determine which relative assessment is more “correct” (is he B+; or is he “really” an A?).

*

It seems to me therefore, that under Article 3.01, the appropriate arbitral

stance (or at least the starting point) should involve a pragmatic sense of restraint - both

in respect of individual determinations, and also in respect of system design as a whole.

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Having said that though, I think that there are some general comments

that can be made about the kind of decision-making process in which police management

“should” be engaged, when making promotional determinations, under Article 3.01.

* It is common ground, I think, that the Employer must act

in good faith, and cannot manipulate the promotion requirements for some purpose

unrelated to its legitimate business objectives. The selection (or rejection) criteria must

also be a reasonably related to the position in question, in the sense that it must be evident

that those candidates who have these attributes are more likely to be successful in the

position sought, than those who lack them. For while it may not be appropriate to put

such stated criteria (or their weighting) under a microscope, there must still be a plausible

and demonstrable connection between these decision making criteria, and the Employer's

operational interests.

The factor - whatever it is - positive or negative - must be demonstrably

related to the performance of the higher level job. Accordingly, if persons already

occupying that higher position, lack the stated “qualification” or possess the stated

“disqualifier”, yet they still manage to perform their job satisfactorily, then the Employer

may have to explain why it is that the factor in question has been given such significance,

or has assumed a prominence that it did not have before.

Similarly, in creating or applying those decision making criteria, the

Employer must not act on those for which there is insufficient evidentiary support, or

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insufficient demonstrable connection to the outcome to be achieved (or avoided).

Generally speaking, the Employer cannot act upon factors that are fanciful, or

speculative, or based entirely upon conjecture. The decision making criteria must be

grounded in operational realities, and must be susceptible to at least some degree of

“verification” or proof – even when there is a large subjective element involved (as there

almost inevitably will be, when someone is asked to make some form of prediction, or

express an opinion on a candidate’s “potential”).

***

These are the kinds of factors that arbitrators generally look at in

promotion cases, and in my view, that general arbitral approach is equally relevant here.

***

However, I think it that may also be useful to dwell, for a moment, on the

precise wording of Article 3.01 - and in particular, on the phrase without reasonable

cause". Because as other arbitrators have noted: that kind of language is more commonly

seen in connection with the review of disciplinary decisions; and it seems to me that the

use of that wording supports an approach that is at least “reminiscent” of the one

undertaken by arbitrators, when they are reviewing managerial decisions in respect of

discipline/discharge - where “reasonable cause” or “ just cause” language is more typical.

I am not suggesting that an officer’s breach of duty to his Employer

(which is what attracts discipline) is the same as the officer’s quest for promotion, or that

promotions and discipline are alike, or that the process of arbitral review will be

identical; but rather that the exercise of managerial decision making, has some

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similarities - including the individualized nature of the assessment (which in the case of

promotions in rank is then compared with other such individual assessments). Moreover,

the fact is: the “without reasonable cause” “test” found in Article 3.01(b) applies, on its

face, to all of the managerial decisions itemized in Article 3.01(a)(ii) - including

"discipline". These different managerial “functions”, (i.e. kinds of decision making ­

discipline, discharge and promotion), all sit together in the same clause; and they are all

subject to the same “reasonable cause” qualification/justification.

Given this constellation of words and their evident, ex facie, application to

disciplinary situations, I am not as sure as Arbitrator Devlin was in the Belgrade case,

that an arbitrator can so quickly reject "concepts” “applicable in disciplinary matters";

(her words) because, on the face of Article 3.01, those words “discrimination” and

“without reasonable cause”, DO apply to disciplinary matters – as well as to decisions

concerning promotions. In both cases the Employer may be required to demonstrate

causality: to show that it had “reasonable cause” for the decision taken in that individual

case. And, typically, that kind of decision-making requires some kind of balancing of the

competing interests at play: some kind of proportionality, or “reasonable” relationship

between action and outcome; between criterion and consequence, for that individual.

*

That is the kind of review that courts and arbitrators undertake when

infusing meaning into a "just cause" or “reasonable cause" review of business decisions

involving the discipline or discharge of individual employees; and I do not think that

there is anything incongruous in considering such approach here, when an arbitrator is

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called upon to review a promotional decision under Article 3.01, on a “reasonable cause”

test.

*

Furthermore, to the extent that a particular rule, or factor relied upon by

the Employer, has a disproportionately significant (or decisive) effect on the outcome,

then it seems to me that such factor may legitimately attract additional scrutiny, to ensure

that the resulting outcome is reasonably justified (i.e. that there is “reasonable cause” for

the denial of a promotion on that basis ). Not just that there is some reason for it, but that

there is a sufficient reason; not just that the deciding factor is “relevant” (rationally

connected), but that it is reasonable that it should be given such significant and decisive

weight in the context, and for that individual. And in my opinion, that is especially so for

factors (so-called “eligibility requirements”) that are said to “trump” everything else, and

that are also held up as the justification for not looking at anything else.

*

In my view, that is the effect of the words “reasonable cause” found in

Article 3.01. What is required is “reasonable cause”, and not just “connection” .

*

Article 3.01 requires an arbitrator to explore the relationship between a

decision and the explanation for it - “reasonable cause”; and in that equation, it seems to

be that the arbitrator can properly consider whether the one justifies the other. For it

cannot have been intended that some trivial (albeit relevant) negative factor will

necessarily provide “reasonable cause” for denying a promotional opportunity altogether

– any more than some relatively minor employment deficiency ipso facto provides

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“reasonable cause” for an employee’s discharge. Nor, looked at from the Employer’s

perspective, does some error on a manager’s part, ipso facto make the process or the

outcome “unreasonable” – let alone establish that the result would have been different

“but for” the alleged error.

From that perspective, therefore, it seems to me that it is permissible to

look quite carefully at “eligibility” requirements”, because of their decisive and

preclusive effect. They attract extra attention precisely because they may bear the entire

burden for the decision not to promote someone - or even to consider their candidacy.

And if they have such preclusive or determinative effect, then it seems to me that they

should be looked at fairly carefully – especially when some of these “eligibility”

requirements (“instant disqualifiers", as it were), are framed with a very high level of

generality (like “honesty”, “integrity”, “fairness” “reliability” “teamwork”, and so on).

Who can quarrel with the desirability of character traits such as "fairness"

or “reliability" or “integrity" or "honesty" or “teamwork”? Who would want a supervisor

(even one still in the bargaining unit) who was clearly “dishonest”, or who wasn’t a

“team player”, or whose actions were manifestly “unfair” or “insensitive”. Surely those

are relevant factors to look at in considering someone for promotion; and, in fact, the

Association does not say otherwise.

However, I do not think that elevating these factors to the level of

"eligibility requirements” relieves the Employer of the obligation to establish their

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“reasonableness” - as well as the “reasonableness” of their application in particular cases.

Because both of these determinations emanate from the exercise of the promotional

power; and that “exercise” must withstand scrutiny on a test of “reasonable cause”.

Showing that such general character traits are “rationally related” to the

Employer’s objectives, may be relatively easy to do, precisely because of the high level

of generality. However, showing that they supply “reasonable cause” for the decision in a

particular case, may require a more careful scrutiny of that particular case – especially if

a factor is being relied upon to prohibit an employee from even being considered for

promotion, and is also relied upon to justify totally disregarding all of the other evidence

about an officer, that might support his/her candidacy.

*

In any event, it is my view, that under Article 3.01, the process of

decision-making must be animated by an informed sense of proportion. “Reasonable

cause” means more than that the Employer has “a reason” for its decision – even if, (as I

believe to be the case) an arbitrator should give a degree of deference to what the reason

is, and to the weight that management has accorded to it. However, in my opinion, the

“reason” must also justify the outcome, and be objectively sustainable.

*

To be clear: it may be that a single “bright line test” (for example an

educational or experience requirement) is so obviously sensible that no one could quarrel

with it (although there might be some question of “equivalence”); and it also seems to me

that there is an independent organizational value - certainty - in having such “bright line

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tests”, even though they might have a preclusive effect in particular cases. Arbitrator

Devlin apparently came to that conclusion in the Belgrade case; and in my opinion,

clarity, simplicity, and ease of administration are all legitimate operational considerations

that the Employer may sensibly take into account in designing a promotion process.

Knowing the “rules” and having clear “rules”, are important for

management and employees alike. They tell prospective candidates where they stand, and

they serve as clear benchmarks that the potential candidates themselves can work toward.

They also protect against allegations of discrimination – which is also a value recognized

in Article 3.01. Conversely, having a test of “it depends” can lead to uncertainty and

inconsistency, (and litigation) even though it may permit a more nuanced consideration

of particular cases.

Nevertheless, it seems to me that when the parties have made the

Employer's individualized promotion decisions subject to review on a "reasonable cause

basis", then they have provided for a contextual individualized analysis and review: in

order to see not just whether there is "some reason" for the Employer's decision which is

not arbitrary or unreasonable, but also whether there was “reasonable cause” for the

particular outcome – a decision based upon reasonably justifiable criteria, and having

regard to whatever countervailing considerations are evident in that particular case.

Finally, in deciding what is “reasonable” and what constitutes “reasonable

cause”, it seems to me that there may be some value in looking at past practice or settled

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ways of doing things. History can inform the understanding of what is “reasonable” in

context; and so can determinations, judgments, or the reasoning of past managerial

decision makers who faced the same problems (which is what infuses stare decisis after

all) - while recognizing that new managers may decide to do things differently, and that

past practice is not a straight jacket.

A new approach is not “unreasonable” simply because it is “new”, or

because it advances a demonstrable Employer interest in a way that departs from past

practice. On the other hand, if an approach has worked in the past, it may be legitimate to

ask why it was necessary to change, and explore the “reason” for it.

Similarly, it may be relevant to consider the way in which the decision, or

the decision making criteria, fit within other legislated or contractual or societal norms –

which can also provide ‘clues’ as to whether a particular decision was taken “without

reasonable cause”. That too, may illuminate what “reasonable cause” means in the

context.

*

With that overview of Article 3.01, I turn to some particular problems that

arose from the way in which the evidence unfolded. Because a key issue before me is

whether there was “reasonable cause” for the conclusion that the Group 2 grievors were

not “exceptional”; and that, in turn, raises a factual question about what “exceptional”

means relatively speaking, and in practice, and not just as words in a definition.

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VI - Some observations on the nature of the evidence that was put before me

The grievors’ various complaints were put before me as a group, because,

from the Association's perspective, they arose in the same context and involved some of

the same issues. They also provided the backdrop for arguments about the 2001

promotion process as a whole (like the assertion that “Core Values” could not be relied

upon as an eligibility requirement, or that disabled workers like Officer Pengelly, could

not be prohibited from seeking promotion). And in this sense, the individual grievances

were “test cases”, and not just a means of seeking redress for the individual complainants.

*

The result, though, was a many-faceted piece of litigation, comprised of

both individual and global elements; and an adjudication process that extended over

many hearing days, and many months.

*

The hearings in this matter were scheduled on the agreement of the

parties, having regard to the availability of the hearing participants; and, as it turned out,

the proceeding consumed all or part of some 36 scheduled hearing days - beginning in the

late fall of 2002, and ending in the late fall of 2006. In the course of this protracted

proceeding, some of the witnesses left the employ of the TPS, and some of the grievors

were promoted (or at least were evaluated for promotion again) in subsequent

promotional rounds. In consequence, there was evidence about how some of the grievors

fared in their quest for promotion both before, and after, the challenged process in 2001;

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and that, in turn, prompted the Association, to refer to those other promotional exercises,

in support of its position that the 2001 assessment process was flawed.

Why (the Association asked) were the grievors more successful or more

favorably rated in these later competitions when, (it was asserted), there was no material

difference between their situation then, and in the impugned promotion processes of

2001? In particular, how could they be rated only “superior” in 2001, yet “exceptional”

not long afterwards? Similarly, how could some of the grievors achieve what was said to

be an excellent Unit Commander assessment in earlier competitions (especially in 1999),

yet “only” receive a “superior” rating in 2001? How could the TPS insist on the validity

of rigid categories and point scores (5-10-15), when in other competitions there was a

more flexible system, allowing for gradations? And how could “Core Values” enter the

picture, so decisively, as “automatic disqualifiers” in 2001, when previous Chiefs had

never elevated these factors to “eligibility criteria” before? And so on.

To which the TPS replied inter alia: that both the promotional rules and

what the TPS was looking for, will necessarily change, a little, in each iteration of the

promotion process, as the Employer learns from experience or clarifies its needs at that

time; or that the officer’s personal assessment was a little different earlier (in 1999) or

later on (in 2003), because the individual’s experience was a little different; or that the

assessment tool was different (e.g. looking at future “potential” in 2001, and not just past

performance in the rank, as was done in 1999); or that the spectrum of

candidates/competitors was different in later rounds, once the “best of the best” from

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2001 had been promoted (i.e. that with the departure of some leading Constables, others

could step into their place, and have the chance to shine); or that new managers were

entitled to introduce new methods or take a slightly different view, in light of the

difficulties that were encountered before, or in light of the shifting views about what is

important for a supervisor. And so on.

Thus, the Employer’s managerial witnesses explained that the Unit

Assessment done in 1999 for the 1999 promotional process could not be easily compared

with the 2001 scheme, because what was being measured was different (performance in

the rank only in 1999, and relative performance plus potential in 2001), AND that the

1999 scale was different as well - with the “exceeding expectations” category in 1999,

being roughly equivalent to “superior” in 2001 (not exceptional), and then only in

conjunction with the performance in the rank measurement, (not including an assessment

of potential). Moreover, as Mr. Grant (and others) emphasized: the marks in 1999 were

systematically inflated, and thus had to be considered with a skeptical eye. Indeed, the

effort to find the truly “exceptional”– those who truly stood out – in a field of very good

candidates, was one of the reasons for changing the former system which had clustered

too many people at the top.

From this perspective, it was said that all of the persons in the superior

and the exceptional categories in 2001 nomenclature would likely have “exceeded”

performance expectations in the 1999 schema; but that this would not dictate where they

would be placed on the different and elongated evaluation spectrum used in 2001. For as

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Inspector Keller (from 41 Division) and others explained: there was nothing inconsistent

in getting 32/32 on the 1999 scale, and only 10/15 in the 2001 format – which measured

different things in a different way. The fact that virtually everyone was rated superlative

in 1999 was part of the problem – not an indication that everyone was also exceptional in

2001.

Similarly, all of the managerial witnesses (and not just Mr. Grant) asserted

that the peer evaluations done annually had to be taken with a very large grain of salt;

that these evaluations tended to significantly over-rate an officer’s status; that they did

not capture the relativity that was being looked at for promotion (i.e. ranking in a

competition setting); and that they were not a good distinguishing tool at the higher end

(where both superior and exceptional candidates would be situated). Inspector Keller,

(who does the post-evaluation Counseling for the officers in 41 Division) also pointed out

the inconsistencies (the “human factor” he called it) between how different Sergeants and

Staff Sergeants evaluated the same Constable – observing, though, that the tougher

graders were probably more honest and accurate and fair to the process in which they

were engaged. But according to Inspector Keller these co-workers were still influenced

by the fact that they had to continue to work with the person whom they were evaluating,

and that their assessment missed the “bigger picture” that higher level officers and the

more panoramic promotion process was designed to elicit.

For example, the fact some one might be a very competent “loner” in his

current job, but not good at paper work or leading others, might not emerge from a peer

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evaluation of performance in the job, where the individual might be very highly rated; but

such matters might be very relevant to being a supervisor. Because the senior officers

were unanimous in their view that a good Constable does not necessarily make a good

Sergeant. And as Bill Blair observed: the personal disciple and dedication that officers

bring to their own job performance, is not necessarily the same thing as being able to

discipline others, or to hold them accountable, or to lead or motivate them, and so on.

Blair said that the TPS was looking for individuals who could assume these leadership

responsibilities, not just individuals with good work performance, at their own rank; and

that these qualities are better identified by senior officers, with the responsibility and

experience in developing those qualities.

Employer Counsel also stressed that the much discussed distinction

between a “superior” and “exceptional” rating, was really only a degree of difference

among admittedly good candidates; and that there were any number of reasons why a

candidate might look “superior” in one promotional round, and “exceptional” in another

one – especially if the decision maker, or the context, or the candidate’s experience, or

the “positioning” of the applicant in relation to others, or the measuring tools, were a

little different. And it was a degree of difference that was best gauged by the senior

manager - who saw the whole field and the whole record of all of the competitors in the

piece, not just a grievor, and who was therefore better situated than an arbitrator would

be, to see “who stood out”.

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In the result, much of the evidence put before me was aimed at

establishing or explaining or exploring the challenged “differences” ; and that evidence

ranged over quite a long time span: both before and after the challenged assessments in

2001.

*

However, from an evidentiary point of view, the way in which this case

unfolded, meant that the Senior Officers who had made the challenged assessments, were

being asked to recall precisely how and why they went about doing things, years after the

event; and, not surprisingly, those witnesses sometimes had only an imperfect

recollection of details that were not particularly noteworthy at the time. These managers

were confident that their evaluations were “reasonable” in the context in which they

made them; but they could not always remember the steps that went into making the

distinction that so troubled the grievors: superior vs. exceptional. For as the Employer

reiterated (as did the witnesses): the evaluation process has not only changed from cycle

to cycle, but it was partly a comparative exercise, in which the grievors were being rated

in conjunction with other competitors; so that it was sometimes difficult for the Senior

Officer to re-create that comparative process, or to recall the details of how he went about

soliciting the information (it is a bit misleading to call it “evidence”) upon which the

relative assessment was made.

For example, Staff Sergeant Smallbone, who was called by the

Association, had only a very hazy recollection of what transpired at Division 52 so long

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before – and frankly said so. Mr. Maher, also from Division 52, had been retired for

almost 2 years by the time he gave his evidence.

Furthermore, as I have suggested in an earlier section of this decision: this

exercise of managerial judgment was not like some quasi-judicial determination, where

"evidence" is weighed in some kind of "trial-like" process, that can be fairly re-created

with reference to a "transcript". “Managerial” decisions are seldom like that; and these

decisions were no exception. There was no “transcript”; nor did the Unit Commanders

keep notes of everything they did, or everyone they talked to, in order to get the “input”

that influenced their personal evaluation of the applicants’ relative position and

“potential” in 2001. The process was not like a trial, or even like a police investigation.

As a result, the sequence of events had to be reconstructed, long after the

fact, based upon the witnesses’ recollections, and such “process documents” as were still

available. And that process was necessarily imperfect.

Credibility

That said, I am satisfied that “credibility”, is not really an issue in this

case. In my view, all of the witnesses were trying, as best they could, to recollect what

had happened back in 2001; and to the extent that the witnesses’ recollections were

imperfect, I have tried to piece together what most probably occurred, from a

combination of the documents and the oral evidence that was put before me.

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Benchmarks for Comparison: what does “exceptional” really mean?

As I have already noted, the evidence from the Association and the

individual grievors involved an examination of their service records and, in some cases, a

comparison with how they had been rated in other promotional or work performance

evaluations. That information was then compared with how they were ranked in 2001,

with a view to pointing out alleged anomalies. And for the reasons mentioned above,

these temporal comparisons have to be looked at with some care, because there are any

number of personal and contextual differences that could explain the slight differences in

scoring that are here under review – especially since it is not disputed that all of the

grievors were very good officers to begin (with one exception, all of them were rated

“superior” in 2001). Moreover, from the Employer’s perspective at least, the 1999 scores

were overly inflated: everyone was at the top – which was a problem that the Employer

tried to fix in 2001.

*

However, given the grievors’ claim that they all should have been

considered “exceptional” (truly outstanding) and not just “superior”, I think that it is

worth recording that the kind of evidence that was put before me in this case, is a little

different from what an arbitrator typically gets in a “normal promotion case".

*

In a conventional collective bargaining situation, the collective agreement

prescribes a job posting process in which the applicants apply for a discrete job vacancy,

and the relative qualifications of the applicants can be fairly easily compared, one with

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another, in relation to that discrete "job" . Persons are measured against persons, in

relation to a specific job, and (normally), in relatively small numbers; so that there is

usually a fairly confined array of qualifications, and persons, for comparison purposes,

together with a written job description that can be used as a benchmark. The employer

makes its comparison and selection on that basis.

In the result, there are normally fairly clear parameters for decision

making, and also fairly clear directions for attack, if the union believes that the

Employer’s selection was wrong.

For example, in the “normal” job posting case the union frequently

compares the qualifications of the unsuccessful candidate (the “grievor”) with those of

the successful competitor; then tries to show that the qualifications of the “grievor”, are at

least relatively equal to those of the person who has been successfully promoted. The

union then argues that the employer has picked the wrong candidate, because the grievor

is at least as good as the person who has been selected: the employer has erred, because it

has given a different evaluation to persons who are, essentially, the same. Alternatively,

where the requirements for the job are clearly identified in a detailed job description, the

union will try to show that the grievor meets those requirements.

In a typical promotion case, therefore, persons are being compared with

other persons, in light of an established benchmark and a particular job; and if the

employer “got it wrong”, then the remedy to “put things right” is to put the grievor into

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the job instead of the (wrongly chosen) incumbent. Or alternatively, if the selection

process was seriously flawed, the remedy is to run the competition over again – “right”

this time. Indeed, if there are a number of employees in the competition, then the usual

remedy for a “flawed process” is to do the competition over again without the flaw –

partly because it is difficult to predict what the outcome would have been had the process

been done properly (i.e. it is difficult to predict how the flaw may have affected the

relative ranking of the various candidates), and partly because it is not the arbitrator’s

role to make that decision for management. Thus, in Falconbridge Nickel Mines Ltd. v.

U.S.W.A. (1972), 30 D.L.R. (3d) 412 (O.C.A.) the Court of Appeal held that the

appropriate remedy for a flawed process was to rerun the competition, because the

arbitrator did not have the authority to choose who should have been promoted.

*

However, the promotion process at the TPS is quite different from what

one sees in a normal collective bargaining setting, and the kind of information that the

Association put before me in this case was very different as well.

*

The promotion process under review involves an elevation in rank, rather

than a specific job or work assignment, and as a result, the criteria for evaluation are

more amorphous and subjective than in the typical job posting case (at least insofar as the

Unit Commander’s assessment is concerned). The Unit Commander is required to look

backwards over the course of the candidate’s career, in order to compare the candidate

with other officers in his/her class, then to look forward and make a kind of prediction as

to his/her “potential” for performance at the next level; and then to rank the candidates in

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the manner described: competent, superior, exceptional. It is an exercise in clustering;

and as I have already noted in a previous section of this decision: the definitions that the

Unit Commander was required to apply (competent, superior, exceptional), leave

considerable room for subjective judgment.

The bulk of the local assessment (12 ½ out of 20 points) is based upon

objective criteria like years of service or having identified kinds of experience. Those

items can applied mechanically. But the 2 ½ mark increments that the Association is

concerned about in this case, depend upon judgmental elements that are more difficult to

analyze or compare. For it was a comparative exercise, in which the Unit Commander

was engaged – judging the candidate’s own performance, in relation to others, and with

the added factor of “potential” thrown in. And the question was: “who really stands

out?”; “who is exceptional”? from an admittedly good field of candidates.

However, insofar as a comparison might be illuminating, (i.e. comparing

persons with persons) the Association did not make direct comparisons between any of

the grievors, on the one hand, and any officer who had been promoted or had been rated

exceptional on the other. Which is to say: the Association did not put before me the

qualifications and background of Officer X who had been rated “exceptional” or “a 15”,

so that s/he could be directly compared with Grievor Y, whom management had rated

differently: only superior. Nor, for the most part, did I hear from the grievors’

supervisors about their relative ranking – supervisors who, it will be remembered, the

Association claims have vital information, that has to be received by the Unit

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Commander, before he could make a valid judgment of the candidates’ status (superior

vs. exceptional). Even Staff Sergeant Mr. Smallbone, who was called by the Association,

was not asked to compare the grievors with those whom he and others had rated

“exceptional”, to see if his own rating would withstand scrutiny.

Thus, while each of the grievors claims that “s/he should have been

considered exceptional – “a 15” in numerical terms - the Association pointed to no actual

“exceptional” candidate with whom any of the grievors could actually be compared, in

order to see whether there was a material difference between them - even though the

Association had the scoring information, for all of the participants in the 2001 promotion

process, unit by unit.

Given the information that was available to the Association, it might have

been possible to illuminate what “exceptional” actually meant, and then compare the

grievor(s) to that standard, and to those officers who were rated “exceptional”, in order to

see whether there were meaningful differences between them – to see whether there was

a discernable difference between a grievor who claims to be “a 15”, and someone who

was considered by the Employer to be “a 15”. Or in the words of Article 3.01: to show

whether there was “reasonable cause” for the different assessment.

However, in the course of the Association’s evidence, there was no direct

comparison between a grievor claiming to be under-rated (only superior), and another

officer, from the same Unit, who had been rated by the Unit Commander more favorably

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(exceptional). There was no direct candidate to candidate comparison of this kind, so that

one could see what the spectrum of difference was, and whether there appeared to be

some “reasonable” basis for differentiation in scoring.

The Employer did put in some comparative evidence like that, showing

that some “exceptional” officers from the grievors’ units, appear to be better than the

grievors – at least on paper – thus warranting a higher, “exceptional”, rating. (This

material is found in what I will call “the green books”, to distinguish them from the “blue

books” that contained excerpts from the grievors’ service records). But there was no

comparative evidence of that kind from the Association, in respect of each of the

grievors. And to repeat: the Association knew who was considered “exceptional” in each

of the grievors’ Units; so that it was quite possible to pick one or more of them, for the

purpose of comparison – to test the grievor’s claim for “exceptionality” against someone

who was regarded that way by the Unit Commander. Nor did the Association spend any

time looking at the “green books” for the purpose of comparison – if only to discount or

discredit that comparison.

Instead, for each grievor, the Association put before me a detailed

recitation of his/her service accomplishments; then the Association asserted, in each case,

that an individual so obviously accomplished, should have been rated higher than the

“mark” s/he was given by his/her Unit Commander. I was also shown how each grievor

was rated in earlier (and sometimes later) promotion exercises, or on the most recent job

evaluations, and I was asked to draw inferences from that information – essentially, that

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the rating in 2001 (superior, rather than exceptional), was out of line, with these other

indications of what it “should have been”. And there was a great deal of evidence about

how the Senior Officer went about making his evaluation – “process evidence”, as it

were, which was intended to show that the procedure for making the assessment was

flawed in some way (and, as the Association put it: “unreasonable”- thus producing a

result that was “unreasonable” too).

And that “process evidence” is fine, so far as it goes.

However, as I have already indicated: there were simply too many other

differences to make earlier or later evaluations of the candidate reliable determinants of

“reviewable error” in 2001, when the range of distinction was relatively small to begin

with (superior vs. exceptional), and when there were any number of other small

differences which could plausibly explain the result. Moreover, without an “exceptional”

officer with which to compare any of the grievors, it is more difficult to say whether any

of these alleged “process failings” would have made any difference.

In other words: absent a fixed benchmark, it is difficult to connect the

alleged default, to a demonstrably negative outcome; and it is difficult for me to say, with

confidence, that any of the grievors were “exceptional”. For unlike the normal promotion

case, the grievors do not say, in effect “here is X who is objectively no better than me,

but who got a higher ranking than me”. It is simply said that there is a “flaw”; so that the

result might have been different. And the operative word here, is “might”.

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As I have indicated in the opening portion of this Award: it is very

difficult to say whether a particular grievor would have eventually been promoted if the

Unit Commander’s evaluation had been a little better, because the mark differential itself

is very small, and this challenged component of the promotion process is only a very

small part of the overall assessment regime. It is hard to say whether “but for” the alleged

error (and the 2 ½ marks that go with it), the ultimate promotional outcome would have

been any different.

However, in respect of the Group 2 complainants it is also very difficult to

say whether the Unit Commander’s score would have been any different, (i.e. the

grievors would have been considered “exceptional” and not just “superior”) if the

process had been run as the Association says it should have been; because I have little

evidence of what “exceptional” means in practice, other than the “exceptional” examples

selected by the Employer (which, not surprisingly, do not help the grievors’ case). And I

have no means of knowing whether those examples are truly representative. All that can

be said is that they are persons, from the grievors’ own Units, whom the Unit

Commander has rated more highly than the grievors; and no one spent much time looking

at them, or trying to see whether the difference stood up to scrutiny.

Moreover, leaving aside these individual assessments for a moment, it

should be remembered that all of the employees competed under the same system (flawed

or otherwise), so that, in the end, it is the officers’ relative positions that mattered, and

that gave them a shot at an interview. In other words, unless the alleged “process flaw”

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disadvantaged the grievors, but was neutral or positive with respect to their competitors

in the same process, then the relative results and the positioning would be the same. The

flaw – even a systemic one – would not necessarily alter the distribution, let alone the

result for particular individuals.

These issues might not matter very much if the objective of the litigation

was simply a declaration that the system was “flawed”, or if the Association were seeking

a rerun of the competition in whole or in part (the usual remedy for flawed selection

process): to do it again, right, in the units from which the grievors come. However, at the

opening of the case, the Association indicated that it did not wish to disturb any of the

ratings of anyone who had been rated more highly than the grievors; nor did it seek to

rerun the competition in the units from which the grievors came.

I appreciate the Association’s reluctance to advance the grievors’ claim, at

the possible “expense” of someone else – even though this was a competition in which

relative ranking would determine who would advance and who would not. But in the

result, the way the case unfolded raises additional issues with respect to the causality –

linking alleged process flaws and outcome; and it also raises issues about how to

evaluate, or remedy, the resulting “loss of opportunity”, which the grievors claim they

have suffered. And while each of the grievors claims s/he is exceptional, I do not have

much evidence (other than from the Employer), about what an “exceptional” officer

actually looks like (I was “personally” impressed by all of the officers that I heard from)..

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“Insider Information”

It was also evident that embedded in the information that was put before

me, there was quite a lot of "specialized knowledge" which an “outsider” would not pick

up, unless the significance was specifically flagged. For example, it was said that certain

"squads" are known in the TPS as “elite units”, and that individual officers only obtained

access to those elite units by means of a kind of a “competitive transfer” to which I have

earlier referred. Thus in connection with the “quota allegation”, I saw statistical

information of who got high scores (what people and what units); and more than one

witness testified that one might expect to see a higher number of “exceptional

employees” in certain components of the TPS organization, because Constables had to be

“pretty good” in order to get into that unit in the first place. Similarly, with respect to

commendations it was important to appreciate what the commendation was for (an

individual or team efforts), or what particular kinds of experience connoted.

Yet understanding these relevant weights, and the significance of

particular environmental experience, required a knowledge of organizational structure

and policing practices – just as it was necessary to know these things, in order to explain

why (it was said) some units had higher numbers of “exceptional” officers than others.

That is the kind of “specialized knowledge” that I referred to in Part V of this award ­

indicating why the manager’s assessment of such things was entitled to a degree of

deference for that reason; but it also underlines the subjective and situational character of

the assessment itself.

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Organizational Imperfections – the human factor

Finally, it was readily admitted that an officer was more likely to be rated

highly if his fellow bargaining unit members, (higher in “rank” but still in the bargaining

unit), were “promoting his promotion”, than if they weren’t. It was important to have the

existing Sergeants “on your side”. The opinion of these persons whom the union says

should significantly influence the promotion process (indeed, the union says it was

absolutely obligatory to consult them in a face to face meeting) were not necessarily

“neutral” in their evaluation of the officers with whom they worked – and might continue

to work, depending on the outcome of the promotional exercise.

It was suggested, for example, that one of the reasons why a candidate

may have been rated a little more highly in a later promotional round, was that his co­

workers had gotten behind him, and supported his candidacy in a way that they had not

done earlier – in other words, that an unsuccessful candidate could do better next time,

not only by acquiring additional skills, or experience, and not only because the better

officers had already been promoted earlier on, but also by encouraging more vocal

support from his supervisory co-workers.

Not to put too fine a point on it: personal relationships were also part of

the equation, in a system where bargaining unit members were being asked to evaluate

each other, for the purpose of promotion in rank; and that was also apparent from the fact

that some candidates seem to have been told by their supervising Sergeant that s/he (the

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candidate) had been rated more highly than s/he actually was by that same supervisor.

There was an apparent lack of candor as between co-workers, which goes some way to

explaining the belief that there was a “quota”. It was easier to say, “the quota is what did

you in”; rather than “ you weren’t as good as some of the other candidates, and I told

them so”. But it also illustrates that the personal relationships mattered.

It was further suggested that local Unit Commanders like to “promote

their own people” – which, I find may have influenced some of the managerial witnesses

to give some candidates “the benefit of the doubt” when it came to determining whether

they were “superior” (10 points) vs. “exceptional” (15 points). They were “easy markers”

– to use an academic metaphor; while others were more concerned to be “fair” to the

“real 15’s” (a view expressed by Bill Blair, who interacted with the Unit Commanders

under his purview, to ensure that the ultimate result was objectively defensible – that it

could be justified on the records).

It is also worth noting that Staff Sergeant Smallbone, candidly admitted

that when he was asked for his input about some of the Constables who worked with him,

he did not pay any attention to the actual definitions (“superior” and “exceptional”),

recorded above; but rather had his own notions about who should be promoted and who

should get an interview, and who should wait until next time. He was animated by the

result that he wanted, not by the definitions he was supposed to be applying. So however

carefully the Employer stipulates the criteria, there is simply no way to “get inside an

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evaluator’s head” and see whether he is really applying them – as Smallbone said he

wasn’t.

*

To be clear: this is not a criticism. I record these matters, simply to

illustrate some of the organizational and human realities that underlie the evaluations of

who is “exceptional” vs. who is “superior” – the focus of complaint by a number of the

grievors; and to underline some of the evidentiary difficulties that arise from the way in

which the case unfolded.. For there is an inevitable element of subjectivity about the

evaluation process - whether expressed by the senior officer who makes the ultimate

determination, or by the bargaining unit supervisors (like Smallbone); and without a clear

benchmark on what is “exceptional” it is very difficult to judge the result of that process

for any of the individual grievors.

*

I will return to some of these issues later on, when looking at the

individual grievances. However, I think that it is useful to underscore some of these

factual dimensions of the problem. Because as I have already noted: the assignment of

numbers (5-10-15) to the challenged part of the process (“was s/he “exceptional” – truly

outstanding - and not just “superior”?) gives a wholly artificial sense of mathematical

precision to a judgment that is not impersonal, or arithmetic, or scientific at all. And that

poses a challenge for the adjudicator, who has to determine whether the process breached

the collective agreement, and if so, what to do about it.

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THE GROUP 1 GRIEVORS WHO WERE EXLUDED OR REMOVED FROM THE 2001 PROMOTION PROCESS FOR ONE REASON OR ANOTHER

VII - Officer Pengelly

Background

Rose Pengelly has been a police officer with the Toronto Police Service

since 1986. From 1986 to 1997, she was assigned to regular duties as a working

Constable; and it is not disputed that she was (and is) a good police officer. Indeed, in the

mid-1990’s she worked, for a time, as an "acting Sergeant" (the practice of appointing

“acting” Sergeants has since been abolished). However in 1997, Ms. Pengelly suffered an

ankle injury which required surgery; and she has been on "light duties" since October

1998. In recent years, she has been working in the Traffic Section of Division 41,

performing administrative duties that were within the scope of her physical limitations.

It is not clear whether Ms. Pengelly will ever fully recover from her

injuries. What is clear, is that she cannot now meet the "Use of Force" requirements, that

are normally expected of all working police officers, (and are regulated under the Police

Services Act); and she will not be able to meet those Use of Force requirements, at any

material time in the future.

However, there is no dispute that, apart from this disability, Ms. Pengelly

is an experienced and accomplished officer, who has received good performance

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evaluations. Her performance appraisals (for 1999-2000 and 2000-2001) note that she

typically exceeds expectations on the core competencies of her current job; and she has

also demonstrated “superior performance” in all of her core tasks. Nor should one ignore

her 11 years of on-the-job experience, prior to her injury. Were it not for her disability,

she has the potential to rise through the ranks to higher levels of supervisory and

managerial responsibility within the TPS.

In 1999 Ms. Pengelly applied for promotion; and she was evaluated like

any other candidate - as the 1999 Promotional Policy then permitted. In the UMAT

scoring system then in use, she achieved 31 out of 32 possible marks – although, as it

turned out, she did not ultimately qualify for promotion. The Employer's policy, at that

time, was as follows:

Members who have a documented, bona fide, medical condition which prevents them from being able to meet the mandated Use of Force requirements, are eligible to participate in the Service’s promotional processes…… Members are further advised that if successful in the process, they would remain on the promotional eligibility list until such time as they pass the required Use of Force training. If, due to their medical condition, the successful member will never be able to successfully complete the required Use of Force training, that member will remain on the promotional eligibility list until the Chief of Police identifies a suitable position…

Under the 1999 policy, the practical prospects for promotion were limited

by an officer’s disability. However, disabled officers were not excluded from the

consideration altogether. Rather, the 1999 policy contemplated that a disabled officer

could compete for promotion on the same basis as his/her able-bodied coworkers; then

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the Employer would consider whether there was a suitable position for any successful

candidate – presumably having regard to the nature of the candidate’s disability, and the

organizational needs of the TPS at the time.

Under the 1999 approach, there was no guarantee that the Chief would be

able to find a suitable position for the successful disabled candidate. However, the

inference was that he would try; and if he were unsuccessful in finding a spot for the

disabled officer, then it would not be for want of trying. And if an officer did not

otherwise qualify for promotion (local evaluation + exam + interview) on the same basis

as his/her able-bodied competitors, then there was no need to make that effort. The

disabled applicant first had to meet those other qualifications and score sufficiently well

to be placed on the promotion list.

The 1999 policy tried to balance the needs (and legal rights) of the

disabled officer, with the needs and interests of the organization. It requires the disabled

officer to meet the same eligibility criteria and testing regimen that applies to everyone

else. Then it contemplates an individualized consideration, undertaken in light of the

officer’s capabilities and the kinds of positions that might be open to her/him. There were

no immutable presumptions, or exclusionary rules. Nor did the search for possibilities

have any express time limit.

*

Ms. Pengelly applied for promotion, again, in 2001. This time, though, her

application was rejected. She was told that she was ineligible to apply for promotion,

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because she could not meet the TPS’s Use of Force requirements. Her disability

prevented her from being considered for promotion.

* In 2001, Ms Pengelly was ruled ineligible to apply for

promotion because there had been a change of practice since 1999. It was now stipulated

that all candidates who successfully competed for promotion, would spend a year doing

"frontline duties" as a "road Sergeant"; and for that kind of posting, it was necessary for

them to be able to meet the Use of Force requirements. The Use of Force qualifications

were effectively made an eligibility requirement to apply for promotion to any of the

hundreds of Sergeant or Detective positions which might need to be filled, over the next

couple of years.

As in previous years, each successful applicant was expected to go on an

eligibility list, where s/he could stay for as long as two years until a suitable vacancy

arose. However, in 2001, it was expected that as vacancies arose, successful candidates,

would now be posted out to “road Sergeant” positions; and that an officer would have to

get experience as a “road Sergeant” in this way, before s/he went on to any other duties –

even those officers who eventually ended up in investigation work, as Detectives.

The idea was that “street experience” as a road Sergeant was absolutely

essential for anyone seeking supervisory responsibilities in the TPS; and that the practical

problem-solving and platoon leadership that an officer experienced, “on the road”, were

critical for anyone aspiring to higher rank. Being a “road Sergeant” was the training

ground and proving ground for new Sergeants, who were on probation, for a time, after

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their appointment. Likewise, the intention was to move a successful candidate out of the

location where s/he was currently located, so that s/he would not be supervising the peers

with whom s/he had lately been working.

It is not clear to me how this would actually work, in practice, if the

Sergeant or Detective positions that opened up over the next two years – for example, by

retirement – happened not to be “road Sergeant” positions. It is not clear how filling such

emerging vacancies would be meshed with the “road Sergeant preference” mentioned

above; because Detectives are not road Sergeants, although they are at the same rank, and

not all “Sergeants” are “road Sergeants”. It is not clear whether every aspiring Detective

Constable, who wants to be a Detective and stay in investigative work, nevertheless has

to pass through the road Sergeant stage. And it is conceded that lots of “Sergeants” are

not on the road, and there are a number of Sergeants who do not ordinarily “use force” in

their day to day duties.

Nevertheless, I am told that this change of practice with respect to post-

promotion work assignments, effectively changed the way in which the TPS felt that it

had to deal with disabled workers seeking promotion – particularly uniformed

Constables. It meant (in the Employer’s view) that disabled workers like Ms. Pengelly

could not apply for promotion at all. An explanatory letter from the Manager of Labour

Relations reads in part, as follows:

“….it is our understanding that all newly promoted Sergeants are required to spend one year performing front-line duties prior to being considered for assignments in other areas of the Service. Given this requirement, members must successfully meet the criteria

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contained in the Police Services Act pertaining to Equipment and Use of Force. This is a bona fide requirement for the position of Sergeant and as such any member applying for this position must meet the minimum eligibility requirements”

These changes introduced in 2001, meant that there were additional

hurdles for a disabled officer like Ms. Pengelly, because in order to even be considered

for promotion, she would have to seek an exemption from these expectations respecting

post-promotion “road Sergeant” assignments and changes of work location – an

exemption that the Employer was apparently not disposed to give. And in any event,

(according to the Employer) there are very few jobs at the TPS that did not require the

incumbent to be able to "use force".

In fact, in the Employer’s view, there were no uniformed Sergeant’s jobs,

that, under the new rules, would be open for a newly promoted Constable, because all

such new, probationary Sergeants would be sent “on the road”. Moreover, the Employer

was also of view that there were no Detectives (equivalent to a Sergeant in rank, but with

an investigatory focus), who did not require the ability to use force, if necessary. The

Employer's position is that virtually all officers, at all levels, are required to be qualified

to "use force", even though as a practical matter, it may be very rare for some of them to

actually do so - especially officers in higher ranks, or on special assignment, or who do

not work "on the street" or make arrests, but rather spend their time “in the office”, or “at

headquarters”, or “working at a desk”.

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The Employer’s view is that anyone dealing with the public may

potentially be confronted with violence; and that from time to time it also needs to put

“all hands on deck” to meet special demands (like political demonstrations, or the visit of

the Pope). And for these special occasions, it draws upon officers who do not normally

have much public contact, or do not normally need to “use force” in connection with their

regular daily duties. From this perspective, therefore, everyone has to be able to use

force, because there is a possibility that they may be called upon to do so – even if

(empirically) that may not part of their regular duties, or may only happen very rarely.

Moreover, a Sergeant who is not able to be flexible and perform the full range of

supervisory duties required of him/her, is not really performing the core tasks of an

officer at that rank.

*

It will be recalled that there are approximately 5000 police officers

working for the TPS, and there are roughly 900 Sergeants and Detectives. The

Employer's position is that only a handful of Sergeants do not have to meet the "Use of

Force" requirements that the TPS expects of its officers, as a bona fide occupational

requirement; and as I understand it, the Employer’s position is that all Detectives have to

meet the Use of Force requirements. So of the 900 positions of responsibility, to which a

Constable can aspire, there are (in the Employer’s view) very few opportunities for

someone like Ms. Pengelly. The Employer estimated that there might be 10 or 12

positions – perhaps 1 % of the Sergeant/Detective complement – where the Use of Force

requirements could be relaxed.

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The result is that (according to the Employer) there are serious and

genuine practical impediments to any disabled officer seeking promotion within the TPS;

because if officers are expected to work their way up, through the ranks, beginning at

"Sergeant", then the new rules, and operational realities, will effectively exclude any

disabled officer from successfully seeking promotion, and thus attaining higher rank

within the Toronto Police Service – even to the relatively low level Sergeants’ positions

(of which there are a few) where there is no use of force requirement. And if a higher

level manager always needs lower rung experience in various facets of the Employer’s

organization, before s/he can effectively supervise others, then a disabled officer will

simply not be able to acquire the range of experience necessary to move up the ladder.

The inability to get wider “road Sergeant” experience may also cap an

employee’s progress, even if s/he makes it into one of the few available jobs where the

use of force is not required; because that kind of experience is needed for further

advancement So as a practical matter, a disabled officer may be effectively frozen at

his/her current rank – even if the Employer is able to accommodate him/her in that rank.

Because, whatever abilities s/he may have, the inability to use force, means that that there

will be no place for him/her in the ranks of police management.

*

In the result, operational realities put severe limitations on the horizons of

someone who is disabled relatively early on in his/her career. Such disabled workers may

be accommodated in some way at their present level (as Ms. Pengelly was); but as a

practical matter, they may have to look for promotion within the “Civilian Side” of the

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TPS, where there are also managerial and administrative positions, and there is no “Use

of Force” requirement. Moreover, if the ability to “use force” is stipulated as a front-end

eligibility requirement, then there may in fact be no opportunity at all for a disabled

worker to move up into any of the 900 or so, Sergeant or Detective positions within the

organization – even to those few positions that might (perhaps with accommodation) not

require the use of force.

As the Employer sees it, what distinguishes civilian managers from police

officers who manage other officers, is that the latter, being police officers, are entitled to

lawfully use force. So if someone cannot do that, then s/he lacks an essential element of

the job, that distinguishes him/her from a civilian: s/he lacks an essential quality that is

integral to being a police officer.

It is also worth noting that section 46 of the Police Services Act

specifically contemplates that a disabled officer who cannot be accommodated can be

terminated. The statute recognizes that there is a physical component to the job, and that,

for one reason or another, an incumbent officer may no longer be able to meet that

requirement. Accordingly, keeping someone on and paying him/her, as a police officer,

in a job that does not require a police officer’s physical abilities, might arguably be

considered an “accommodation” - preserving the employment status and pay and “status”

of the disabled officer, who might otherwise face termination, or have to look for a lower

level job on the civilian side of the organization. On the other hand, the same statute also

endorses the requirement to accommodate to the point of undue hardship – thus

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reinforcing the obligations already present in the Ontario Human Rights Code, and

suggesting that it may be possible to do that.

* Ms. Pengelly was upset by the ruling that she was

ineligible to apply for promotion in 2001, and she took the matter up with some of her

superior officers. She pointed out that she had not been excluded from consideration in

1999, and that, in the past, at least one other disabled officer had been promoted to

Sergeant, even though he was in a wheel chair. As she saw it, the “use of force” had not,

in practice, been made an absolute requirement for all jobs in the Police Service, nor had

everyone always been sent out “on the road”; and she did not see why she could not at

least participate in 2001 promotional round, on the same basis as she had done in 1999 –

which is to say, recognizing that if she were successful in overcoming all of the

evaluative hurdles (Unit Commander assessment + exam + interview), there still might

not be a suitable position for her.

Ms. Pengelly’s superiors replied that there had been a change of view

since 1999, and that disabled officers were no longer considered eligible for promotion.

Ms. Pengelly was told that she did not qualify to write the examination because she was

no longer a fully qualified police officer, since she could not meet the Use of Force

requirements. She was also told that she should consider herself lucky, because the TPS

was already accommodating her, by keeping her in a police officer’s job.

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This may not have been the most diplomatic way of putting the

Employer’s position; and the comment no doubt reflected the heat and frustrations of the

moment. But there was an underlying organizational reality here, that was also evident in

the evidence of some of the other witnesses who testified in these proceedings - although

because no one had actually considered Ms. Pengelly’s personal circumstances in 2001,

their evidence was necessarily limited to a general discussion of possibilities, rather than

a specific examination of the actual job openings that became available (or might have

been made available) following the 2001 round of promotions.

Accordingly, I think that it is important to emphasize, at this point, that an

important thrust of the Association’s claim, is not that Ms. Pengelly could or should have

been accommodated if she had otherwise showed herself to be eligible for promotion, but

rather that the Employer should not have rejected her, outright, without even considering

that possibility. Or put differently: that the 1999 policy preserved the proper legal and

organizational balance: giving a disabled worker the opportunity to apply for promotional

consideration, then assessing whether there was a position at the higher rank that was

suitable for the successful applicant, having regard to any physical limitations.

This thrust of the Association’s position can therefore be described as a

kind of “process complaint”; namely: that the Employer’s breach of the Human Rights

Code and the collective agreement, lies in failing to consider Ms. Pengelly for promotion,

rather than an assertion that she could have been successfully accommodated, had anyone

actually turned their mind to that issue. The issue of her personal situation and possible

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accommodations, did not arise because she did not get to apply, or be evaluated, in the

first place.

*

There is much to be said for the Association’s perspective, as I will

discuss later on. Nevertheless, I think that it is also useful to acknowledge some of the

organizational constraints to which senior police managers referred in the course of their

evidence; because they serve to put the new rules – and Ms. Pengelly’s claim – into

perspective.

*

It does not seem to be disputed that the TPS has always tried to

accommodate disabled police officers – not least because disabilities (temporary and

permanent) are an occupational reality in the Police Service, given the size of the

organization, and the kinds of work in which police officers are engaged. With a work

force of 5000 officers, some number of disabilities is going to be inevitable; and no one

seriously questions the relevance of physical fitness for the difficult job that police

officers are required to do – often in dangerous circumstances, under close public

scrutiny. The “Use of Force” and the ability to use force, are normal and essential

attributes of the job of a police officer.

Moreover, according to (former) Deputy Chief Steve Reesor, the TPS’s

ability to deal with disabilities has been circumscribed in recent years, by shifting

operational needs and budgetary constraints.

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Like other parts of the broader public sector, the TPS has faced budgetary

pressures to do more with less; while at the same time, citizens have demanded a more

visible police presence, “on the street” - in keeping with the “community policing”

model, that was thought to be appropriate for the City of Toronto. With that in mind,

Deputy Chief Reesor pointed out that there were 400 fewer active police officers than

there had been in 1992; and that there has been a significant effort to get more officers

out of the stations and into active policing. Yet at the same time, some of the positions

which have historically been occupied by disabled officers have been eliminated by

“civilianization”.

The TPS has civilian employees as well as police officers; and, as is

evident: one of the critical (and legal) distinctions between them, is that police officers

are directly involved in enforcing the law and are lawfully entitled to use force (See

section 42 of the Police Services Act, which spells out those duties). However, from the

Municipality’s perspective, why use a more highly paid police officer for “analytical” or

“administrative functions” that do not involve direct law enforcement or the use of force,

when that work can be done as effectively – and often more cheaply – by civilians? For

in this respect, a police officer who cannot meet the normal Use of Force requirements of

the job, may not be much different than a civilian member of the force; and, as a result,

cost pressures can erode the body of work historically done by disabled members of the

police officers’ bargaining unit – encouraging the substitution of civilians for police

officers.

133

Nor is this a hypothetical fear; for as Deputy Chief Reesor pointed out: the

radio/dispatch room was once the landing place for 15-20 disabled Sergeants, whereas,

now, most of the dispatching and “911” work is done by civilians – incidentally reducing

the number of positions available for disabled officers at any rank. Similarly, station duty

clerks are no longer police officers; nor is there any longer a Sergeant in media relations.

Moreover, it is easier to find bundles of work (“desk duties”) for disabled workers to do

“at the Constable level”, than it is to justify having a disabled Sergeant do such work, at a

Sergeant’s salary, but without a Sergeant’s responsibilities – including supervisory

responsibilities, which is what often distinguishes the “Sergeants”, from Constables, (at

least on the uniform side of the service).

So there is a budgetary element here as well: why pay someone at the

“supervisor’s level”, when s/he no longer “supervises” anyone? Why pay someone more

than the actual value of the work being performed ?

These budgetary and operational pressures have intensified in recent years,

even as the legal protections for disabled workers have grown – putting real pressures on

the TPS’s ability to meet its obligations to the public, while at the same time

accommodating its own disabled officers. Nor is this only a problem for the permanently

disabled, because, as Deputy Chief Reesor noted, there were also problems finding

suitable work for persons who are temporarily disabled - as well as a need to

accommodate the growing numbers of women on the Force, whose pregnancies have to

be taken into account as well. Because in the end: the enhanced obligation to

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“accommodate” the personal needs of individual employees – with its focus on the

individual - did not diminish the TPS’s primary responsibility to fulfill its core mandate

to the public. If anything, it is harder to meet public expectations than it used to be.

*

The easy answer, of course, is to simply hire more police officers; for if

there is staffing flexibility and a generous budgetary appropriation, it is much easier to

accommodate those who are not fully functional – without compromising either safety or

operational efficiency. It is easier to give priority to the needs of the disabled individual,

if there are lots of other officers available to meet the public demands of everyday

policing: to do what those disabled individuals can no longer do. But that requires

funding from the Municipality, over which the TPS has little control.

*

Deputy Chief Reesor initially testified that there were really no Sergeant’s

jobs where the use of force was not required, given that Sergeants were regularly called

upon to provide backup, or to fill in for other Sergeants who were off duty for various

reasons. The were no “light duty” Sergeant’s positions at the Divisional level. He also

noted that even in seemingly sedate assignments, like “collision reporting centers”, there

is the possibility of needing to use force, and potential risks when dealing with members

of the public – as, he said, the Association itself has pointed out, during discussions on

the staffing of those centers. Moreover, being able to use force is not just a factor in

interactions with the public (including protecting members of the public), but may be

important for the protection of other officers, who face on-the-job risks in enforcing the

law.

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In Deputy Chief Reesor’ view, the “Use of Force requirements” were as

important for Sergeants as they were for other police officers; and this was especially so

in an era when the TPS was being asked to put more officers on the street, and to

concentrate its efforts on direct law enforcement. The “Use of Force training” is a

standard part of an officer’s training regimen, precisely because it is a bona fide

occupational requirement, for all police officers. It is called for by the nature of the work

that police officers do; and therefore they require specific training for it.

However I think it is fair to say that in the course of his evidence, Deputy

Chief Reesor also identified a few Sergeant’s positions which might “work” for a

disabled employee - although even here, there were operational considerations at play,

and questions about the suitability of putting a disabled person into such jobs unless s/he

was quite experienced and fully qualified (Use of Force aside) to begin with. The

existence of Sergeant’s positions where no “use of force” would be required, did not

translate easily into a career path for disabled Constables seeking promotion.

Thus, while training Sergeants, or Sergeants at the Police College, would

not normally be called upon to use force, they may be asked to do other duties from time

to time where that would be required; moreover, Deputy Chief Reesor suggested that a

disabled Constable was unlikely to be suitable for such position, without considerable on-

the-job experience, including experience in parts to the organization where the use of

force was required. As Deputy Chief Reesor put it: the TPS does not normally promote

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Constables into the position of "training Sergeant"; but rather, that a person normally

only becomes a training Sergeant, after having already been a Sergeant, with a

considerable range of experience. Nor is training properly regarded as a residual function;

because the quality of the training is important in itself, and is regularly scrutinized,

externally, by courts and coroners. It is no place for the in-experienced.

Superintendent Tony Warr made the same observations - as did Staff

Superintendent (now Chief) William Blair. Both senior officers supported Mr. Reesor’s

view, that the coaching and Counseling typically done by a training Sergeant, could not

easily be done by a disabled police Constable, newly appointed to Sergeant’s rank – even

though, training Sergeants, or Sergeants at the police college, did not need to use force;

so that, from that perspective, the job might be within the scope of a disabled officer’s

physical limitations, but would not necessarily “work” for other reasons. And both

witnesses also emphasized the importance for a supervisor/Sergeant to have “road

experience”.

Likewise, the Detective at each station who deals with complaints against

fellow officers may not have the same need to use force as someone “on the street” (there

was very little evidence about this, since this position was only mentioned in passing) but

I was told that such position is typically occupied by an experienced and senior officer ­

and has to be, if s/he is going to do the job properly, and have the respect of the other

officers whom s/he is investigating.

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Mr. Reesor also said that he could conceive of using a Sergeant in a

“planning function”, where s/he was not in uniform, did not have to use force, and had no

occasion to arrest anyone. But once again, he suggested that even on that “hypothetical”,

he would want an experienced Sergeant, or he would have used a Constable for the

position, in the first place. This is not something that would normally be envisaged as a

promotional opportunity for a disabled Constable.

In other words, these kinds of light duty positions might “work” for a

disabled Sergeant who already had that rank and experience, but were less viable for a

Constable who had never been a Sergeant before. They might “work” as a lateral transfer

to accommodate a disabled Sergeant, but were much more problematic, as a promotional

opportunity for a disabled Constable.

In Deputy Chief Reesor’s view, the only area of the TPS where there were

permanent accommodation possibilities, was in the Centralized Alternative Response

Unit, (CARU) associated with “headquarters”, where there were a number of officers

with no front-line duties, and no requirement to use force. Among those officers were

about 10 Sergeants’ positions that could be filled by individuals who were disabled ­

although, even here (according to Deputy Chief Reesor) there were supervisory

challenges not easily met by an inexperienced supervisor, because of the nature of the

work group (senior experienced officers, often Sergeants themselves, with serious

disabilities and restrictions). He also described these CARU Sergeants’ positions as one-

dimensional, and therefore not a good source of experience for further advancement ­

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which is to say, once again, that these Sergeants’ positions “work better”, as lateral

transfers for disabled officers who are already in that rank, and have not been seen as a

good stepping stone for further promotion.

It is also interesting to note that, according to Deputy Chief Reesor, Ms.

Pengelly’s present position at Division 41 was a "make work" job, which really should

have been located in CARU - which had been created to centralize these light duty

positions, and provide a pool of light duty opportunities for the disabled (as the

dispatching function once was). He explained that the kind of position occupied by Ms.

Pengelly is not part of the current Divisional model; and that Ms. Pengelly’s functions

were not necessary, in the organizational component where she was doing them. As he

saw it, having her in that position at the Divisional level, meant that there was one less

officer on the streets, performing the front-line functions that the community was

demanding; and in this regard, her particular accommodation was out of step with the

way in which the TPS expected accommodations to be managed at the Divisional level

(which may also explain the comments that were made to Ms. Pengelly by her Divisional

superiors, who had approved such accommodation for her). According to Deputy Chief

Reesor, Ms. Pengelly’s current accommodation was an anomaly, which probably should

not have been dealt with that way. And so was the wheel chair bound officer, whose

position was created for him and disappeared on his death.

*

On the other hand, Deputy Chief Ressor did not dispute that it might have

been possible to put Ms. Pengelly on an eligibility list, in case a Sergeant’s position

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opened up in the CARU; and no one suggests that there are no “Sergeants jobs” at all

occupied by disabled workers. Because there are, in fact, some Sergeants now on the job

who are disabled, and there are historical examples as well.

It is also admitted that there are lots of Detectives who have limited

supervisory roles and some Sergeants who do not actually use force, even though they

may on very rare occasions (e.g. the Pope’s visit) be called back “to the street”. To take

an example: Superintendent Steve Grant testified that the human resources, staff planning

and development group, had about 50 uniformed officers, including a Staff Sergeant and

two Sergeants; and their normal duties would not involve any use of force.

Similarly, it is not disputed that the TPS looks for “temporary

accommodations” for disabled officers who are expected to recover from whatever

prevents them from doing their regular duties; and what distinguishes those situations

from a permanent accommodation, is a question of timing. And it clearly is possible,

sometimes, to assign an officer to “desk duties”, if s/he is unable to perform his/her

normal duties – as happened in Ms. Pengelly’s case – even though there may be

operational limitations on the Employer’s ability to do this, as well as legitimate fears

that such work might be siphoned off to civilians. That is true for Sergeants, as well as

for Constables.

*

Finally, Deputy Chief Reesor candidly observed that if the relatively few

Sergeant’s positions where no use of force was required, were taken up by younger

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disabled Constables seeking promotion, then there would be fewer positions available for

older disabled Sergeants – officers who were already at the higher rank, but who needed a

lateral transfer, in the event that they became disabled. That was a live issue for these

older members of the force, because of the number of years that they had spent in the

rough and tumble of police work, and in view of the likelihood that, with age, some

number of them would require accommodation. Moreover, as Deputy Chief Reesor saw

it, it would not take many disabilities in the ranks of senior existing Sergeants, to

overwhelm the Employer’s ability to accommodate them – triggering the specter of

demotion, or termination, pursuant to the provisions of the Police Services Act.

Not surprisingly, in a organization that tries to look after its own, there is a

reluctance reclassify these disabled Sergeants as civilians, even though the functions that

may be available for them to perform, are “civilian” in nature, in the sense that they could

be filled by civilians. Nor is there much appetite to demote them, when they cannot do

the regular duties of their Sergeant’s position. And there is none at all to terminate them,

even though the legislation contemplates that possibility. The TPS tries to accommodate

Sergeants who are disabled.

Accordingly, as Deputy Chief Reesor saw it: the promotion of young

disabled Constables into the Sergeants’ rank, would limit the landing spots available for

more senior Sergeants already at that level, who suffered disability and needed

accommodation. Advantaging Constables in this way, could have an adverse impact on

other disabled workers who might need accommodation, and had already established

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themselves at the Sergeant rank; and, I was told that there is no contractual foundation for

rationing these light duty jobs in accordance with seniority (i.e. allocating light duties

among the disabled group in this way).

* Superintendent Tony Warr’s testimony was broadly

similar to that of Deputy Chief Reesor’s. He too emphasized the need for all Sergeants to

"use force"; and he confirmed the importance of a new Sergeant spending time "on the

road", so that s/he could hone his/her supervisory abilities, and develop the problem

solving abilities that came with this kind of on-the-job experience.

In Mr. Warr’s estimation, a new Sergeant should be a “road supervisor”

for at least a year, so that s/he could develop the ability to give orders, administer

discipline and supervise the members of the platoon. It was a necessary part of the

learning that any Sergeant should have – it was what made them “Sergeants”; and in Mr.

Warr’s experience, there was a significant difference between those officers who had

been a road supervisor, and Detectives who had played a different role. Moreover, in

recent years, the TPS has tried to reduce the distinctions between the two streams

(uniform vs. Detective), and to emphasize the basics – which are best learned by being a

road Sergeant.

On the other hand, Mr. Warr testified that an experienced police Constable

with some supervisory experience could conceivably become a training Sergeant. It was

not ideal if the only prior Sergeant’s experience that s/he had, was in the CARU; but it

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was something that he would consider. As he put it, he would have to balance issues of

morale and efficacy, versus the legal duty to accommodate a disabled worker. But he was

in no doubt at all, that experience as a road Sergeant was far superior to any supervisory

experience that a disabled worker might get in the CARU.

I might repeat here, that there is a distinction between what Detectives do

and what Sergeants do, even though they are equivalent in rank (one step above

“Constable”). Detectives typically work in two-person teams, as partners, and in

investigative groups, reporting to a Detective Sergeant, who is the one that does the

coordinating and supervising functions. And with that in mind, Tony Warr said that he

thought it was at least "possible" that one of the Detective Sergeant positions (one rank

up the ladder from “Detective”) in Division 42 could possibly be filled by a disabled

individual. For although there has been no actual experience in that regard, he said that he

was aware of a situation where someone was temporally disabled, and was confined to

desk duties for some time.

Accordingly, (and at least to some extent), there may be “bundles of

work” for disabled Sergeants/Detectives to do, without necessarily descending into

inefficient (and possibly demeaning) “make work” projects - although, to be fair, the

instance to which he referred, is not the same thing as a permanent light duty position,

into which persons could be promoted.

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Discussion and Disposition

There is really no dispute about the general principles which flow from

human rights considerations, and which also inform what is "reasonable" under Article

3.01 of the Collective Agreement - particularly now that the law no longer requires an

"intention" to discriminate, and focuses, instead, upon the discriminatory impact of

organizational structures that disadvantage disabled employees (see especially: British

Columbia (Public Employee Relations Commission) v. The British Columbia Government

and Service Employees Union (B.C.G.S.E.U.) (Meorin Grievance) [1999] 3 S.C.R. 3).

The Supreme Court of Canada has consistently held that human rights

legislation is fundamental or quasi-constitutional in nature, and, as such, it should be

interpreted in a broad and purposive manner. The promotion of equality is given singular

importance; and one of the ways to ensure that individuals can contribute fully to the

community, is to ensure that they are not deprived of workplace opportunities because of

disability. Moreover, once the employee establishes a prima facie case of

“discrimination” – that a work opportunity has been denied or limited because of that

person’s disability - then the onus shifts to the Employer to establish that its conduct is

justifiable. And that typically means that the Employer must show that the disentitling

characteristic is legitimate, and that employee’s needs cannot be accommodated without

undue hardship.

144

The case law establishes that "accommodation" is required to be a central

feature of the Canadian workplace (Meorin). It is not just a residual concern; and to some

extent, workplace design must reflect these legal values. However, these legal principles

still have to be worked out, in a practical way, “on the ground” - weighing how much the

organization may have to compromise its own goals, (and at what cost) in order to meet

these individualized concerns.

The duty to accommodate contains both procedural and substantial

components; and the procedure that is used by the Employer to assess accommodation

may be as important as the substantive result (Meorin paragraphs 77-78). Moreover, the

courts have frowned upon hard and fast rules which are either intended, or have the

effect, of excluding disabled persons, without a specific consideration of their individual

circumstances (see: British Columbia (Superintendent all the Motor Vehicles) v. A British

Columbia (Council of Human Rights), Terry Grismer, et al [1999] 3 S.C.R. 868). Thus,

in the recently decided McGill University Health Center (Montréal General Hospital) v.

Syndicat des Employes de l’Hopital General de Montreal et al [2007 SCC 4, released

January 26, 2007] the Supreme Court observed that:

The importance of the individualized nature of the accommodation process cannot be minimized. The scope of the duty to accommodate varies according to the characteristics of each enterprise, the specific needs of each employee and the specific circumstances in which the decision is to be made. Throughout the employment relationship, the Employer must make an effort to accommodate the employee…… Reasonable accommodation is thus incompatible with the mechanical application of a general standard…..

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The duty to accommodate disabled employees requires effort, and the

threshold for undue hardship is high. When evaluating undue hardship, the Supreme

Court has made it clear that "more than mere negligible effort is required to satisfy the

duty to accommodate". Some hardship is acceptable; and it is only "undue hardship" that

satisfies the test - relieving the Employer of the obligation to accommodate. And that

hardship might involve expense, inconvenience, and/or a disruption of work.

That said, I think that the instant case is distinguishable from many of the

cases that were put before me; and on a number of different grounds.

First of all, Ms. Pengelly is already being accommodated - in fact, if

Deputy Chief Reesor is correct, she is being accommodated in a manner that is beyond

what the TPS normally expects to happen at the Divisional level. This is not a case where

the Employer has failed to recognize and accommodate a disabled employee, or where

the complainant faces a loss of employment – as, in fact, is specifically contemplated by

section 46 of the Police Services Act. The discriminatory limitation that Ms. Pengelly

complains about, is in respect of promotion to higher rank; her employment and job

security are not in jeopardy. And that current accommodation is not just an indicator of

good faith, but goes some considerable way towards meeting any obligation that the

Employer might have to her under the Human Rights Code.

Furthermore, the evidence establishes that the ability to use force is a bona

fide occupational qualification for police officers, and that disabled employees who

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cannot meet this physical requirement, are severely limited in what they can do, at what

ever rank. Because I agree with the Employer that the safety of fellow officers and the

public would be compromised if police officers were unable to use the "force" which

their job requires of them from time to time; and that there is a limited range of work

assignments where that requirement is unnecessary - more limited, in some ways, than

was once the case, but how limited, may be a genuine subject of debate. Or to use the

verbal formula found in the cases: the Use of Force standard, is rationally connected to

the performance of the job; and it has been adopted in the good faith belief that it is

necessary to fulfill a work-related purpose; and objectively, and in the overwhelming

majority of cases, the ability to “use force” is a necessary component of an officer’s job,

which cannot be dispensed with, for the purposes of accommodation. Moreover, this is

not just a matter of productivity or efficiency; for there are real risks - to the officers and

to members of the public - if an officer cannot meet the physical requirements of the job.

Nor is it unreasonable or inappropriate to require newly appointed

Sergeants to spend some time on the road, to hone their supervisory skills; and to use

such assignments as a training ground, and proving ground, for new supervisors. That is

an appropriate operational consideration for new Sergeants, and serves a legitimate

business purpose, even if it means that disabled persons cannot easily become, or fulfill

the role of, Sergeants.

*

In my opinion: the evidence of Deputy Chief Reesor is compelling and

persuasive in this regard; the Employer has acted in good faith when it established these

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“rules”; and they are rationally and legitimately connected to its core responsibilities: to

serve and protect the public.

* Having acknowledged that, though, it seems to me it that

the legal focus of the Association is the correct one: that this is not an "accommodation

case" of the normal type - or at least, not yet; but rather that the “discriminatory

treatment” of Ms. Pengelly consists in failing to even consider whether there were

promotional opportunities open to her, within the scope of her admittedly serious

physical limitations. Because it is also clear on the evidence, that, in practice, many

officers qualified to use force, do not actually have to do so, except very rarely; and that

there are some jobs, that do not have to use force at all.

I do not agree with the Employer that its obligation to consider Ms.

Pengelly for promotion, disappears merely because she is already being accommodated ­

that there is no obligation to consider any other accommodation; and that there is no

problem with refusing to even consider disabled workers for promotion. For here, it

seems to me, the Employer is on much weaker ground; because the evidence establishes

that there were Sergeants’ positions (albeit perhaps not very many of them) for which

Ms. Pengelly might have been qualified, despite her limitations; and that there were also

other possibilities that could have been explored - as they were, to some extent, in the

cross-examination of the Employer's witnesses; and as was contemplated by the policy in

place in 1999; and as happens from time to time for employees who are temporarily

disabled.

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The quest – while no doubt difficult and possibly unsuccessful – was by

no means futile or impossible.

Yet because of the Employer's blanket rule (and in contrast to the situation

in 1999) , no such consideration took place in Ms. Pengelly’s case. And because of its

rule with respect to “road Sergeants” (a rule that has not been applied invariably in the

past), it did not even consider whether there were some positions of higher rank (Sergeant

or Detective) where Ms. Pengelly might fit.

I do not suggest (nor need to decide) that such inquiry would necessarily

have been successful, or that the TPS would have had to "cobble together" work

functions "at the Sergeant level" in order to create a promotional path for disabled

Constables who are already being accommodated in their current positions. I agree that

the “light duty” promotional opportunities open to a disabled Constable may be very

limited, and that they have narrowed in recent years; and also that, to some extent, a

disabled junior officer may be in “competition” with other disabled workers who are

already at the Sergeant’s rank.

It is also easier to accommodate officers at the Constable level, than to

steer them into higher ranks, where their lack of broader-based experience, would be a

serious disadvantage (quite apart from the ability to use force); and the ability of the TPS

to accommodate disabled officers, is obviously affected by the number of officers who

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need accommodation. Moreover, the more disabled officers there are, the harder it

becomes to accommodate more of them, and the more the TPS may be forced to consider

the termination of employment contemplated under the Police Services Act; or look for

alternatives on the civilian side of the service.

Accordingly, there is something to be said for Deputy Chief Reesor’s

concern that the effort to accommodate disabled Constables, should not be pursued at the

expense of disabled Sergeants, who may also need accommodation, and who have

already attained the higher rank. For it seems to me that it is legitimate for the Employer

to take into account the accommodation of other disabled workers, and given the nature

of its operation, the ability to accommodate may be more limited than in some other

public service settings.

However it also seems to me that where, as here, there is a rule which is

overtly discriminatory on a prohibited ground, ostensibly excluding disabled Constables

from seeking promotion at all, there is a residual obligation to consider exceptions on an

individualized basis - especially when there clearly are some Sergeants’ positions that do

not require the “Use of Force”, and there might be others, had the Employer been

prepared to explore those possibilities.

Would it have been difficult for the Employer to do that? Not on the

evidence before me. All that the Employer would have had to do, was give Ms.

Pengelly’s candidacy the individualized consideration that the law seems to require, and

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that she would have received in 1999 – if (but only if) she had otherwise met the other

qualifications that were applicable to everyone else (and that had applied to Ms. Pengelly

herself, back in 1999).

Had she been treated that way, and had she passed the examination (etc.)

she would then have been put on a list, like the other successful candidates, while the

Employer looked for a suitable spot for her. Just like everybody else. And whether that

quest would have been successful, would depend upon the needs of the organization, at

the time, assessed in light her disabilities and abilities, at the time.

The evidence before me does not establish how many Constables there are

in Ms. Pengelly’s position; but there is certainly no evidence that there has been a

stampede of disabled Constables seeking promotion to higher rank; or that it would have

been a hardship to let her be assessed like able bodied officers were; then, if successful,

keep her on a list, while the possibilities for promotion were explored. For to repeat: in

order to even trigger consideration, a disabled officer would have to otherwise meet the

stipulated qualifications for the job, (Use of Force aside) as measured by the Unit

Commander’s Assessment, the examination, and the interview. It is only at that point that

the question of accommodation would have arisen. And it seems to me that there would

not have been many Constables in that position. (Recall that Ms. Pengelly herself did not

get over those hurdles in 1999).

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In other words, the “hardship” (if any) consists largely in putting one more

candidate (of hundreds) through his/her paces, then if s/he is otherwise successful,

assessing whether there actually is a promotional spot for her, within the scope of her

disability - having regard to the possibilities for accommodation at the time, and over the

next couple of years. And if there isn’t an accommodation or position available; then the

Employer will have met its obligations under the Collective Agreement and the Human

Rights Code.

I am not persuaded that this would have been a particularly onerous

obligation - which, in fact, might have amounted to no more than a more economical, and

more detailed, and more specific, and less formal version of what unfolded before me.

Indeed, if the promotional possibilities are as few as the Employer maintains they are,

then it would not have been very difficult at all to actually canvass these few options, in

light of Ms. Pengelly’s actual experience and restrictions. Nor would it have been

difficult to engage the Association, which, as the law now stands, is supposed to

cooperate in seeking such accommodations and help identify workable possibilities.

I do not know whether such inquiry would have produced a favorable

result for Ms. Pengelly in 2001 (or in the period that she remained on the list, like the

others, awaiting an appropriate posting). I do not have a full inventory of the jobs where,

perhaps, and perhaps with reasonable accommodation, a disabled individual might work

as a “Sergeant”. I do not know how significant the “brawn component” vs. the “brain

component” may be for all 900 or so positions of higher rank, or for the two hundred or

152

so openings that were projected when the 2001 intake was undertaken. Nor do I think that

it is necessary to speculate about how the Employer might have to distribute the limited

options available, among disabled claimants of various ranks (i.e. to explore Deputy

Chief Reesor’s concern that promoting disabled Constables into the few light duty

Sergeant’s positions available, might make it more difficult to accommodate more senior

and experienced disabled Sergeants). For in my view, the Employer's adherence to its

hard and fast rule, and its failure to make any effort to consider alternatives, is in itself a

breach of the Human Rights Code, as well as an "unreasonable" exercise of its

promotional powers under Article 3.01 of the Collective Agreement.

For the foregoing reasons, I find that Ms. Pengelly’s grievance succeeds.

In my view, she should not have been ruled “ineligible” because of her disability – or,

(what amounts to the same thing), because she could not meet the TPS “use of force”

requirements. She should have been entitled to compete, along with the other Constables;

then if she were otherwise successful in overcoming those evaluative hurdles, she should

have been considered for promotion into whatever spots might then be available.

***

In other words, in my view, the Employer’s 1999 policy is the legally

correct one, and should have been followed in Ms. Pengelly’s case.

***

I will look at the remedy for Ms. Pengelly later.

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VIII - THE “CORE VALUES” QUESTION

Officers Marchen, Reid and Forestall were all excluded on the basis of

behavior or a situation which was said to clash with the Employer’s Core Values – an

automatic disqualifier under the 2001 Promotional Rules.

The Association challenges the criteria and their application in each case.

Accordingly, it will be convenient look first at that “Core Values”

question generally (i.e. the legitimacy of the use of “Core Values” as an eligibility

requirement); and then to examine the application of those criteria – the exercise of

managerial decision making on this basis), in the case of each of the individual grievors:

Marchen, Reid and Forrestall.

Is adherence to the ““Core Values”” of the organization, an inherently “unreasonable” and thus illegitimate eligibility requirement for officers seeking promotion?

I am satisfied that I have “jurisdiction” to answer this question about the

use of the so-called “Core Values” as eligibility requirements for promotion – criteria

which I will also consider, more specifically, in connection with the individual grievances

of Officers Marchen, Reid, and Forestall. It will be recalled that those “Core Values” are

as follows: “honesty”, “integrity”, “fairness”, “respect”, “reliability”, “teamwork”,

“positive attitude”.

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The legitimacy of applying “Core Values” as an exclusionary test” arose

squarely in the grievances of Officers Reid, Forestall and Marchen; the Core Values

criteria pertain to the exercise of the Employer’s promotion function; and adherence to

“Core Values” was added to the promotional process in 2001, as an “eligibility

requirement” to be applied by all managers, to all applicants, at every step in the

screening process.

In this respect, there was a systemic change to a process to which Article

3.01 applies, and which had a direct impact on particular employees; and in the

circumstances, I think that it is open to the Association to argue that these new eligibility

criteria - shaping the exercise of the promotion function at all levels and for all applicants

- are not congruent with Article 3.01 of the Collective Agreement. In my view, I have

“jurisdiction” to consider the Association’s challenge.

However, because the Association mounted a generalized attack on the

use of “Core Values” as eligibility requirements at all (as well as a challenge to the

application of “Core Values criteria” to the specific grievors), I think that it is convenient

to deal first with this issue more panoramically – as Counsel did in argument.

I will then return to the application of the “Core Values” factors of

“honesty” and “integrity”, to the three individual grievors (Marchen, Reid and Forestall)

whose promotional prospects were negatively impacted by the application of these new

eligibility requirements.

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I might begin by observing that I agree with the Association that the “Core

Values” mentioned in the Mission Statement are open-ended, elastic and imprecise; that

in a large organization there is the possibility of inconsistent or discriminatory

application; and that there is a subjective element to these factors, which may be quite

problematic for an eligibility/exclusionary requirement, that effectively “trumps”

everything else. And that is especially so when the Employer takes the view that “Core

Value compliance”, may be gleaned from an officer’s behavior on and off the job, past

and present. Because, according to the Employer, the “Core Values” enquiry may range

over the whole spectrum of an officer’s life to see if s/he demonstrates the requisite “Core

Values”; and if s/he doesn’t, then s/he may be prevented from seeking promotion. It is

not confined to the period immediately preceding the application for promotion, nor to

the officer’s performance on the job.

Given the breadth of this purported enquiry, and the generality of the

“Core Values” involved, it is not difficult to hypothesize how the use of such “elastic

disqualifiers”, on a piecemeal basis, by individual managers, (or in accordance with the

shifting views of “the Chief”), could turn out to be “unreasonable” or “discriminatory” in

particular cases. Nor is it difficult to understand the Association’s concern about such

wide-ranging enquiry into matters that may seem to have little to do with the way in

which an employee actually performs on the job. Indeed, there is something to be said for

the Association’s rhetorical question: what aspect of life could not be fitted under the

umbrella of “Core Values” (“positive attitude” “fairness”, “teamwork” etc), and thus

become the basis for refusing to even consider an officer’s application promotion? In

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this respect, reference to “Core Values” adds an entirely open-ended and arguably

subjective layer of scrutiny; and may, in turn, amount to an open-ended and imprecise

exercise of discretion: an undefined and quite subjective power of “veto”, over an

officer’s employment prospects, preventing him/her from even applying for promotion.

There is a legitimate question about the depth of the Employer’s intrusion

into an officer’s “personal life”, in this way - even though it is admitted that, in some

circumstances, behavior “off the job” may be relevant to an officer’s employment, and,

conceivably, his/her “promotability”. And the Association is right to raise this concern.

I am also troubled that excluding an officer on this ground, “at the front

end”, may give rise to remedial questions of some complexity; because what the officer

has lost is an “opportunity” to participate in a process, and how does one remedy such

“loss of opportunity” if it is wrongly denied? Yet without the prospect of a timely and

effective remedy for breaches of the collective agreement, what incentive is there for a

manager to “get it right” – or to approach the task with the sense of proportion that I think

is called for by Article 3.01?

However, it seems to me that reference to such broad eligibility criteria is

not, in itself, "unreasonable" or illegitimate – which is to say, a per se breach of Article

3.01. Nor do they become so, simply because the articulated standards are open-ended, or

because they are described with a high level of generality, or because they might be

misapplied. For in this regard, such standards are no different from any number of

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legislatively or judicially created “tests”, which have to be fleshed out in the context of

particular cases - for example: the legal requirement that an applicant for admission to the

bar (or other trades or callings) must be "of good character" ; or that a teacher must not

engage in “conduct unbecoming" a member of the profession; or that an employer must

have "just cause" for the summary dismissal of an employee; or that a claimant is entitled

to demand “natural justice” from a quasi-judicial tribunal; or that there must be

“reasonable notice” for terminating a contract of employment; or, for that matter, (per

Article 3.01 itself), that the present Employer must not exercise its “exclusive”

promotional powers "without reasonable cause". Indeed, even the Charter of Rights and

Freedoms provides that important constitutional rights, may be subordinated if there are

countervailing considerations that are “reasonable and demonstrably justified in a free

and democratic society” – a test which is hardly a model of precision and predictability.

In each of these situations, there is a stipulated standard that is imprecise

or uncertain; but, in my view, it is not, for that reason, "unreasonable" or prohibited. Nor

does the fact that reasonable persons (be they Police Chiefs or Judges or arbitrators) may

differ on the content or application of such standards, in particular cases, mean that they

are ipso facto, “unreasonable” or “illegitimate” or a breach of the collective agreement.

For after all, it is not unusual for courts to agree on a general “test”, yet differ on its

application (see for example: Starson v. Swayze [2003] I S.C.R 722, where the majority

and minority disagreed on what was “reasonable”); and if the standard is justifiable on its

face (i.e. if it is reasonably related to a bona fide organizational objective, and not ex

facie unlawful), then the fact that its application has to be worked out on a case by case

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basis, does not make the standard “unreasonable” or “void” for uncertainty. It just means

that a managerial decision based on such malleable criteria may be more frequently

attacked; and that in a large organization, it may be more difficult to ensure that that all of

the managers are applying a consistent standard - that like cases are being treated alike

(recall that Article 3.01 also prohibits “discriminatory” treatment). And since these are

said to be eligibility requirements (instant disqualifiers – like limitation periods), they

may have to be looked at pretty closely.

However, in my view, the fact that the application of (for example) an

“integrity standard” may be unreasonable (i.e. without “reasonable cause” per Article

3.01) in particular circumstances, does not, in itself, make the standard per se

“unreasonable”. It merely sharpens the focus and raises some obvious questions on a

“reasonable cause” review. For to take an example from the instant case (see below): if

an experienced senior officer like William Blair (now Chief) did not appreciate that the

laying of criminal charges, automatically and in itself, so tarnished an officer’s

“integrity” that he was prevented from seeking promotion on a “Core Values” basis, then

it seems to me that there is something to be said for the Association’s concern about how

well, and how consistently, these criteria were understood by the senior officers charged

with the responsibility of applying them. And if, historically, a particular event, or

particular kind of behavior has never disqualified someone before (which means that

some existing supervisors may have it), then why should it disqualify an applicant now?

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But that is a question of the application of the “Core Values test”, rather

than the test itself; and it does not follow that the elasticity of the test makes it

unreasonable, per se - or that the potential for abuse, or error, or disagreement, means

that these factors cannot be considered at all. Nor that they cannot be made “eligibility

requirements”. It just means that the particular exercise of managerial authority may have

to be considered under Article 3.01, since such employer determination may not, on

arbitral review, establish “reasonable cause” for the denial of a promotion.

I appreciate that the Association does not want to litigate each time it

disagrees with the particular exercise of this managerial authority; and I also accept that

the injection of ““Core Values”” into the mix, broadens the platform on which such

discretion may be exercised. It introduces a note of uncertainty and subjectivity – the

very thing that recent iterations of the promotion process were intended to reduce.

But the fact is: that is the scheme that is contemplated by the collective

agreement itself; and that is inevitable, once arguably “subjective” factors or professional

judgments are included in the calculus at all; and it is hardly surprising that there may be

differing views about such things – as there may be about much else. But it seems to me

that the “safety valve” is Article 3.01, which empowers an arbitrator to consider the

individual case, and to overturn the decision, if the arbitrator thinks that it is appropriate

to do so.

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Moreover, despite the superficial attraction of the Association’s

“floodgates argument”, it appears (at least on the evidence before me) that of the

hundreds of applicants who have competed under a promotion regime where adherence to

““Core Values”” was an “instant disqualifier”, only three individuals were actually

excluded on that basis in 2001 (over two promotion cycles), and the circumstances of two

of them (Reid and Forestall – see below) are very unique. There has not, in fact, been an

explosion of litigation, nor (so far as I know) has there been a promiscuous use of “Core

Values” to exclude candidates – whatever the origin of the test, or the inclination of those

who (some years ago, now) decided to introduce that kind of uncertainty into the

promotion process.

*

The ““Core Values”” were “signed off” (inter alia) by the Association

itself, back in 1999; and the Association concedes that every one of them is an

appropriate consideration, in respect of particular applicants, in the context of a

promotional competition. But if that is so, and if these factors are organizationally

relevant, and capable of consideration and proof, then why can they not be elevated to

“eligibility criteria” as well - especially when there are no negotiated contractual

restrictions on what the Employer may look at, and when “honesty” and “integrity”, are

the only ““Core Values”” engaged in the instant case? For can it be seriously doubted

that someone who conspicuously lacks honesty or integrity ought not to be put in a

position of responsibility in a police organization – even if that position is a relatively

low-level one, within the bargaining unit; or that such individual’s ability to lead or

supervise others might be impaired by a manifest lack of “honesty” or “integrity”?

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This is not to say that the employer’s unilateral designation of these “Core

Values” as “eligibility” requirements, gives them any more “legal weight” than they

would otherwise have; and, in fact, as I have indicated in an earlier section of this Award:

such exclusionary “eligibility” rules may attract additional scrutiny, precisely because the

employer wants to give them decisive and preclusive weight. For by making these factors

“eligibility requirements”, a single and potentially subjective assessment, might have to

bear the total weight for explaining the negative outcome – as well as to justify the related

and equally important decision, not to give any weight whatsoever (or perhaps even any

consideration) to anything else in the officer’s record, however objectively compelling,

which might point in the opposite direction. As a practical matter, it may be more

difficult for the Employer to sustain the exercise of its authority on that basis -however

relevant “honesty” (or “teamwork”) might be as a general consideration for someone

seeking promotion.

In particular cases, such front-end disqualification, and refusal to look at

any countervailing considerations, may not survive close scrutiny, on a “reasonable

cause” test. And if it doesn’t, then the aggrieved employee may be entitled to a remedy.

However, I agree with Employer Counsel that the scheme of Article 3.01

contemplates the assessment of “discrimination” and “reasonable cause”, (pretty elastic

terms in themselves) in the context of individual denials of promotion; and, that this is the

negotiated protection (“safety valve”) for employees. Because, under Article 3.01, the

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Employer may have to establish “reasonable cause” for its determination, on whatever

basis it has been made – including whether some Core Values assessment prevents an

officer from applying for promotion.

* In my view, if such amorphous language as “good

character” can be used to exclude some one from various trades and callings (lawyers for

example), I do not see how it can be illegitimate to stipulate that kind of requirement for

promotions to positions of responsibility, in the Toronto Police Service . Moreover, if

“honesty” or “integrity” are relevant attributes for someone seeking promotion to such

positions of responsibility (and the Association concedes they are), then I do not think

that the Association can successfully claim that Article 3.01 prohibits the Employer from

establishing them as “eligibility requirements” - however difficult it may be to determine

whether their application in a particular case is “reasonable” (i.e. provides “reasonable

cause” for the result). Nor do I think that I should lightly “read in” such restriction to the

open-ended words of Article 3.01.

That said, I do not think that it advances the analysis very much, to refer to

hypothetical cases – however useful such exercise might be in teasing out the POSSIBLE

ambit of elastic language. Because, it seems to me that an arbitrator has to be very careful

not to go beyond the particular facts of the concrete case before him/her, unless it is truly

necessary to do so. And here it is not.

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In particular, I make no determination of how the current system (i.e. one

that includes adherence to “Core Values” as an “eligibility requirement”) might apply to

the facts of the so-called “Kennedy case”, which was decided by an arbitrator some years

ago, on a different basis, and which featured prominently in the Association’s “Core

Values” argument.

The Kennedy case involved an individual who had committed serious

criminal offences relating to his work as a police officer, yet (perhaps surprisingly)

remained an employee of the TPS; and some years later, having obtained a “pardon” (as

was required by the promotional “Rules” at that time), he applied for promotion.

However, in light of his history, Officer Kennedy was removed from the promotion

process by former Chief Fantino, on the basis that he lacked “integrity” - even though

Kennedy met the stipulated conditions for applying for promotion. That managerial

decision, in turn, was set aside by Arbitrator Joliffe, on the basis that the Chief could not

superimpose new eligibility criteria, part way through the promotion process; since the

Rules, as then framed, did not make adherence to “Core Values” an “eligibility

requirement”. Which (as I understand it) is what prompted the Employer to write “Core

Values” into the promotional scheme, as a “instant disqualifier”, at every stage of

consideration.

Superintendent Steve Grant testified that “Core Values” discussion pre­

dated Chief Fantino’s arrival on the scene, and that, in recent years, there has been an

ongoing debate about how to build these considerations into the assessment of officers at

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all levels. Those concerns date back many years - at least to the Morand Report, which

emphasized the need to inculcate these values, at all levels of the organization. However,

as I understand it, the Kennedy case became something of a flash point; and the

promotion system was later modified, to meet the concerns identified by Arbitrator Joliffe

in the Kennedy arbitration decision – writing in, what had not been explicit before.

In this sense, the Kennedy situation was the origin of the “Core Values”

eligibility criteria, which are under review in this case; and thus, from an historical

perspective, the notion of “Core Values”, and the facts of the “Kennedy case”, are

intertwined.

With that background, then, the question posed by the Association in

argument before me, was whether, today, “a Kennedy” would be excluded from

promotion on the basis of one or other of the “Core Values”, that are now stipulated as

eligibility requirements; because the Association says (among other things) that such

exclusion would collide with the purpose of a pardon, or might be a breach of the Human

Rights Code, or could not otherwise be justified under Article 3.01. It is said that the

exclusion of “a Kennedy” on this basis, reflects on the legitimacy of the use of the “Core

Values” disqualifier as a whole, and shows that the employer’s response to Kennedy, was

overreaching and unjustifiable, under Article 3.01.

*

In other words, I am being asked by the Association to consider the

situation in Kennedy, along with other similar hypothetical examples (as illustrated by

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other past cases), in order to conclude that the current requirement of honesty and

integrity (to repeat - these are the only “Core Values” engaged in the grievances before

me), cannot be stipulated as “eligibility criteria” at all.

* However, I do not think that it is appropriate to speculate

on the outcome of this hypothetical case, even if the Kennedy situation was what

prompted former Chief Fantino to introduce the notion of “Core Values” into the

promotional calculus in the first place. Because that case is simply not before me.

I do note that, in the course of this proceeding, I received the evidence of

Bill Blair, who is now the Chief of Police; and I think it is fair to say not only that his

views may be different from those of his predecessor, but also that his cautious “it

depends” approach (i.e. on the nature of the offence, the length of time since it occurred,

subsequent evidence of rehabilitation, etc.) is probably the best stance for an arbitrator to

take as well.

I might also note, by way of comparison, that this is the stance taken by

the Law Society of Upper Canada and by the Courts with respect to the admission of

persons to the bar, and to the readmission of persons who have been disbarred on “good

character” grounds (see for example, the decision of the LSUC and later the Divisional

Court in Re Robert Charles Watt and the Law Society of Upper Canada (2005), 255

D.L.R.(4th) 701, where an individual, like Kennedy, claimed that his past criminal

conduct should not irrevocably control his future). There, too, there is a balancing

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exercise undertaken, in order to determine the relevant question: whether past

misbehavior – even serious misbehavior – reflects on “integrity” now.

* In summary then, I agree with the Association that the

reference to “Core Values” injects an element of subjectivity back into a process that the

TPS has sought to make more “objective” in recent years; and that this may give rise to

real problems in application. However, I do not think that the introduction of “Core

Values”, as eligibility criteria, in itself, breaches Article 3.01 of the collective agreement.

Nor do I think that any useful purpose would be served by speculating on how those

criteria might be applied in hypothetical cases, to which Article 3.01 might apply -

especially “hard cases” like Kennedy. It is sufficient, for present purposes, to apply

Article 3.01 to the three individuals (Marchen, Reid, Forestall), whose situations I now

have before me: whether, in each case, there was “reasonable cause” to exclude these

particular officers from participating in the 2001 round of promotions.

IX – Officer Marchen

D. C. Marchen has been an employee of the TPS for more than 20 years,

and is an accomplished forensic analyst. He has also served his country with distinction

in Yugoslavia, as part of the Canadian contingent investigating war crimes; and in Zaire,

as part of the Canadian group providing humanitarian aid during the Rwanda civil war.

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As a result of his overseas service in Zaire, D.C. Marchen was one of

several police volunteers, who were awarded “Meritorious Service Decorations” by the

Governor General of Canada. The Citation on that Award notes (among other things),

that "the devotion and determination shown by these nine Canadians in the midst of a

humanitarian tragedy brought credit to themselves and honour to Canada”; and further

that the officers were successful despite "extreme living conditions, gunfire and a threats

by armed soldiers".

To the extent that the Employer takes into account "community service"

when evaluating applicants for promotion - as it does – D.C. Marchen has an unusual and

commendable record of service to Canada.

D.C. Marchen’s personal evaluations also indicate a respectable level of

on-the-job performance. In the 2001 "Uniform Performance Appraisal and Development

Plan", (that was completed around the time that D.C. Marchen was applying for

promotion), his appraisers record high levels of achievement in the stipulated "core

competencies" (routinely ‘exceeding’ expectations), as well as a strong work ethic,

mentoring skills, and continuing efforts to complete his Master’s Degree at a local

University. It is difficult to compare him directly with others; but I think it is fair to say

that Officer Marchen’s service record is a favorable one.

Superficially, therefore, D.C. Marchen met the written requirements for

employees seeking promotion (see Part IV of this Award); and his service record presents

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a plausible basis for promotional consideration – although, of course, there was a field of

qualified candidates, and his actual success would depend upon his performance in

relation to others. Nevertheless, if D.C. Marshen had not been rejected on the ground that

he did not demonstrate the “Core Values” of the TPS, he would have been evaluated for

promotion, in the normal course, and he might have been successful.

However, Officer Marchen was not permitted to participate in either of the

2001 rounds of promotions. His application was rejected because, as his Unit

Commander (Staff Inspector Stewart) wrote at the time:

…With the exception of Detective Constable Michael Marchen, all applicants were deemed eligible to participate in this [promotion] process. Detective Constable Marchen was entered on CPIC June 15, 1999 by the Durham Regional Police as a result of a Restraining Order taken out in Family Court against him by his estranged wife. This order is still in effect. There is also negative documentation in his file dated June 27, 2000, from Detective Sergeant Mike Hamel of Internal Affairs in relation to unlawfully having an exhibit (pellet gun) in his possession. On August 9, 2000, then Staff Inspector Ken Cenzura of the FIS Reprimanded him regarding this matter. I spoke to Detective Constable Marchen and advised him that he is not eligible to Participate (sic) in the process this year because of the above problems.

D.C. Marchen was ruled “in-eligible” to participate in the 2001 round of

promotions (both cycles) because, in his Unit Commander’s opinion, Officer Marchen

had failed to demonstrate the Core Values of “honesty” and “integrity”. That was the

stated “reasonable cause” (per Article 3.01) that was canvassed before me; and in this

respect, Officer Marchen is one of the three individuals who were rejected in 2001,

because it was said that they did not conform to the new “Core Values” “eligibility

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requirements” that had been added to the promotion process by Chief Fantino. [Reid and

Forestall were the others].

I might note at this point, that Staff Inspector Cenzura (who was directly

involved in the disciplinary event referred to in Staff Superintendent Stewart’s memo)

has described Officer Marchen’s disciplinary notation as a “verbal reprimand” for not

following proper procedures; and, in the course of cross-examination, (then) Staff

Superintendent Bill Blair indicated that he did not think that minor local discipline at the

Divisional level would normally have any affect on promotions – although he then added

that perhaps it might, depending on the circumstances.

I will have more to say later, about what that “verbal reprimand” actually

entailed in D.C. Marchen’s case. For the present, I simply note that this minor piece of

discipline is what ostensibly fueled a “Core Values enquiry”, transforming a seemingly

minor matter (see below), into an instant disqualification. For as will be seen: in 2001,

Officer Marchen’s Unit Commander considered Marchen’s disciplinary notation to be

very serious indeed; and in combination with the other circumstances described in his

memo, he thought there was a sufficient “blot” on Officer Marchen’s "honesty" or

"integrity" – “Core Values” eligibility criteria - to disqualify him from participating in the

2001 promotion cycle.

I should also note that it was necessary to engage the "Core Values"

eligibility criteria here, because there was no other basis for rejecting D.C Marchen

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outright; since he met all of the written eligibility requirements for applying for

promotion. Nor is there any evidence before me of any other disciplinary record; and in

the course of cross-examination, Staff Inspector Stewart (who has known Marchen for

years) conceded that there was no history of similar “documentation problems” either

(i.e. there was no history of “failing to follow proper procedures”, which is how Cenzura

described Marchen’s default).

Accordingly, this single failure to follow proper procedure (Cenzura’s

description) appears (at least on the evidence before me), to be an isolated incident, even

though it was later said to have a decisive influence on Staff Inpector Stewart’s

conclusion that D.C. Marchen was “dishonest” and lacked “integrity”. So whatever (then)

Staff Superintendent Blair thought about effect of minor discipline, Staff Superintendent

Stewart thought that Marchen’s default was very significant indeed.

That said, as is evident from the memo above: the “enquiry” undertaken

by Staff Inspector Stewart, touched not only on Officer Marchen’s performance at work,

(including this single disciplinary incident), but also on some features in Officer

Marhen’s “private life”, which Mr. Stewart thought were relevant to Marchen’s eligibility

for promotion - indeed not just “relevant”, but also confirming the disqualifying factors

that prevented D.C Marchen from applying for promotion at all in 2001.

*

In the result, Officer Marchen was disqualified; no evaluation of his

application was done was done; and he was not permitted to write the qualifying

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examination. And the stated basis for that disqualification, was that his record showed

that he did not meet the “Core Values” of “honesty” and “integrity” that had been added

to the promotional scheme as “eligibility requirements” in 2001.

* The Employer's position in this proceeding, was that the

verbal reprimand, the CPIC notation, and the Family Court reference were the only things

that Officer Marchen’s Unit Commander (Ed Stewart) took into account; and that these

blemishes were a sufficient departure from the Core Values of “honesty” and “integrity”,

to justify Officer Marchen’s rejection. Or as Staff Inspector Stewart himself put it in:

adherence to “Core Values” required an applicant’s record to be “pristine”; and D.C.

Marchen’s wasn’t. D.C. Marchen was not (again in Mr. Stewart’s words): “squeaky

clean”.

However, Mr. Stewart was closely cross-examined about what he had in

mind, and what he took into account, when deciding that D.C. Marchen should be

rejected on a "Core Values” basis; and based on that testimony, I find that the factors that

Mr. Stewart actually considered went somewhat beyond what is recorded above.

Moreover, because this incident illustrates the elasticity of the Core Values criteria, and

the difficulty of applying them consistently, I think that is worth reviewing the things that

prompted Staff Inspector Stewart to reach the conclusion he did. For not only did he treat

the “pellet gun affair” far more seriously than did the senior officer who imposed the

"discipline" in the first place; but it is clear that the memo produced at the time of D.C.

Marchen’s disqualification, does not really tell the whole story.

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Some time in 1997 or 1998, in the course of his work as a forensic officer,

D.C. Marchen came into possession of a pellet gun, which had been an exhibit in an

earlier criminal case. By that time, the criminal proceedings were completed so that in the

ordinary course, the exhibit would be sent off to be destroyed. And with that in mind,

Officer Marchen prepared the documentation necessary to submit the exhibit to the fire

arms unit for disposition.

But for some unaccountable reason, the exhibit was returned to him. Then

when Officer Marchen sent the exhibit off again, the pellet gun was returned to him

again.

I am unable to determine what happened, administratively, or what

prompted the repeated return of the exhibit that D.C. Marchen was trying to get rid of.

Marchen testified that there was considerable disorganization in the property disposition

unit, at that time, which he believes explains why the exhibit was handled in this way.

Nevertheless, instead of sending the exhibit back to them for yet a third

time, D.C. Marchen put the pellet gun aside (which he admits he should not have done).

He also used it as a "prop" in a forensic course that he was then teaching. Then it was put

aside once more, and eventually forgotten. And ultimately, it ended up in a box in his

basement - whence it surfaced, some months later, when Marchen’s estranged wife

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complained about it to Internal Affairs. By that time, though, Officer Marchen had moved

out of the matrimonial home, and the box had been totally forgotten for months.

I might add that while the exhibit was not handled as it should have been,

the evidence before me is that there was little danger to anyone, because the pellet gun

could not be used in its present state, and no one knew where it was. It was simply

misplaced and forgotten; and when it eventually came to light, it was returned to the

proper place for disposal – as should have been done earlier.

These facts were brought the attention of Staff Inspector Cenzura, to

whom the grievor then reported. There was an investigation by Internal Affairs. And the

result was a “verbal reprimand" for not following proper procedures.

That was the extent of the "disciplinary" response. There was no lost time

or monetary penalty; and certainly no "charges" under the Police Services Act. Nor was

there anything to suggest to the grievor that this minor disciplinary event reflected on his

“honesty” or “integrity”, or that it would later disqualify him from being considered for

promotion – a far more serious “penalty” than the “verbal reprimand” that he received at

the time.

In other words, the matter was dealt with by Cenzura as a relatively minor

breach of procedure; and, on the evidence before me, that is an entirely accurate and

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reasonable characterization of the incident -- particularly in light of D. C. Marchen’s

repeated, unsuccessful efforts to return the exhibit to its proper destination.

Furthermore, having heard D.C. Marchen’s explanation of the situation,

and having observed his demeanor and performance in cross-examination, I am satisfied

that there was no intention whatsoever to retain this item in his own possession, or to

"convert it" to his own use. Nor (so far as I can determine from the evidence before me)

was there any allegation of that, at the time.

What we have here, then, is a failure to follow procedures, followed by a

regrettable lapse of memory – which is perhaps understandable given what else was

going on in Officer Marchen’s life at the time. Because around the same time as this

incident occurred, Officer Marchen was going through a traumatic and acrimonious

matrimonial breakup - a dispute with his then wife (who is also a member of the TPS),

which caused considerable personal anxiety. And as a result, he moved out of the

matrimonial home, leaving some of his property behind in the basement – which included

the former exhibit, which he had put in a box and then forgotten about.

* And as we will see in a moment: that marital breakup, and

its aftermath, also figured into the reasons why Officer Marchen’s Unit Commander felt

that he should not be permitted to apply for promotion in 2001.

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As far as Officer Marchen was concerned, the pellet gun incident was

closed in August of 2000, when he acknowledged the “verbal reprimand” from Staff

Inspector Cenzura. Unfortunately for Officer Marchen, Staff Inspector Stewart did not

view of the “pellet gun” matter in the same sanguine light as Staff Superintendent

Cenzura did. For according to Mr. Stewart, the "pellet gun incident” was a serious

departure from the "pristine" record, which his understanding of “Core Values”, required

of anyone applying for promotion. Indeed, Staff Inspector Stewart’s testimony was

punctuated with phrases drawn from the Criminal Law; and indicated that he viewed the

incident as tantamount to “theft”.

In Staff Inspector Stewart’s opinion, the new emphasis on “Core Values”

meant that anyone with that kind of blemish on his record, would not be eligible for

promotion. Staff Superintendent Stewart testified that, in his opinion, the pellet gun

incident was "an integrity thing for sure", and that Marchen had "converted [the

exhibit]…. to his own use with no intent to return it to the rightful owner"; and that

"you're left with the definition of theft….there is dishonesty”.

In Staff Superintendent Stewart opinion, there was a serious problem of

"honesty" and “integrity", which engaged the "Core Values" exclusion, discussed in the

previous section of this Award. That is why he used the phrase "unlawfully” in the memo

recorded above - even though the only "unlawfulness” established in the evidence, is a

breach of administrative procedure.

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Moreover, lest there be any doubt about it: I reiterate that I have carefully

weighed the testimony of Mr. Marchen and on the evidence before me, there was no

"unlawfulness" at all. There was no “intention” to retain the pellet gun; and there was no

“dishonesty” either. Nor, interestingly enough, is there any indication that either the

Internal Affairs investigator or Mr. Marchen's former Unit Commander (neither of whom

testified before me), actually viewed it that way. And in my opinion, their restrained

approach is the legally correct one - in the sense that it is the one that is supported by the

evidence.

Be that as it may, it is clear from what he said in cross-examination, that

Mr. Stewart was not just concerned about the pellet gun incident. He was also concerned

about what else was going on in Officer Marchen’s personal life, at the time; and about

how that might reflect upon the reputation of the TPS, if Marchen were promoted, and

then later on, something untoward occurred. For in Staff Superintendent Stewart’s

opinion (as he put it): the grievor’s matrimonial problems and personal situation “could

cause a lot of trouble". Moreover, in the course of cross-examination, Counsel for the

Association, spent some time exploring with Mr. Stewart, what he meant by that.

D.C. Marchen testified that the breakup of his marriage in 1998-1999 was

acrimonious and emotionally difficult for him; and that his former spouse (they divorced

in April 2000, and had no direct dealings after May 1999), made a number of hurtful and

groundless allegations against him - including allegations of child abuse, and an assertion

that he was going to harm her. Those allegations were investigated by police at the time,

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and were found to be without foundation – although on one occasion, Marchen had to

surrender his firearm, while police considered his spouse’s assertion that she feared he

would bring the gun to court and shoot her. The firearm was returned shortly thereafter;

but of course, a notation was made of that event in police records pertaining to D.C.

Marchen - a notation which apparently caught the attention of Staff Inspector Stewart,

many months later.

From time to time Officer Marchen visited the matrimonial home (for

example, in connection with picking up or dropping off his children); and on one such

occasion there was an angry interchange and his wife called the local police, who

attended to investigate. No charges were laid against anyone, nor is there any evidence of

anything other than angry words. The police report of that incident notes that there were

no acts or threats of violence. However, that sequence of events later resulted in

Marchen’s agreement to a "Consent Order” “to keep the peace” - an Order that was

eventually vacated by the Ontario Court of Justice, in conjunction with a number of

support and custody determinations made by that Court (including joint custody of his

children; since it appears that no one objectively thought there was anything to the “child

abuse” allegations leveled by his estranged wife).

I should note here that this "Consent Order" did not involve any

admission or adjudication of wrongdoing on Mr. Marchen's part; and, as he explained it:

his family lawyer, advised him that it would be prudent to simply consent to a restriction

to which he was planned to adhere in any event, since it would help allay his wife’s fears.

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There was no finding of wrong-doing – although Staff Inspector Stewart apparently

believed that to be the case.

Staff Inspector Stewart’s evidence on this point was a little difficult to

follow, but it is plain that he thought that the Order was a pretty serious scenario,

reflecting some impropriety on Mr. Marchen’s part. Mr. Stewart also thought that there

was a real risk of domestic violence, although the evidence does not support that fear.

Unfortunately for D.C. Marchen, these events also resulted in the CPIC

notation; because, I am told, such entry on the computer is done more or less

automatically, whenever there is any alleged incident of domestic conflict, so that any

police officer visiting the scene thereafter, will be alerted to this potential problem. And

once created, it appears that this CPIC record is quite difficult to remove, unless all of the

persons involved are prepared to cooperate - which was not the case for D.C. Marchen’s

wife, at that time.

So in the result, the CPIC notation, along with a record of these other

incidents and accusations, remained in police records when D.C. Marchen applied for

promotion in early 2001.

However, there is no plausible evidence before me (and Staff Inspector

Stewart ultimately admitted in cross-examination that there was no actual evidence

before him) of any illegal behavior or violence or threats on Mr. Marchen’s part - despite

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the fears or allegations expressed by D.C. Marchen’s ex-spouse on various occasions.

Nor was there been any actual incident of domestic violence. Moreover, given the

identity of the actors in the piece, and the police scrutiny of the situation, I have no doubt

whatsoever that there would have been charges laid, if anyone had thought that such

charges were warranted.

There were, however, various allegations and fears and indications of

domestic turmoil, all of which made their way into Mr. Marchen’s record, and which his

Unit Commander was aware of, when he came to consider Mr. Marchen’s application for

promotion. (Note that the “record” in this case, includes not only Mr. Marchen’s

personnel record, but also the internal affairs material that was available to Mr. Stewart,

at the time he was considering Marchen for promotion).

*

That said, the emotional upheaval associated with this marriage breakup

did take its toll on D.C. Marchen, and it did have an impact on his work. In late 1998 he

was depressed and had thoughts of suicide; so he sought help through Employee

Assistance Program and Employer’s Medical Unit, and went on sick leave for some

weeks - returning to duty around the end of March 1999 (i.e. about two years before he

applied for promotion).

There is no doubt therefore that D.C. Marchen was under significant

psychological stress, for a time; and that too, made its way into his record.

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Staff Inspector Stewart testified that the CPIC notation was a major

concern and a “roadblock” to Marchen’s promotion in 2001; and, the fact that it was still

in place, raised, in Staff Inspector Stewart’s mind, an "integrity issue". Staff

Superintendent Stewart testified that, in his opinion, Mr. Marchen should not have had

any trouble removing the CPIC reference if there were no reason for it to be there; but

because it was still outstanding, it was a significant impediment to promotion.

Staff Superintendent Stewart said that he could not understand why Mr.

Marchen would have any difficulty expunging this record; and he (Stewart) could not

understand why Marchen's former spouse would not cooperate in that regard, if

everything really was “on the up and up”- as he put it.

The inference is that Staff Superintendent Stewart did not think that

everything was “on the up and up”; and that this was a matter properly taken into

account, when he considered Marchen for promotion to a position of responsibility, in the

bargaining unit.

Mr. Marchen’s legal advice (not challenged in these proceedings), was

that the CPIC notation could not be removed without the consent of his former spouse,

and that she was not prepared to assist him in this way. Nor is it clear how she could be

forced to do so; and since Mr. Marchen did not expect that the CPIC reference would

have any effect upon him, he did not take any steps in this regard, until the problem

surfaced in 2001.

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In any event, in Staff Inspector Stewart’s opinion, the grievor’s

matrimonial problems could "cause a lot of trouble"; and he hypothesized that there must

have been some valid concern on the wife’s part, or the restraining order would not have

been issued in the first place.

I find that Staff Inspector Stewart took that into account as well.

Staff Inspector Stewart also noted that D.C. Marchen had had

psychological problems, and that on one occasion, his firearm had been removed from

him (which was true, as a result of a fear expressed by the ex-spouse, but, as noted above,

the weapon was returned when that fear proved to be groundless). Mr. Stewart testified

that he had concerns about the grievor’s character and ability to function “with all this

going on". Staff Inspector Stewart was concerned about the grievor’s equanimity, and

how his psychological problems back in 1998-99 might impact upon his performance, if

he were promoted – in 2001, to take practical effect, in the two years following.

Staff Inspector Stewart testified that he was also concerned about the

possibility of domestic violence, and how that might reflect on the reputation of the TPS.

He said that it would be risky for the Toronto Police Service to "rubberstamp the grievor"

as a good candidate when (as he put it) there were a lot of dead people because of

domestic violence; and in Staff Inspector Stewart’s opinion, it would look bad for the

Toronto Police Service if Marchen were promoted and later on, there was an offense

against his former wife. Staff Inspector Stewart noted that in recent years there has been a

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lot of sensitivity about domestic violence; and he opined that if there were a problem and

it ever came out at a hearing that the grievor had been put up for promotion, then the

Employer would face criticism.

Staff Inspector Stewart also noted that while the grievor would have no

contact with domestic situations in his current forensic role, he would have to deal with

domestic issues if he became a road Sergeant - the inference being that Marchen’s ability

to deal with such situations would be impaired, somehow, because of his own unhappy

experiences.

***

I find that Staff Inspector Stewart took into account all of these factors

when he decided that D.C. Marchen should not be put forward for promotion.

In Staff Inspector Stewart’s opinion, the “Core Values” items of

“integrity” and “honesty” were broad enough to cover the situation; and they prevented

D. C. Marchen from applying for promotion in the spring, and also later on, in the fall, of

2001.

***

I am satisfied that Staff Inspector Stewart was acting in good faith and in

what he believed to be the best interests of the TPS. He was concerned about

appearances. Furthermore, as he understood the "Core Values" eligibility criteria, he was

obliged to exclude from consideration, anyone who was not (in his words) "pristine" or

"squeaky clean"; and he believed that, in the shadow of Chief Fantino’s concern about

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ethical issues, these assessments required a more searching scrutiny, than had ever been

required before. Indeed, that is why they were made “eligibility” requirements, and were

to be considered at every level of the promotion process.

Adherence to “Core Values” had been made an indispensable condition

for promotion in 2001; and as Staff Inspector Stewart saw it: the grievor’ s record did not

meet that high standard. Moreover, Staff Inspector Stewart also thought that the grievor

should not be put forward for promotion, until there was more distance from the domestic

turmoil that had surfaced in 1998-99. So Marchen was ruled “ineligible”.

*

However the question for me, is not whether the grievor’s record was

“pristine” or “squeaky clean”, or whether Mr. Stewart was acting in good faith (which he

undoubtedly was) but rather whether there was “reasonable cause” for excluding

Marchen from even being considered for promotion. And, in my view, there was not.

*

I am satisfied on the totality of the evidence before me that there is no

persuasive evidence of "dishonesty" or a "lack of integrity" - the nominal reason for

rejecting Mr. Marchen; and that the minor disciplinary "offense" discussed above, was as

trivial as Staff Inspector Cenzura apparently treated it. Nor are the other things that Staff

Inspector Stewart mentioned, sufficient (“reasonable cause”) to justify rejecting Officer

Marchen’s application for promotion.

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On the evidence, there is no real question of "unlawfulness" here, but, in

essence, only a failure to follow proper procedure; and in my opinion that does not rise to

the level of "dishonesty", nor establish a "lack of integrity" – the reasons advanced from

ruling Marchen ineligible. And in any event, it does not provide “reasonable cause” for

refusing to even consider the grievor’s application for promotion - which otherwise meets

the written requirements for participation in the promotion process.

Nor in my view do the grievor’s personal troubles, or the swirl of

allegations and accusations emanating from his former spouse, (which were investigated

and rejected at the time), provide “reasonable cause” to refuse to consider Marchen’s

application for promotion.

Given the fact the Mrs. Marchen was herself a member of the TPS and

that she had actively engaged police involvement on more than one occasion, I do not

doubt that there would have been charges, had there been any basis for any of her

allegations. But the fact is: there were none. There is no actual evidence of violence or

threats of violence – despite Staff Inspector Stewart’s fears, about how the TPS might

look, if such event unaccountably occurred (recall that the grievor and his wife had

divorced by the time of the 2001 promotional round).

*

Finally, in my opinion, the references to the grievor’s psychological and

marital problems are equally irrelevant - however, genuinely concerned Staff Inspector

Stewart may have been for what might happen or how the Employer might look if it did.

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That concern was total speculation on his part; and in my view, should have formed no

part of his assessment of the grievor’s candidacy.

*** For the foregoing reasons, and on the evidence before

me, I find that the Employer did not have "reasonable cause" to reject Mr. Marchen’s

application for promotion. I find that he should have been entitled to participate in the

2001 competition, along with the hundreds of others who applied for promotion in 2001.

In my view, his exclusion breached Article 3.01 of the collective agreement.

As with Ms. Pengelly, I will look at the “remedy” question later.

X - Officers Reid and Forestall

As with the other individual grievors, the Association has put together a

package of documents drawn from the employment records of officers Reid and

Forestall; and these documents paint a fairly positive picture of their careers. There are

good performance evaluations, notations that Reid and Forestall have frequently

exceeded the "core competencies” of their current job, and notations of superior

performance, on those scales which the Employer itself has used, in the past, to evaluate

an officer’s accomplishments. Moreover, Officer Forestall was not removed from the

2001 promotional processes until after some favorable assessments had been of his

candidacy, and those assessments were very favorable. In fact, William Blair thought that

he had considerable potential - conceding in cross-examination that he (Blair) did not

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then understand that he was to supposed to exclude such officers, peremptorily, on a

“Core Values” basis.

In the spring promotional screening exercise Forestall was rated by his

Unit Commander as an "exceptional" (not just “superior”) candidate; he got 38 out of a

possible 40 marks on the Unit Commander’s assessment; he had a good exam mark; and

he got an interview. In the second, (November) promotional screening cycle, Forestall

got 39/40 on the Unit Commander’s scoring, and was again rated by his Unit Commander

as an “exceptional” officer. Accordingly, had Forestall not been disqualified before

completing the screening process, he would, on the evidence before me, have gone on to

the eligibility list for promotion, and would have been promoted sometime in the next

two years.

Officer Reid scored less well in the spring 2001 promotion intake and did

not qualify for an interview. But as the Employer has maintained throughout this case in

respect of other grievors: the lack of success in one cycle, does not mean that an officer

will fail again, in the next round, when the “field” is different. Thus, Officer Reid had a

viable candidacy for the second promotional screening cycle in 2001, had the outstanding

criminal charges not prompted his removal from the promotion process.

In the result, what effectively excluded officers Reid and Forestall from

successful participation in the 2001 promotion processes, (Forestall from both, and Reid

from the second), was not any overt deficiencies in the their personal performance, or

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their abilities, or their work history. Rather, what prompted their removal from the

promotional screening process, (despite, significant success in Forestall’s case), was the

fact that they were both charged with criminal offenses, in connection with a high-profile

“controversy”, involving the "drug squad" at Division 52 and an investigation of

(alleged) corruption in the TPS.

I have put the word "controversy" in quotes in the previous paragraph,

because while there is no doubt that the situation at Division 52 precipitated considerable

media attention, and was regarded at a major scandal within the TPS, it is less clear

whether those allegations would actually be substantiated - there being a big difference

between: what is alleged; what is true; and what can be proved to be true in the manner

required by the law.

Nor is media attention to a “story” of this kind, any real indication of

whether the allegations upon which that story is based will ultimately turn out to be true –

either in respect of particular officers, or more generally.

The old adage that “where there’s smoke, there’s fire” isn’t necessarily

sustainable in fact or law, nor is it necessarily a sound operational rule for business

decision making; and, if anyone should appreciate that an allegation, or suspicion, is not

the same as guilt (let alone proof of guilt), it should be the senior officers of a police

service. Charges once laid may turn out to be unfounded, or can be stayed or withdrawn,

for any number of reasons – as it turned out, eventually happened for Reid and Forestall.

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And, in Reid’s case, some of the companion Police Services Act charges were withdrawn

as well, leaving only some comparatively minor assertions respecting keeping proper

documentation.

Furthermore, while (as I understand it) a police officer is supposed to have

"reasonable and probable cause" to lay criminal charges in the first place, that, too, is an

assertion that does not always withstand judicial scrutiny. Charges, once laid, may end up

going nowhere (as was the case with Forestall and Reid); and whatever the Employer

may have believed at the time (or perhaps still believes), the fact is: no-one has sought to

actually substantiate the serious allegations that were leveled against either of these two

officers – which would at least have given them an opportunity to defend themselves.

And of course, in our society, the “presumption of innocence” is accorded such high

importance, that it has been given specific constitutional protection (see section 11(d) of

the Canadian Charter of Rights and Freedoms). In our society, it is up to the state to

prove what it alleges, before an accused can be stigmatized and penalized.

*

In summary then, what defeated Reid and Forestall’s quest for promotion

in 2001, was not that they had actually engaged in any criminal misconduct (like Officer

Kennedy did), but rather, that there was an outstanding criminal charge; and in a senior

officer’s view, that was a sufficient "“cloud”" [my metaphor] on their “integrity” or

“honesty” (“Core Values”), that they should be precluded from participating in the

promotional screening process altogether, until such “cloud” was dispelled.

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In the Employer’s opinion, it was neither necessary nor appropriate to

consider any of the other factors in these grievors’ files, nor any of the positive features

of their past careers – particularly Officer Forestall, whose service record and

performance were very good. Because both officers “failed” the “Core Values” test. And

in Officer Forestall’s case, that meant removal from a process which had already been

engaged, and in which he had already achieved a significant measure of success.

*

The parties have reached agreement on the "background facts" for each of

these officers, which they have put before me in the form of an "Agreed Statement of

Fact" (along with supporting documentation); and despite certain "jurisdictional

arguments" that were raised by Employer Counsel at the end of this phase of the case

(many months after those facts were agreed upon), I am satisfied that the situation of

these two officers was put squarely before me, and that any "impediment" to

“arbitrability” was waived.

*

I agree with Association Counsel that if there were problems with the

format of the grievance, or my authority to answer the key question raised on these two

grievances (i.e. whether a criminal charge, ipso facto, can properly exclude officers Reid

and Forestall from consideration), then that should have been raised earlier on, and not

just at the end of the day, in argument. For at the very least, that would have saved much

time and money in marshaling evidence about the situation of these particular officers, in

a case which already seemed to “grow like Topsy”.

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I should also note that as far back as September 2002, prior to the

commencement of these proceedings, Counsel for the Association wrote to his

counterpart, outlining, in a 30 page letter, the ambit of what he described as the

“promotional process grievance”; and in that document, the situation of officers Reid and

Forestall is mentioned at pages 8, 15, 22 and 23. Among other things, it is there alleged,

in respect of each officer, that he

“was unreasonably unjustly and arbitrarily barred from participation in the promotional process due to the consideration of irrelevant factors, namely outstanding criminal charges which were later stayed”.

And, as I have already mentioned: for the purposes of this phase of the case [the so-called

“Core Values questions” as exemplified, in part, by the situation of grievors Reid and

Forestall] the parties worked out the agreed facts, that I have recorded below, for both

officers.

* In the circumstances, and given the way that this case

unfolded, I do not think that it is appropriate to take a narrow sentence-parsing approach

either to my jurisdiction, or to the broad brush “grievances” that were put before me. I do

not think that these cases should be won or lost on the technicality of form – at least,

where, as here, both parties have had a full opportunity to canvass whatever facts or law

might pertain to the application of Article 3.01 to Reid and Forestall’s situation in 2001,

and to fully argue whether their exclusion from the 2001 promotional round, was a

breach of Article 3.01.

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There were no surprises here; and, in my view, no issues of “natural

justice” either These questions were put squarely before me, and they were carefully and

comprehensively argued by both parties. And they arose in connection with the

Employer’s “exercise” of its promotional function – which is what Article 3.01 is about.

Accordingly, in my view, I have the authority to decide the key question

that was raised by each of these grievors, and to which both parties addressed themselves

at some length; namely: whether pending criminal charges were sufficient, standing

alone, to justify an officer’s removal from the promotional screening process, thus

effectively denying these officers even the possibility of promotion, in 2001- 2003.

That is the change in approach that was introduced by Chief Fantino for

the 2001 promotional round (formerly officers in this situation had been allowed to

compete, but their actual promotion was delayed); and that change is what engaged the

Association’s attention in the case of Reid and Forestall (and Marchen). Because, as the

Association sees it: this was not the position taken or thought to be warranted by the

Employer in the past; and, this new hurdle for a legally innocent (and possibly actually

innocent) employee, was not supportable on a “reasonable cause” basis. In this regard,

the Association asserts that the former “balance” was the legally correct one, having

regard to the terms of Article 3.01; and that the “new rule” was over-reaching and un­

justificiable: there was no “reasonable cause” for this result, for these officers. The

agreed background is set out below.

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Agreed Statement of Facts re Police Constable Jonathan Reid

1. PC Jonathan Reid has been a member of the Toronto Police Service since 1988.

2. PC Reid was assigned to Primary Response at 11 Division from November 1988 until December 1990. From 1991 to 1994 he was assigned primarily to the Major Crime Unit at 11 Division. From 1994 to 1996 he worked in Street Crime Unit at 1 District Head Quarters. From January 1996 to January 1999 he worked in the Drug Squad at Central Field Command. From January 1999 to February 2000 he was assigned to Primary Response and Foot Patrol at 14 Division. From February 2000 to December 2000 he was with the Criminal Investigation Bureau at 14 Division.

3. PC Reid’s promotional evaluations from 1999 and 2001 are attached.

4. His personnel file contains three District Awards and a Central Field Command Award.

5. On November 22, 2000 PC Reid was charged criminally by Det. Sgt. S. Pipe of the Toronto Police Service with two counts of theft, two counts of fraud, two counts of forgery, two counts of uttering a forged document and two counts of breach of trust (Tab A). Five charges under the Police Services Act were laid at the same time as the criminal charges (Tab B).

6. At the direction of the Crown, the PSA charges were stayed pursuant to Section 69(16) of the PSA until the conclusion of the Criminal Code proceedings (Tab C).

7. These various charges arose out of a major investigation into the alleged illegal conduct of Reid and seven other former members of the Central Field Command (“CFC”) Drug Squad. They related to the alleged misappropriation of police funds used to pay drug informants. These charges were the subject of considerable media attention, much of which arose from press conferences held by the Toronto Police Service (Tab D).

8. As a result of this investigation and these charges, the prosecution of numerous drug offence charges against persons outside the Toronto Police Service were stayed (Tab E).

9. PC Reid was initially suspended from duty when the criminal charges were laid (Tab F). However, he was reinstated and assigned to restricted duties at the Police College on December 13, 2000 (Tab G), where he instructed other officers in the operation of police vehicles.

193

10. PC Reid applied for promotion to Sergeant on March 26, 2001. Both his Unit Commander (Supt. Paul Gottschalk) and the Staff Superintendent (Bill Blair) felt that their role at the time was to evaluate Reid without regard to the outstanding charges. On the 2001 Unit Commander Assessment Score Sheet PC Reid scored 32 out of 40. He lost three marks because he had not yet completed 15 years of service. He received a score of 10 out of 15 on the Unit Commander’s Overall Assessment of Candidate’s Potential. He scored 90 out of 110 on the exam. He did not receive an interview.

11. In August, 2001, Chief Julian Fantino requested the assistance of the R.C.M.P. in investigating dozens of additional allegations concerning the CFC Drug Squad which had come to light following the initial laying of charges the previous November. A Special Task Force was established. This event again attracted considerable media attention (Tab H). Charges against numerous drug charge suspects continued to be stayed and several lawsuits were initiated against the Toronto Police Service (Tab I).

12. PC Reid continued to work at the Police College. He next applied for promotion in November of 2001. He filed his promotion through the internal mail to his unit commander, Superintendent Ken Cenzura. On January 16, 2002, he was advised by Staff Sgt. Button that he would not be permitted to participate in the promotional process. He was shown a copy of the Unit Commander Assessment Score Sheet signed by Superintendent Cenzura which indicated that his score was 0 out of 40.

13. PC Reid spoke to Superintendent Cenzura on February 5, 2002. Superintendent Cenzura told PC Reid that Staff Superintendent Fairclough had told him that PC Reid would not be allowed to participate in the promotional process due to the outstanding charges.

14. On or about February 11, 2002, PC Reid received a letter from Acting Chief David Dicks clarifying his restrictions (Tab J).

15. All of the pre-Task Force criminal charges against P.C. Reid and the other seven members of the CFC Drug Squad were stayed eight days later on February 13, 2002. This decision was made by the Crown, which advised the presiding Judge that proceeding with those charges at that time “may compromise an ongoing criminal investigation” (Tab K). This statement referred to the wider investigation which the Special Task Force was still conducting. Once again, this event attracted considerable media attention (Tab L).

16. The five PSA charges remained outstanding (see paragraph 5, above).

17. P.C. Reid and a number of other police officers (including P.C. Greg Forestall) continued to be the subject of investigations conducted by the

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Special Task Force. As this criminal investigation progressed, the Crown took the position that it intended to focus upon the more serious allegations and the more significant alleged offenders.

18. On February 14, 2003, the one-year period during which the November 22, 2000 criminal charge could have been reactivated against P.C. Reid expired.

19. On January 7, 2004, criminal charges were laid against four of the seven members of the CFC Drug Squad who were originally charged along with P.C. Reid. Two additional officers were also charged. P.C. Reid was not charged and is named as an “un-indicted co-conspirator” in the indictment (Tab M).

20. On November 21, 2003, three of the five outstanding PSA charges were withdrawn (Tab N). Two PSA charges remained outstanding. Those charges arise from PC Reid’s alleged failure on May 14, 1998, to submit a report prior to going off duty and to his alleged failure, on April 22, 1998, to fully document a meeting in his memorandum book.

21. Effective [date omitted from agreed statement] PC Reid resumed full duties with the Toronto Police Service.

22. It is (and has always been) the position of the Toronto Police Service that P.C. Reid did, in fact, perform the acts which lay behind the criminal charges which were laid on November 22, 2000 and which were stayed on February 13, 2002. It is the position of P.C. Reid that the allegations are false.

Agreed Statement of Facts re Police Constable Greg Forestall

1. Police Constable Greg Forestall joined the Toronto Police Service in September 1987.

2. P.C. Forestall has spent the bulk of his policing career performing investigating assignments as opposed to uniformed duties. He has worked extensively in the Major Crime Unit as well as the Criminal Investigations Bureau, the 11 Division Domestic Incident Response Team and the Central Field Command Drug Squad.

3. P.C. Forestall’s personnel file is attached.

4. P.C. Forestall took part in the promotional process in 1997 1999 and 2001. In 1997, wrote the exam and received an interview. He was not promoted.

5. In 1999, he again applied for promotion. In the 1999 promotional assessment he was rated as exceeding expectations in virtually all

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categories and received a rating of superior performance in all core task categories. His overall numerical assessment was 31 out of a possible 32. P.C. Forestall did not write the promotional examination in 1999.

6. P.C. Forestall’s Performance Appraisal for the period ending September 3, 2000 is attached.

7. P.C. Forestall applied for promotion to the rank of Sergeant on march 26, 2001. At the time of his 2001 application, he was a Detective Constable assigned to the Major Crime Unit at 11 Division.

8. P.C. Forestall received a score of 38 out of 40 on his Unit Commander Assessment Score Sheet. The only marks he lost were related to his length of service as he had not yet completed 15 years with the Toronto Police Service. His Unit Commander’s Overall Assessment of Candidate’s Potential score was 15 out of 15. The Unit Commander Assessment Score Sheet was signed by Staff Inspector George Cushing and Staff Superintendent William Blair.

9. P.C. Forestall wrote the promotional examination scoring 87/110 which was high enough for him to receive an interview by a panel of senior officers.

10. P.C. Forestall was interviewed on June 8, 2001. He scored 62/115 on the interview. His total score at the conclusion of the 2001 promotional process was 67.17/100.

11. P.C. Forestall scored higher than 12 candidates who were subsequently promoted to Sergeant. The lowest score of a successful 2001 promotional candidate who was promoted as a result of that promotional competition was 61.74/100.

12. As a result of investigations arising out of charges laid against P.C. Jonathon Reid and others in November, 2000 (see P.C. Reid Facts), P.C. Forestall was charged with perjury by Detective Sergeant Randy Franks of the Toronto Police Service on June 12, 2001 (Tab A). The charges arose from an allegation that, in the process of conducting a drug investigation, P.C. Forestall swore a false affidavit in order to obtain a search warrant. This accusation attracted media attention (Tab B). No Police Services Act charges were laid.

13. Pursuant to Procedure 14 – 10, a background check was conducted regarding P.c. Forestall prior to the June 8, 2001 interview (Forestall Book of Documents, pages 12-17).

14. On June 18, 2001 P.C. Forestall received a memo from Julian Fantino, the Chief of Police (Forestall Book of Documents, page 11), which stated as follows:

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This will serve to inform you that your name will not be included on the promotion list for Sergeant. This Command is dedicated to ensuring that candidates that who are being recommended for promotion exhibit the highest level of integrity and have demonstrated their adherence to the core values of this service. After a careful review of your file, it was agreed that you did not meet the above standards. Regretfully you will not be included on the eligibility list. [emphasis added]

Signed Julian FantinoChief of Police

15. Shortly after being charged, P.C. Forestall was transferred from the major Crime Unit to the Crime Prevention Unit at 11 Division and placed on restricted duties. While in the Crime Prevention Unit, P.C. Forestall was the Unit’s Community Liaison Officer. In this capaCity, he liaised with community groups over the telephone. When he worked with such groups in person, he was accompanied by another police officer of higher rank.

16. In August, 2001, Chief Julian Fantino requested the assistance of the R.C.M.P. in investigating dozens of allegations which had come to light following the initial laying of charges against eight other members of the CFC 17. Drug Squad the previous November. A Special Task Force was established. This event attracted considerable media attention, much of which arose from press conferences held by the Toronto Police Service (Reid Facts, Tabs H and I).

18. P.C. Forestall next applied for promotion in December, 2001. He put his application in the internal mail addressed to Staff Inspector George Cushing. Staff Inspector Cushing was the Unit Commander at 11 Division.

19. After submitting his application for promotion, P.C. Forestall was advised by Staff Sergeant Ellarby, his direct supervisor, that he had again scored 15/15 on the Unit Commander’s Overall Assessment of Candidate’s Potential portion of the Unit Commander Assessment.

20. In January 20, 2002, P.C. Forestall met with Staff Inspector Cushing and was advised that his promotional documentation had been returned by Staff Superintendent William Blair. Staff inspector Cushing said Staff Superintendent Blair had said that P.C. Forestall would not be allowed to take part in the 2002 promotional process due to the outstanding charges. P.C. Forestall’s original Unit Commander Assessment Score Sheet score of 39/40 for the 2002 promotional competition was later changed to 0/40.

21. On February 7, 2002, P.C. Forestall was served with a Notice that he was under investigation by the Special Task Force in regards to allegations of perjury, fabricating evidence, obstructing justice, breach of trust and PSA violations (Tab C).

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22. On February 26, 2002, the perjury charge against P.C. Forestall was stayed. This decision was made by the Crown, which advised the presiding Justice of the Peace that proceeding with that charge at that time “may compromise an ongoing criminal investigation” (Tab D). This statement referred to the wider investigation which the Special Task Force was still conducting.

23. P.C. Forestall and a number of other police officers (including P.C. Jonathan Reid) continued to be the subject of investigations conducted by the Special Task Force. As this criminal investigation progressed, the Crown took the position that it intended to focus upon the more serious allegations and the more serious alleged offenders.

24. On February 11, 2002 and April 17, 2002, P.C. Forestall received letters from Acting Chief David Dicks specifying certain restrictions (Tab E).

25. On February 27, 2003, the one-year period during which the June 8, 2000 perjury charge could have been reactivated against P.C. Forestall expired.

26. On January 7, 2004, numerous criminal charges were laid against six former members of the CFC Drug Squad (Tab F). P.C. Forestall is not charged but is named as an “unindicted co-conspirator” in the indictment.

27. It is (and has always been) the position of the Toronto Police Service that P.C. Forestall did, in fact, perform the acts which lay behind the criminal charge which was laid on June 8, 2001 and stayed on February 26, 2002. It is position of P.C. Forestall that the allegations are false.

28. P.C. Forestall is currently not charged with any criminal offences or Police Services Act charges, and as of December 6, 2004, resumed full duties with the Toronto Police Service.

NOTES: Under the law of conspiracy, the Crown must name the accused in the indictment. The Crown may list the other parties with whom the accused allegedly conspired either by name or as “persons unknown”. Those persons at the top of each count are the accused. Those persons who are listed after the recital of the conspiracy are colloquially known as “un-indicted co-conspirators.”

An un-indicted co-conspirator has no status in a criminal proceeding involving a named accused. He or she has not right to disclosure of the evidence and cannot participate in the proceedings. An un-indicted co-conspirator cannot challenge the correctness of the allegations in the indictment in a criminal proceeding, since as a non-accused he or she has no status.

It is not incumbent on the Crown to prove the involvement of every member alleged to be part of a conspiracy. Even if an un-indicted co-conspirator were proven at trial not to be involved in the conspiracy alleged, the crown could still get a conviction on the

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indictment as it was originally framed. Put differently, if the conspiracy proven does not even involve one or more of the accused or un-indicted co-conspirators, the conspiracy proven is still said to be that alleged in the indictment. See: Regina v. Douglas (1991), 63 C.C.C. (3d) 29 at 32, 45 (S.C.C.)

*** As will be seen: the Employer formed the view that

because of the outstanding charges, these two officers did not meet the high standard of

“integrity”, that was added as an eligibility requirement to the 2001 promotional scheme;

and on this basis, officers Reid and Forestall, were removed from participation in the

2001 promotional screening process, which otherwise, might have led to their promotion

– in Forestall’s case virtually certainly, and in Reid’s case, possibly.

The impediment to proceeding through the screening process to the

eligibility list, (and thus the operative reason why promotion was not actually considered

for Reid and Forestall), was these outstanding criminal charges – although both officers

proceeded part way through the process, because their senior officers were apparently

unaware of the Chief’s view that the charges, in themselves, would be an instant front-

end disqualifier (which I might note illustrates the difficulty of ensuring a uniform

understanding of imprecise “Core Values” criteria of this kind).

In any event, these individuals were ultimately ruled “ineligible” as

lacking demonstrated “integrity”. So for them, the operative reason why they were not

promoted, can, I think, be traced to this determination of “eligibility; even though, in

Reid’s case, a promotion was far from certain, and even though the Association concedes

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(see below) that it would have been appropriate to delay any actual promotion, until the

“question” about their “integrity” had been dealt with.

*** The Employer asserts that there was “reasonable cause”

for its determination to preclude these officers from participating in the 2001 promotion

processes, and I will look at the Employer's reasons for that decision, a little later on.

However, on this branch of the case, I think it is important to reiterate that what divides

the parties, is not whether the outstanding criminal charges are relevant, or can get in the

way of a promotion; but rather where to draw the line, in a system where there is an

elaborate mechanism for ascertaining qualifications for promotion, prior to going on an

"eligibility list" for promotion, and well prior to any individual actually taking up the job

for which he has previously demonstrated his qualifications, through a multi-step

screening process.

In other words, (as the Association would put the question): can the

“cloud” on integrity that was said to exist for Officers Reid and Forestall, be made an

automatic disqualifier “at the front end” of the screening process (like the “rule” that

disqualified all disabled employees); or should “the “cloud”” only be a residual factor,

triggered later on, and only if necessary, where the officer would otherwise be promoted.

I use the phrase “only if necessary”, because of course, “the “cloud” will

be irrelevant if an officer isn’t going to make the eligibility list anyway - as Officer Reid

would not have done in the first 2001 promotional round. For if an officer is not

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otherwise able to make his/her way successfully through the various evaluations (local

assessment + exam + interview), then the presence of the “cloud” will be irrelevant. The

“cloud concern” only matters for those who - but for the “cloud” - would be slated for

promotion.

*

Moreover, I think it is also relevant to recall the way in which promotions

at the TPS unfold, and the relationship between the pre-screening process from which

Reid and Forestall were eventually excluded (as was Marchen, earlier on), and the actual

promotion, which is the object of the exercise, but which only takes place, months or

years later.

*

In a normal collective bargaining situation, an individual applies for a

particular job, then establishes his qualifications in competition with others, then is put

into that job, if he is the best candidate for the position. In the current setting, though, the

applicants are pre-screened for vacancies that do not yet exist, and may not exist for

many months (as long as two years). And it is only when they leave the “eligibility list”

for an actual position that they begin to receive the salary and benefits associated with the

higher rank – when the promotion becomes “effective”, as it were.

The issue for officers Reid and Forestall, therefore, is whether they can be

denied access to this pre-screening process (which inevitably means that they will not be

promoted), when there are pending criminal charges against them. Because the

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Association concedes that such employee cannot actually be promoted into a position of

responsibility until the “cloud” is dispelled.

The Association asserts, that a more appropriate (and “reasonable”)

balance of the competing interests at stake, is the one that has prevailed in the past (and

the one that Staff Superintendent Blair apparently thought was still in play, until he was

advised otherwise).

Moreover, as the Association sees it, that is also the approach that is most

consistent with the legal presumption of innocence, and with the reality (as here) that the

charges may never go forward; namely: to put the employee on the promotion list if s/he

has otherwise earned the right to be there, but to defer any actual assignment to the higher

position, until the “cloud” on his/her candidacy is cleared up (be it by the criminal trial,

or otherwise, if the Employer chooses, on its own, to prove that the alleged “blot”

integrity is real).

On that scenario, then, the denial of promotion will turn on whether there

is an actual defect of character/integrity/honesty, rather than merely an allegation, or

suspicion, or possibility, that there is one.

The Association does not deny that the allegations of scandal at Division

52 were serious, and attracted considerable media attention. However, in the

Association's submission, the Employer has over-reacted to that publicity, and has been

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unduly and unreasonably sensitive to possible public criticism - to the total exclusion of

everything else in the candidates’ favor, and regardless of the legal presumptions which

pertain to persons facing criminal charges. And in the Association’s submission, the

Employer has also discounted past practice in similar situations, where fear of public

opprobrium has not prevented an officer from participating altogether. For as the

Association sees it: ‘history’ is relevant in this regard: it informs what is “reasonable” (or,

in the words of Article 3.01: what can constitute “reasonable cause”).

The Association says that the risk of an adverse finding, is insufficient to

shut the door to even the possibility of promotion. Or to return to the language of Article

3.01: that there was no “reasonable cause” to use this factor as an eligibility requirement

for the aggrieved officers - effectively precluding promotion in that round, even if the

charges turn out to be unfounded, and can be addressed in a timely way.

In the Association’s submission, such prophylactic stance may impose

upon the meritorious applicant a practical penalty of thousands of dollars in lost wages

and benefits, because of an allegation which may neither be true, nor be proven to be

true, nor, as here, even be pursued. An officer can be penalized, even if the charges are

groundless or later withdrawn.

The Association further points out that it is all well and good for the

Employer to say (as it does in the agreed statement of facts) that it still believes that the

criminal charges were well founded; but the fact is, the Employer has not sought to prove

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anything, and has returned the subject officers to regular duties. Indeed, even while the

charges were pending, the Chief chose not to maintain the “suspension with pay”, that is

permitted under the Police Services Act.

The density of the “cloud” did not prohibit these officers from working

altogether, and the persistence of the suspicion has neither prevented the Employer from

subsequently returning them to duty, nor prompted the Employer to actually try to prove

what it says it believes to be true. And in the Association’s submission, this situation

should not have prevented these officers for applying for, and being screened for,

promotion – even though the promotion could not occur until the “cloud” had been

cleared up.

***

The Employer replies that I should eschew generalizations and focus on

the specific and serious criminal charges which were a leveled against officers Reid and

Forestall; and that I should also consider the context in which those charges were laid –

which generated a high level of media interest and public scrutiny. This was not some

“one-off” criminal allegation (a charge of impaired driving, say) that pertained to a single

officer, as an isolated incident; but rather was part of a major scandal to which the

Employer was obliged to respond, and be seen to respond, decisively.

There was nothing fanciful about the Employer’s fears of public

opprobrium. The drug squad allegations posed problems for the TPS that were truly

unusual and of unprecedented proportions; and in Counsel’s submission, the question is

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not whether any criminal charge, at any time, engages questions of "integrity", but rather

whether that was the case with these charges, in this scenario, for these individuals.

Employer Counsel concedes that criminal charge may not necessarily

implicate a “Core Value”, and that some “Core Values” may not involve misconduct at

all. But the question here - as for all of the other grievances - is an individualized one;

and in the case of officers Reid and Forestall, Counsel submits that the Employer's

determination was not unreasonable: there was "reasonable cause" to exclude from the

2001 promotion process, these officers, facing these charges, in this situation.

In the Employer's submission, demonstrated and unassailable "integrity"

and "honesty" are not just commendable character traits for individual officers. They are

absolutely essential elements for a police officer in order to perform his/her duties

effectively; and they are also intimately related to the operational needs and reputation of

the police organization as whole - just as they are for the judiciary, as the Supreme Court

of Canada found in Therien v. Minister of Justice et. al. (2004) 155 C.C.C. (3d) 1

(S.C.C.).

Obviously, a police officer is not a judge. But, as with judges, the public

demands virtually irreproachable conduct from anyone performing police functions; so

that officers have to be, and give the appearance of being, unimpeachable examples of

honesty and integrity. These personal qualities are essential to the conduct of police work

and to the effectiveness of the police force - which requires a high degree of public

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confidence in both the organization, and the individuals who are part of it. For example:

how can an officer under criminal charge (not just investigation), be put forward as a

credible witness, in a jury trial? How can members of the public be expected to come

forward and deal with person’s whose police career, is under that kind of “cloud” ?

It is not just a matter of “image” or publicity. There are sound operational

reasons for these requirements. Indeed, they go to the core of what the TPS is all about.

Counsel further points out that public perception and public cooperation

are essential to effective police work - especially in a model of community policing; and

that anything that impairs the public’s view of police integrity, inhibits the TPS’s ability

to do its job. There are organizational as well as an individual interests at stake here; and,

in Counsel’s submission “perception is reality”: the Employer is obliged to respond to

public perception, even if management believes it to be unfair or an over-reaction.

In the Employer’s submission, that public perception need not, in itself, be

either “reasonable” or “fair”. It is enough if the public's confidence might be shaken by

the knowledge that an individual, subject to serious criminal charges, was nevertheless

being considered for promotion; and that such perception might impede public

cooperation, or confidence, or reflect on the reputation of the TPS.

In Counsel’s submission, the Employer, in these unusual circumstances, is

obliged to engage in "risk management", where there are reasonable grounds to believe

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that criminal acts have occurred (the charges were laid, after all), and where there is a

reasonable risk that the public will react negatively. And if that is so – which Counsel

says is the case here - it is organizationally prudent to disengage the subject officer from

the promotion process, until his status is clarified.

It is not a matter of the certainty of a negative public response, but rather

whether the Employer has a reasonable cause to believe that such will be the

consequences; and in Counsel’s submission, that is an entirely reasonable inference,

given the high degree of publicity and public scrutiny which attached to the problems of

Division 52 (as is evident from the incendiary news clippings that were filed with me).

Counsel submits that in those unusual and regrettable circumstances, the

Employer is entitled to engage in kind of “risk management” that was done here.

Nor is it without significance that it was other police officers who would

have had to have “reasonable and probable grounds” before implicating those persons

eventually charged – including officers Reid and Forestall (a point made by Bill Blair, in

the course of his testimony). This is not just a “suspicion”, or an “investigation”. Charges

were laid and charges were pending. So from this perspective, Chief Fantino was merely

endorsing the judgment of those police officers, who had laid the charges. He was saying,

in effect; “if those officers had reasonable grounds for laying criminal charges, then that

is good enough for me”.

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Moreover, given that intense public scrutiny, Counsel submits that it is

likely that the public would come to know about the circumstances of all of the officers

against whom charges were laid; and that the public cannot be expected to make fine

distinctions between "being up for promotion" and "being promoted" - the line that the

Association wishes to draw. Indeed, the debate itself is debilitating; and in those

circumstances, there was reasonable cause for the Chief to simply disengage these

officers from the process altogether, until their situation was properly clarified.

In Counsel’s submission it was reasonable and legitimate for the Chief to

be "proactive" in this regard. Or to return, once again, to the words of Article 3.01: there

was “reasonable cause” to deny these individuals, this promotional opportunity, at this

time, and in these unusual circumstances.

In the Employer’s submission, the fact that the line might have been

drawn differently by others, or in other circumstances, or in the past, is simply irrelevant;

and does not detract from the “reasonableness” of what was done in this situation. For as

in so many other areas: policing today, is not the same as it was some years ago, and this

scandal was a serious challenge to the service. For even as far back as the “Morand

Report”, (issued many years ago), it was recognized that the essential element for success

is unimpeachable “integrity” – from top to bottom, and constantly reinforced – as well as

public confidence in police integrity.

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I agree with the Employer that public perception and public confidence are

important factors at both the individual officer level and for the organization as a whole;

and I also think that the good faith decisions of experienced police management are

entitled to a degree of deference. Because after all, it is those officers who experience the

problem of maintaining public confidence, or who bear the brunt of public complaint; and

the fact is: "standing aside" until the “cloud” is “cleared" is not an uncommon response in

a variety of organizational settings. That was the response of the Treasurer of Ontario

when he was the subject of a police investigation; and, it is interesting to note: that was

response of certain Directors of the Toronto Police Association itself, when their names

figured into the problems associated with Division 52. They too recognized that their

effectiveness or stature would be impaired; and they stood down.

However, where, as here, the situation raises an important societal value

(indeed, one that is mentioned in the Charter), where it is this single factor that

effectively disqualified these two grievors, and where the Association concedes that it is

legitimate to hold back the actual promotion; then I think that it is important to carefully

“deconstruct” the elements of explanation advanced by the Employer, in order to make

sure that where it has drawn the line, really does meet the test of "reasonable cause".

Because, in my view, it is not enough that a Senior Officer has acted in

good faith, and in the belief that he had "reasonable cause" to do what he did - any more

than an honest belief will necessarily be sufficient to justify a warrant-less search. Article

3.01 requires that the decision maker actually have, and be able to objectively

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demonstrate, "reasonable cause" for the denial of a promotion – which, for present

purposes, means reasonable cause for exclusion from the pre-promotion screening

process, which results in a de facto denial of promotion, regardless of the applicant’s

personal merits - and, in fact, regardless of the eventual outcome of the allegations

against him.

For as the Association points out: an officer excluded on this basis may

miss out on a promotional opportunity, even if the “cloud” can be cleared up prior to the

time that the “real promotion” might otherwise happen (i.e. as much as two years later);

because if an officer is automatically eliminated from the participation in the screening

process, then it ultimately may not matter, for this promotional round, whether there is

anything to the allegation or not.

The totally innocent officer, may still be “penalized” in this sense – by

which I mean, s/he may have to bear the risks associated with awaiting vindication, even

if s/he is ultimately fully vindicated, and even if the allegations turn out to be totally

unfounded.

Recall, too, that the positions that we are talking about here are relatively

low level supervisory jobs within the bargaining unit. We are not dealing with positions

of senior managerial responsibility; and as things eventually unfolded for Reid and

Forestall, they were not ultimately suspended from duty while the charges were pending.

The cloud was not dense enough to prevent them from continuing to work as police

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officers. Moreover, while the Employer maintains its “belief” in the truth of the

allegations against them, the fact is, it has not sought to prove them; and the grievors are

now returned to full duties.

On the (former) Chief’s reading of his responsibilities, and the Employer’s

proposed test of “reasonable cause”, an officer will have lost the chance of promotion

(with associated adjustments in pay and benefits), for years, even if s/he is entirely

innocent; so it is not difficult to describe this as a kind of “penalty” - as Arbitrator

Simmons apparently did, in the case referred to below. And where legally innocent

individuals are disadvantaged in this way, it seems to me that it is legitimate to look very

carefully at the Employer’s rationale, in order to see whether it really is justifiable under

Article 3.01.

Accordingly, it seems to me that in order to meet the “reasonable cause”

test imposed by Article 3.01, and to deny a promotional on this ground, (i.e. to “exercise”

its promotional “function”, in the way that was done here) it must be shown that the mere

allegation of criminality, without more - but in the circumstances - provides “reasonable

cause” for denying an applicant even the possibility of promotional consideration.

*

I should also note that the Police Services Act does speak to this issue, at

least tangentially, because it provides that an officer facing a criminal charge may be

suspended with pay; and that if s/he is suspended, for that reason, then s/he might not be

eligible for promotion under the 2001 Rules (an issue that is not before me). To this

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extent, then, the Police Services Act itself recognizes that an officer's ability to carry on

his/her duties may be impaired by the charge: it recognizes that there are real life

organizational impacts from such charge, regardless of the legal presumption of

innocence; and it empowers the Chief to take action to deal with this organizational

concern.

In other words, the governing statute contemplates that the mere risk or

possibility of guilt, engages legitimate business interests, and may justify a consequential

business response.

However, it is equally clear that this is an administrative suspension,

rather than a disciplinary one, unless the Employer itself chooses to embrace the

allegations contained in the charges, and stands ready to prove them. Otherwise, a

suspension under section 67 of the Police Services Act, has to be seen as merely a

sensible way of temporarily removing an officer who is under suspicion, without

imposing a financial penalty on that officer, and in a manner that is respectful of due

process and the presumption of innocence.

Section 68(9) of the Police Services Act, also reflects a legislative concern

that mere complaints should not impinge upon an employee’s job prospects, unless they

are proved. Which is not to say that section 68(9) applies to the promotion process. But it

does serve to illustrate that the interests and the balancing that I am urged to do here

under Article 3.01, are arguably reflected in the statute itself: that the statute endorses the

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common sense notion that employees should not be penalized as a result of unproven

allegations.

Thus, while the statute recognizes that a criminal charge is not a neutral

event, it also appears to embody a balancing of competing concerns; and I do not think

that the presence of the discretionary power in section 67 really answers the question of

whether there was "reasonable cause" for a different and undoubtedly negative

consequence: preventing the accused officers from even seeking promotion.

Moreover, in my view, that is especially troublesome when the current

state of the law seems to be that the failure to promote an otherwise meritorious

candidate, because charges are pending against him, may be fairly construed as a

"penalty" for which the officer can later seek monetary compensation. See: Toronto

Police Services Board v Toronto Police Association et al. (2005), 198 OAC 100 (Ontario

Divisional Court), where the Divisional Court declined to interfere with an arbitrator’s

decision to give compensation to an officer whose promotion had been “held down”,

pending disposition of the criminal charges against him.

It is also interesting to note the following passage from the above-

mentioned Divisional Court decision - which appears to express the unanimous opinion

of the three Superior Court Judges who heard that case [emphasis added]:

The Arbitrator, in my view, interpreted the Collective Agreement. This is what he was asked to do vis-à-vis the grievance. It cannot be said that the impugned Award fails to pass the test set out by the Supreme Court of Canada in Ryan (supra). In my view, the issues involved, the reasoning of

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the Award, it's remedy and the reasonableness factor are all succinctly summarized in paragraph [48] of the factum of the Respondent/Grievor {The Toronto Police Association}, with which I agree:

The bottom line resulting from the arbitrator's decision, is that while the Board may defer a promotion pending the resolution of PSA charges, the officer will be entitled to a remedy should he be exonerated at the end of the process. This balancing of interests permits the Employer to exercise its management function to ensure that an officer who may be found guilty of misconduct is not promoted, but likewise ensures that an officer who has committed no wrong and is otherwise entitled to be promoted does not suffer a loss. This is a reasonable conclusion based upon the management rights clause in the collective agreement requiring the Employer to act reasonably with respect to its promotion functions.

* The issue before the Court, is not the same as the issue before me.

Nevertheless, the reasoning of the Court appears to approve a “balancing exercise”, not

unlike the one that I am being asked to engage in, in the instant case, under Article 3.01.

*

The Employer's justification (its “reasonable cause”) for the Reid and

Forestall exclusion, rests upon a series of factual propositions which I think warrant fairly

careful scrutiny.

The Employer proceeds from the assertion that “integrity” is integral to a

police officer’s work, that any “cloud” on an employee’s integrity impinges on the TPS’s

reputation, and that community support is important for investigative success; to the far

more problematic propositions that: members of the community, possibly involved in

police investigations, will likely come to learn about a candidate's participation in the

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pre-promotion screening process, and that they will respond negatively to such perception

and may withhold cooperation from police.

The assumption also seems to be that as a result of pending charges, this

hypothetical member of the public will form a negative impression about the police

service that the TPS must seek to address; and further that this hypothetical member of

the public will not be able to distinguish between being screened for promotion and

actually being promoted. Or that s/he will respond equally negatively in both scenarios, if

an officer is allowed to, or might be seen to, even apply for promotion.

In other words, the hypothetical “public”, central to this concern, is one

which cannot distinguish between the possibility of promotion and the promotion itself;

and which will not be satisfied with the reassurance that no one will actually be promoted

until any outstanding criminal charges are cleared up.

I am asked to accept, without evidence, that operationally significant

criticism of the police service from such “public”, will result from allowing that officer to

even be considered for promotion (although not necessarily promoted).

Nor, according to the Employer, need such hypothetical citizen’s fears or

biases be fair, or even rational -- which is to say, that s/he need not be the “reasonable

man” evoked by tort law; nor need this “public’s” belief be what a reasonable and right

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minded person, applying himself to the question and obtaining thereon the required

information would believe.

For such member of the public (whose views the TPS believes it must

appease), it is not a matter of what an informed person viewing the matter realistically

and practically, and having thought the matter through, would conclude. According to the

TPS, it is sufficient if there is a risk of these negative perceptions (that the public would

think badly of, and not cooperate with, police); and if there is, then an otherwise

meritorious police officer, with an impeccable service record, may be prohibited from

even seeking promotion, until the charges against him/her are disposed of.

*

The Association concedes that where it proposes to draw the line may not

be a perfect balance, because, it may turn out that an individual will still be precluded

from actually being promoted. For example, if the “cloud” is not removed within, say, the

two years that the candidate might stay on the promotion eligibility list, then s/he may still

miss out. Accordingly, even on the Association’s test of what is “reasonable”, the

officer’s candidacy may be defeated by the delays and vagaries of the justice system,

over which neither the Association nor the Employer have any control. But on the

Association’s view, there is at least more likelihood that a truly innocent individual will

not be penalized; and it seems to me that this is a value that is worth weighing, when

considering whether there was “reasonable cause” for the Employer’s decision.

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I am also asked to accept the Employer’s submission (again without

evidence - but interestingly, purportedly speaking on behalf of the Association’s own

members) that it would be disheartening and irritating for other police officers seeking

promotion, if a spot on the eligibility list were taken up by someone facing charges, like

Officers Reid and Forestall.

Employer Counsel asks: how will those officers, just marginally below the

mark, feel about missing out, while the Employer holds a place open for someone who is

facing criminal charges, and who may ultimately turn out not to be eligible for promotion

at all? These other officer-candidates may be prejudiced; and for them, there is no

“cloud” at all. For as the Employer sees it: these officers are not likely to be sanguine

about someone, in these circumstances, taking up a spot on the list, “with an asterisk”

indicating that s/he might not be promoted after all.

Accordingly, in Employer Counsel’s submission, there is a matter of

internal morale to be considered as well: especially when the charges in question are

serious, and emanate from the decisions made by police officers themselves - whose

judgment the Chief is simply relying upon and endorsing.

***

I accept that these are all legitimate concerns, and that they explain why

Reid and Forestall were excluded from the promotional screening process. However, it

seems to me that most of these assertions are simply too indefinite and too speculative to

override both the presumption of innocence and the importance of promotion at the TPS.

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I do not suggest that legal presumptions, drawn from the criminal arena,

apply axiomatically in the civil setting of this case; and as I have already noted, the

Police Services Act, recognizes that the mere possibility of guilt (as evidenced by the

laying of a charge) may have an impact on the officer’s work.

However, it seems to me that in assessing “reasonable cause” in this civil

setting, under this collective agreement, (i.e. applying Article 3.01 to the situation under

review) it is still necessary to weigh the institutional concerns of the organization, in light

of an important Charter right (to read the exercise of the Chief’s discretion, in light of

“Charter values” as it were), and to consider whether the legitimate concerns of the

Employer cannot be met in some way that does not unnecessarily penalize an individual

employee who might be totally innocent – a balancing exercise, just like the

administrative suspension under section 67 of the Police Services Act, or the notion,

underlying section 68(9) that mere allegations (in the circumstances there discussed),

should not impinge upon an officer’s employment prospects.

I am not persuaded that I should give much weight to the possibility that

the eligibility list or other internal personnel information "might leak out", to an irrational

public who may not be able to distinguish between screening for promotion and the

promotion itself, or who might jump to conclusions from the mere fact that charges were

laid, or who will irrationally generalize from a few possible “bad apples” to the Service

as a whole.

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I do not know what care is taken to preserve the confidentiality of the

personnel documents pertaining to individual officers, nor whether ordinary concerns

about confidentiality are actually bolstered by legal protections under privacy legislation.

And I do not doubt the ubiquity of “police sources” who may be ready to talk to tabloid

journalists. But it is not so obvious to me (and I am not prepared to conclude on the

evidence before me) either that such leaks will occur, or that they will likely have the

impact posed by the Employer: that there is a reasonable likelihood of the feared

consequence from merely permitting participation in the promotional screening process.

Nor am I attracted to a submission that depends upon the Employer’s

inability to maintain the confidentiality of its own internal personnel processes, lest

leaked information be misunderstood by an irrational public.

In my view, these possibilities are simply too remote and too speculative

to form the basis for the "reasonable cause" required by Article 3.01 - however much a

senior officer may believe it is necessary for a candidate to "be" and "be seen to be",

"squeaky clean" (a colloquial expression that appeared in the testimony from time to

time).

It is, no doubt, a useful metaphor. But that is not the same thing as making

it an operational rule.

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It seems to me that there must be a “reasonable basis” for the

apprehension; and in any event, I do not think that an otherwise meritorious officer’s

promotional prospects can be properly or reasonably negated in this way, because of

speculation about these possible impacts on police image or its ability to carry on

investigations – especially when the internal personnel processes can be kept quite

confidential, thereby minimizing the likelihood of any of this, and where a reasonable

member of the public should be able to distinguish between the screening for promotion,

and the promotion itself.

And insofar as the opinion of other police officers is concerned, I am not

prepared to assume, without evidence, that they will discount the presumption of

innocence, or that their morale will be impaired, if an otherwise qualified fellow officer is

put on the eligibility list. {Note that if the officer does not clear all of the other hurdles

for promotion – as Forestall did, but Reid didn’t – the issue becomes moot}.

*

In my view, the evidence put before me does not establish that the

Employer had "reasonable cause" to exclude officers Reid and Forestall from

participating in the promotion process - a determination which effectively denied them

even the possibility of promotion in 2001 -2003.

I agree with the Association that the reasonable balance is to hold off

promotion until the charges are resolved - not to prohibit officers with pending charges

from participating in the screening process altogether. The reasonable balance is as it

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has historically been. Or put differently: that this kind of eligibility requirement, or

“instant disqualifier”, “at the front end”, did not provide, in the case of these officers,

“reasonable cause” for refusing to allow them to even seek promotion.

In my opinion, the promotion process regulated by Article 3.01, did not

permit the Employer to exercise its prerogative respecting promotion, in the manner that

it did here with respect to officers Reid and Forestall; and their grievances in this regard

therefore succeed. I will look at their remedy below.

THE GROUP 2 GRIEVORS: OFFICERS WHO CHALLENGE THE WAY IN WHICH THEY WERE EVALUATED BY THEIR UNIT COMMANDER

XI - Some “Systemic” Issues

On this branch of the decision, I will look at a number of "process issues"

that were flagged by the Association, and were said to be “fundamental flaws” in the

local unit assessment process – that is, the way in which the Unit Commander went about

determining whether candidates were competent, superior, or exceptional. These issues

arose from the evidence pertaining to one or other of the individual grievances; but they

were also alleged to be "systemic faults", that undermined the reliability of the process as

a whole. And as such, (according to the Association), these faults invalidated the

assessment for any employees for whom the challenged approach was applied. They

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amount to a per se breach of Article 3.01, automatically vitiating the Unit Commander’s

assessment, where ever such flaw appears.

Article 3.01 is recorded above. I will not reproduce it again. The question,

in each instance, (i.e. in respect of each alleged “systemic fault”) is whether the matter

complained of, amounts to a breach of Article 3.01 in respect of the person who has

grieved about it (leaving aside, for now, what the remedy might be, if the alleged breach

of Article 3.01 pertains to the assessment of a number of employees, and only some of

them have grieved).

Complaints about the grading system

The Association complains about the rigidity of the three assessment

categories (competent, superior, exceptional) and the assignment of fixed point scores (5­

10-15) to each one. The Association submits that the Unit Commander should have been

able to apply a full numerical scale, from 0 to 15 points, in order to take into account the

possibility that some candidates would not fit clearly into one broad category or another,

but rather might fall somewhere in between. The Association emphasizes the importance

of even minor mark increments in a close competition; and submits that the grading

system should have permitted such incremental numerical assessments: a “7” or a “12”,

and not just 5, or 10, or 15.

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Counsel points out that most of the Unit Commanders testified that they

would have preferred more flexibility in scoring the candidates, and that this complaint

surfaced in the 2001 postmortem as well. Counsel further notes that such flexibility was

present in other promotional processes in other years, so that, in this respect, 2001 was

something of an anomaly.

The Association submits, therefore, that the "reasonableness" of the

approach adopted in 2001, can be assessed by comparing the 2001 system with what

went before and after, and also in light of what the Unit Commanders and others had to

say about it in the post-mortem and before this arbitration board; and that on that basis,

the 2001 system fails the test of “reasonableness”. It wrongly tries to fit continuously

variable performance into rigid boxes, with fixed scores.

*

In the Association’s submission, there should have been a full arithmetic

continuum, to which employees could be matched in accordance with their performance

and potential. Their assessments should not have been artificially forced into preset

categories, which denied the possibility of incremental marks.

*

A related issue is the allegedly inconsistent way in which (it was said) the

Unit Commanders may have dealt with individuals who, in their opinion, did not fit

squarely into one category rather than another.

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The Association submits that where the employee seemed to fall in

between the “superior” and “exceptional” categories (better than those clustered at the

former level, but not quite as good as those clustered at the higher plateau), some Unit

Commanders were inclined to give the “in between” employee the “benefit of the doubt”,

and boost the candidate into the higher bracket. Thus, if the candidate seemed to fall “in

between”, such that s/he was considered, say, “a 12”, (not a permissible arithmetic

option, but the way that the Unit Commander might have looked at the situation), then

such individual “12” might still end up with “a 15”, if the Unit Commander was inclined

to give his scoring this upward bias (“the benefit of the doubt”). These Unit Commanders

were what I have called “easy markers”.

Conversely, other Unit Commanders, (perhaps more faithful to the

category definitions and the concerns about mark inflation), were not inclined to give the

highest rating/recommendation unless the individual really was "a clear 15" - or “clearly

exceptional”. These managers did not give the “12’s” the “benefit of the doubt”, or boost

them up into the next category. They were “hard markers”.

The Association complains that there were no specific rules to tell the Unit

Commander what s/he should do with candidates who did not fit clearly into one category

rather than another (i.e. whether to give them the “benefit of the doubt”); with the result

that an employee who was viewed as a “12” in one unit, by one local Unit Commander,

might be treated differently from an employee viewed as a “12” by another Unit

Commander from a different unit. The end result could be a “10” or a “15” (a 2 ½ mark

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difference when the weighting are applied), depending upon how strict the Unit

Commander was in demanding conformity or “closeness” with the cluster of clearly

exceptional officers; and in consequence, the Unit Commanders could – and did - treat

the “in betweens” differently.

The Association submits that it “mattered” what unit the candidate was in;

and that even if the marks in each unit were internally consistent, they would not be

consistent as between Unit Commanders, who might treat the “notional 12’s” differently,

depending upon how they dealt with the “in betweens”.

In summary then, the Association challenges the absence of interim scores

for those candidates who might not fall squarely within one category or another; and the

Association also complains about the absence of any written guidelines, to make sure that

all of the Unit Commanders were dealing with such “in between” situations in the same

way. And the Association asserts that, in both cases, the fault stems from an

“unreasonable” grading system, that does not assess the candidates’ on a full numerical

spectrum – with the result (according to the Association) that there is an exercise of the

promotion function that is not “reasonable” or justifiable under Article 3.01 of the

collective agreement.

***

I agree with the Association that the system of closed categories posed a

challenge for the Unit Commanders, and that, in some instances, those managers may

have struggled with how to rate particular candidates. The Unit Commanders were forced

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to make one of three definitive choices: is s/he competent, superior, or exceptional; and

in some instances, that may have been difficult. Under the 2001 system, the Unit

Commander had to decide, in each case, where to put the officer, having regard to the

definitions, and what, in his/her opinion, was the best “fit”; and there were only three

options to choose from. There were no compromise “in between” scores.

However, in my view, that does not make the 2001 scheme

"unreasonable", or a per se breach of Article 3.01; nor do I attach as much significance as

the Association does, to the way in which the witnesses described the thinking that went

into their choices - which, it will be recalled, were not described in arithmetic terms at all,

but rather in terms of performance and potential in relation to others in the rank (see the

definitions reproduced above). For the fact is: under the system then in place, there was

no “12” or “in between” score at all; and, it seems to me that to think in terms of such

possible (but not permitted) numerical scores, instead of the category definition, “puts the

cart before the horse” as it were - looking at the numerical result of a hypothetical choice,

rather than the category definition, which defines the options to begin with. It also gives

an entirely unrealistic aura of scientific rigor to a process which was not, and could not

be, as precise or as nuanced as these numbers might suggest -especially as between

widely divergent units and decision makers.

Indeed, that is what underlies the notion of “closed categories” in the first

place: they recognize the rough and ready nature of the exercise; and they were designed

to divide the candidates into three broad groups, in order to discourage the drift of marks

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towards the top, and produce a more useful mark distribution. The categories are

intentionally limiting, and they eschew fine gradations - which, in any event, are just as

“subjective” at the margins, as the “broad brush” ratings, upon which the system is

based..

What the Unit Commander was being asked to do, is put each candidate

into a general class or grouping (essentially: “satisfactory”, “good”, “excellent” – or

perhaps “A”, “B”, “C”) rather than at a particular point on some hypothetical sliding

arithmetic scale; and in view of the explanation tendered by Officer Grant, I am unable to

conclude that this three category system was "unreasonable" - even though the employer

might have adopted a different approach (as it did in other years) and a number of Unit

Commanders would have preferred that approach.

Nor in my view was it unreasonable to assign fixed marks to the class, so

that candidates can be meaningfully distinguished from one another – especially in

respect of those (supposedly) few “exceptional” candidates, whose performance and

potential were “well beyond others” in their rank. It was just one method of doing things

- like assigning fixed marks to years of service, and not providing for part marks for

partial years of service or experience; and whether or not it was the best method, I am not

persuaded that it was an “unreasonable approach”, or contrary to Article 3.01.

The category system is rationally connected to the objective which this

part of the promotion process was designed to achieve: to give local management a

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modest but structured input into the promotional calculus. Having decided to put a local

managerial opinion back into the promotion equation (despite the earlier complaints

about an “old boys network”), and to shift the burden more squarely to Unit Management

(and away from peer evaluation or a “committee” of bargaining unit members as was

done in 1999), the Employer then had to decide how to receive such managerial

recommendation; and what it decided to do, was to channel the manager’s assessment

and recommendation into three levels of support (rather like a letter of reference).

Moreover, this particular format was intended to address a specific problem that had been

encountered before, when a full numerical spectrum was used: the drift of candidates’

scores towards the top end of the scale.

The categories were chosen to force the Unit Commander to make the

distinctions noted in the definitions, and to separate the candidates in a way that would

make their input more meaningful. And whether the new system did that effectively – or

not - does not, in my opinion, and in itself, determine whether the approach was

“reasonable”. (The first 2001 cycle seems to have worked better, from this perspective,

than the second cycle in 2001).

In my opinion this was a “reasonable” way of categorizing candidates for

promotion purposes; it was a “reasonable” way to structure the “input” of local managers,

and it was a “reasonable” device to induce the Unit Commanders to group the candidates

in useful ways; and while there may have been other ways of doing that (a “quota” on the

permitted number of “A’s, B’s and C’s” would have had the same effect of forcing the

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Unit Commanders to make clear distinctions), I am unable to conclude that a “system”

framed in this way, was ipso facto, a breach of, or prohibited by, Article 3.01 of the

collective agreement.

* As I have already indicated in Part V of this Award, it is

my opinion that Article 3.01 gives the employer broad latitude to fashion a system in line

with its own organizational needs and objectives (which, here, was to channel and shape

the input from its own managers in a way that would be useful, and might avoid the

problems encountered in the past); and I am not persuaded that the collective agreement

prohibits that device, or that someone assessed under such system was, ipso facto, dealt

with “without reasonable cause” within the meaning of, and in breach of, Article 3.01.

It may be that the assessment was faulty in a particular case, which can be

reviewed under Article 3.01. It is open to an employee to complain (as the grievors all

do) that s/he should have been rated “exceptional”, and was not. But I do not think that

the classes or the fixed point assignment are, in themselves, a breach of the collective

agreement; and I am not persuaded that the absence of a sliding scale of marks, for this

portion of the assessment process, contravenes Article 3.01 of the collective agreement.

*

Nor am I troubled by the Unit Commanders’ commendable frankness

when describing how they went about deciding whether someone was “exceptional” vs.

“superior”, or how they may have dealt with situations in which, as they saw it, both

ratings were arguable (or at least, defensible). For, it was clear to me that, on this branch

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of the case, all of the Unit Commanders were diligently trying to do their best, to pick,

the “best of the best”, from a field of well qualified candidates. There is no question of

favoritism or bad faith here; and it seems to me that what the Unit Commanders were

doing was what they were required to do, by the system in which they were operating.

* It was evident from the testimony of the Employer’s

witnesses that some of their rating decisions were relatively easy to make (“no brainers”

as one of them put it). There were some officers who clearly stood out, and thus clearly

warranted the label “exceptional”; while there were other officers who – while still pretty

good – were not “in the same league”. There were clusters of officers in each category,

having regard to the category definitions; and those clusters were the practical point of

comparison for others, as the process unfolded.

But what of the candidates for whom the indications were equivocal – for

example: where the candidates’ own bargaining unit supervisors expressed different

views about his/her ranking and the Unit Commander had mixed feelings as well; or there

were different but plausible predictions about the employee’s “potential”, having regard

to the multitude of different factors that the Unit Commander was asked to take into

account?

What if it was difficult to decide whether the candidate was “superior”

(defined as: usually performing at a higher level than expected of others in that rank and

having a high potential for success at the next rank); or alternatively, “exceptional”

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(defined as: consistently performing at a higher level than expected, with outstanding

potential for performance at the next rank) – definitional language that calls for an

exercise of informed judgment? And especially: what was the Unit Commander to make

of the additional caveat, attaching to the exceptional rating that: “This rating should only

be given to candidates performing well beyond others in their rank” – not just “beyond

others”, but, “well beyond others”.

The Unit Commanders who gave evidence were closely cross-examined

about their thinking in this regard, including questions about how they would deal with

candidates who appeared to be “in between” or a “12” (not, strictly speaking, an option);

and they candidly admitted that they sometimes struggled to pick a category that was fair

to the candidate, yet was also consistent with the objectives of the system which they

were asked to apply – including the expectation (or at least the hope) that their input

would be more meaningful than it had been in 1999. And I think it is fair to say that when

the witnesses were asked to generalize in this way, or to answer hypothetical questions

(“what would you do with a 12?”), they gave somewhat different responses, depending

upon how they looked at the definitions, and the weight that they ascribed to the specific

direction in the Rules to reserve the exceptional rating for the “best of the best” (as some

witnesses put it).

Some Unit Commanders frankly said that if the officer seemed to be better

than the cluster of “superior” officers (a “12” if numbers were used as descriptors instead

of words), yet not so good as the cluster of the truly “exceptional” (the “clear

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15’s”), then that candidate would indeed get the “benefit of the doubt”, and would be

lumped in with the “exceptionals”. Other managers were more faithful to the purpose of

the ranking, and to the caveat, and to the concern to make their input meaningful; so that

if on applying the definitions, the candidate was not clearly within the cluster of

“exceptionals” – “not quite there”; not “a real 15”; not “well beyond others”, then that

Unit Commander would not treat the candidate that way.

The former group of managers (“easy markers”) struggled with how to

weigh the facts of an officer’s application, and their desire not to stand in the way of

individuals from their own unit, who were still pretty good candidates, overall (recall the

consensus that “superior” and “exceptional” candidates could both make good

Sergeants); while the latter group of managers (“hard markers”) emphasized that it was

also important to be “fair” to the clearly exceptional officers, and not to dilute the value

to them of their evident success, by expanding the class of “exceptionals” to include

those who were not clearly there. And of course, underlying the placement of the officer

in the first place (i.e. whether s/he is “clearly” in the cluster of the class –“superior” or

“exceptional” - or notionally somewhere “in between”), is the Unit Commander’s

individual judgment about the candidate’s relative performance and future potential, as

determined by applying the definitions recorded above – hardly an exact science, given

the way in which those definitions are framed (and inevitably subjective, at the margins).

And at least some of the Unit Commanders were influenced by the nature of the unit they

commanded – which, they thought, also told them something about the candidates who

were in that unit.

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Is it a “systemic flaw”, and a breach of the collective agreement, because

there are no written rules to tell the manager how to deal with the hypothetical “in

betweens” - given that the categories do not actually envisage any “in betweens” at all

(and in fact were intended to foreclose them)? And is the system in breach of the

collective agreement, because some managers may be “easy markers”, while others are

not; so that an officer could conceivably get a somewhat different score (with a 2 ½ mark

advantage) , depending upon what unit s/he was in, (especially elite units) and who was

doing the grading?

I do not think so.

It seems to me that in any system in which there are many decision

makers, whose opinion is to be influenced by a variety of un-weighted factors, there will

necessarily be a degree of subjectivity that cannot be completely eliminated; and that this

is especially so, when that judgment includes an assessment (prediction) of someone’s

potential to succeed in the future. When it is the manager’s opinion or informed judgment

that is being sought, some degree of subjectivity and variability are inevitable; and this is

not, in my view, inherently “unreasonable”, or contrary to the collective agreement. Nor,

in my view, is it something which an arbitrator can or should examine microscopically –

any more than the Courts in Ryan and Minott were inclined to undertake a microscopic

examination of the decisions before them.

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The opinion of the Unit Commander comprises a relatively minor part of

the assessment process, and it is restricted and channeled in a number of ways. There are

three (and only three) categories identified, there are definitions that distinguish those

categories one from another, and there is a specific caveat that warns the Unit

Commander to be sparing about assigning candidates to the “exceptional” group.

Someone is only supposed to be “exceptional” if s/he is well beyond others in his/her

rank (including those officers who are themselves “superior”).

But it is left to the individual decision maker to assign the label that fits,

even if that is difficult in particular cases; and I do not think that it contravenes the

collective agreement if one Unit Commander tends to be a little more forgiving than

another, or reads the caveat in a slightly less restrictive way (perhaps because the officer

had to compete, even to get into that specialized or “elite” unit). For in each case, what

the decision maker must do, is decide, on balance, which of the defined categories best

matches the individual candidate, having regard to the definitions.

Could the Employer have done more to foreclose the “problem” that the

Association now identifies? Perhaps it could have. It could, for example, have imposed

arithmetic quotas, which would have forced a rationalization of the scores within and

between units (e.g. no more than 20 % exceptional). It could also have been even clearer

than the caveat already is, that there should be no “benefit of the doubt”, and that the

“exceptionals” had to be REALLY “exceptional”. And it could have drummed even more

loudly that since there was a wealth of talented officers in the competition, all of the Unit

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Commanders were expected to be “hard markers”, in order to identify only the very “best

of the best” – as the witnesses put it; so as to avoid what happened in 1999.

However, I am unable to conclude that the variation complained of by the

Association, constitutes a fundamental systemic flaw, and a breach of the collective

agreement; such that officers assessed by “hard markers” (as defined above – meaning a

little more faithful to the limiting thrust of the caveat) have a cause for complaint under

Article 3.01. Or that the absence of written rules as to how to deal with the “in betweens”

contravenes Article 3.01. And as I have mentioned in Part VI of this decision: it is

difficult to determine whether a particular grievor has been individually and actually

disadvantaged, because there was no “exceptional” person from his/her unit, or

elsewhere, with which such grievor could be compared. It is also clear that some of the

grievors already got the “benefit of the doubt, to get to where they were: “a 10”.

Complaints about who was involved in the assessment process

On this branch of the decision, I will look at the Association’s complaints

about who participated in the decision making process and how - namely, that there were

managerial persons who should not have been involved in the assessment process in the

way that they were; and that there were bargaining unit supervisors whose input was

excluded or not considered in a sufficiently comprehensive and systematic way.

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The involvement of other managers

The Association complains that the Unit Commander is not entitled to

involve other local managerial personnel (in particular, the Unit’s second in command) in

the information gathering or assessment of candidates - which, under the Promotional

Rules, is the Unit Commander’s responsibility. Nor (according to the Association) is the

Staff Superintendent (a higher level manager) entitled to review what the Unit

Commander has done, and initiate changes to the scores that the Unit Commander has

given. In both cases, the Association submits that the Unit Commander was abrogating

his personal and exclusive responsibility to carry out the tasks assigned to him. He was

involving other managers in ways that (according to the Association) were inconsistent

the Rules and the collective agreement.

However, once again, there is nothing in Article 3.01 that mentions - let

alone prescribes - which managers may be involved in the "exercise" of the Employer's

ostensibly “exclusive” promotional function; and I am unable to see how such

involvement necessarily, or ipso facto, means that the function to promote has been

"exercised", "without reasonable cause". It may be that these other managers will do

something that taints the process, so that their actions or the outcome will not survive

scrutiny on a "reasonable cause basis". However, in my view, their involvement is not in

and of itself, or automatically, “unreasonable”, or a per se breach of Article 3.01.

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Certainly there is nothing in Article 3.01 which stipulates that result; and I

am not inclined to “read in” such restriction, or to “create” such obligation, as an aspect

of “reasonable cause”.

*

Similarly, even assuming that a breach of the prescribed procedure might

be linked in some way to some breach of the collective agreement, (which are different

things), I do not think that the Promotional Rules should be read in the restrictive way

proposed by the Association - particularly in view of the Employer's purpose in

proclaiming those Rules, and the evident emphasis on flexibility.

*

In my view, the Rules do not prohibit the Unit Commander and the Staff

Superintendent, from reviewing the results, together, and making changes if they think it

is necessary; nor do they prohibit the Unit Commander from delegating some of the tasks

associated with promotions to a trusted second in command. If anything, the Rules

accommodate such involvement.

*

The Routine Order clearly contemplates that "the unit Commander may

consult with the applicable Staff Superintendent or Director as required". The Unit

Commander is also required to "forward the completed documents to the appropriate

Staff Superintendent/Director for review by the date specified on Routine Borders”. And

the Staff Superintendent is required to review the documents and may "concur with the

recommendations of the Unit Commander” or “return the documents to the Unit

Commander for review”. [Note the term: “recommendations”].

237

What the Employer had in mind (and recall that this is the Employer’s

own document), is a process of communication and consultation as between these

different levels of management (Unit Commander and Staff Superintendent); and it

seems to me that the prescribed process is sufficiently flexible to permit a meeting

between the Unit Commander and the Staff Superintendent in order to discuss the

proposed marks (the Unit Commander's “recommendation”), and to consider, together,

whether the appropriate processes have been followed, or there should be any changes –

and why. And if that review results in the Unit Commander and his superior deciding to

alter a few of the marks, I am unable to see how that, in itself, constitutes a breach of the

collective agreement: an exercise of the promotion power “without reasonable cause” (to

return to the words of Article 3.01). On the contrary, a review by the Staff Superintendent

may well ensure compliance with the Rules, and consistency with the Employer’s

objectives or intention, as expressed in those Rules – including providing a check on

mark inflation that had plagued the 1999 process, where the grades were established by a

committee.

I do not think that there is anything objectively “unreasonable” about this

process of consultation and concurrence as between Unit Commander and Staff

Superintendent; and, in my view, it falls well within the scope of what the Employer

expected to happen. Nor am I inclined to read the promotional documents in the narrow,

sentence parsing way, that is urged by the Association – that the Staff Superintendent can

only return the documents to his subordinate for reconsideration, and cannot enunciate

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why he is doing so, or make a recommendations or give advice of his own. On the

contrary, in my view, the Rules contemplate (or at least permit) the possibility of a

collaborative effort.

The Association would have me read the Employer’s policy as if it were a

statute or similar legal instrument, creating some non-delegable “exclusive jurisdiction”,

that only the Unit Commander could exercise – without influence from the superior to

whom s/he is responsible, and who must approve what the Unit Commander has done

(his “recommendations” as the documents put it). I am urged to treat the Unit

Commander as if he were some kind of “adjudicator” bound by something like the rule of

natural justice that “he who hears must decide”. And I am urged to give the Rules a

“strict construction” as if they were some form of legislation.

But that is not the kind of process that the Promotional Rules contemplate,

nor is this exercise in managerial decision making at all like what some judge might do at

a “hearing”, or some administrative tribunal might do, when applying its constituent

legislation. That is simply not an apt analogy for what is going on here; nor is the

promotional policy framed that way.

In my view, the Rules do not foreclose such oversight and collaboration,

and, in fact, they support it. And in any event, even if the practice followed by these two

Staff Superintendents does digress, to some degree, from the precise steps that are noted

explicitly in the Routine Order, I am unable to see any breach of Article 3.01.

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No doubt some of the candidates were chagrined to learn that their marks

were different from what their local bargaining unit supervisor had told them they were

going to be; and it is unfortunate that the bargaining unit supervisors created such

expectation, by revealing the tentative scores before they were published. However, not

only (as I understand it) were the marks supposed to be kept confidential until they were

reviewed and released, but it is evident that the Staff Superintendent must concur with the

Unit Commander’s recommendations, before the grades are finalized. That is why the

Unit Commander’s effort is described as a “recommendation”. And I do not think that the

rejection of a “recommendation” and/or a shared effort to reconcile competing

managerial views, amounts to a breach of the Rules or the collective agreement.

* The Association complains that there is no evidence about

what other Staff Superintendents were doing in other units; and that there is therefore no

evidence that this managerial practice (active oversight by the Staff Superintendent to the

extent of changing marks) was done consistently, or in the same way, across all units.

The Association suggests that not all Staff Superintendents did what these two Staff

Superintendents did, and that therefore there was an impermissible difference in

treatment: candidates were reviewed, in different ways, depending upon which unit they

were in, and depending on the appetite of the overseeing Staff Superintendent to

intervene with the Unit Commander, in this active way. Indeed, the Association points

out that Mr. Blair only undertook this kind of detailed review of his subordinates work in

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the first 2001 promotion cycle, and was much less intrusive in the second 2001 cycle; so

there is an inconsistency of approach within the two 2001 processes. There was more

active Staff Superintendent review in the first cycle and than in the second one.

However, it is important to note that this particular systemic complaint

was not raised in any of the grievances, nor was it itemized in any of the particulars. It

arose only in argument; and in consequence there was nothing, earlier on, to alert the

Employer to the need to call the kind of evidence that the Association says, is lacking –

that is, from units other than the ones in which the grievances (about the allocation of

marks) arose.

This is not a criticism. The Association was not in a position to know how

the manager made up his mind, or what he did or whom he talked to, because the

decision making process was not prescribed; just as the Employer could only respond to

the things that the Association or the individual grievors had complained about.

But in the circumstances, I am not inclined to draw an adverse inference,

with respect to what might have been done in the 50 or more units, from what happened

in two or three of them; and in any event, in my view, the presence or absence of this

kind of Staff Superintendent involvement (which I think the Rules contemplate), does not

in itself answer the question of whether, in a particular case, the Employer has exercised

its promotion function "without reasonable cause".

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I am not troubled that after intervening initially to make sure that the Unit

Commanders were meeting the Employer’s expectations in the new process, Mr. Blair

did not think that he had to do so again. And it is worth noting Mr. Blair’s evidence that

the Staff Superintendents discussed among themselves how they would be involved to

ensure consistency of approach across the units for which they are responsible – which at

least suggests that other Staff Superintendents did something similar to what Blair and

Cleveland did; and there is no evidence to the contrary.

*

In any case, I do not think that this kind of higher level involvement, as

such, breaches either Article 3.01 or the Promotional Rules. In fact, it is consistent with

those Rules.

*

Nor do I find it objectively unreasonable or legally objectionable, or a per

se breach of Article 3.01, for a busy Unit Commander to delegate information gathering

to a knowledgeable and trusted second in command – just as he might do in respect of

other aspects of the Divisional command on a daily basis. I do not find it unreasonable or

troubling if a Unit Commander seeks the second in command’s opinion, on the officers

who are being reviewed; or, by the same token, if he seeks the Staff Sergeant’s input and

involvement, in lieu of directly canvassing all of the supervisors who report to that Staff

Sergeant. For after all, the Staff Sergeant is also supposed to know what is going on in

the employee group for which he is responsible: Sergeants and Constables.

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The Unit Commander may bear responsibility for what happens “on his

watch”, and for making the ultimate decision about where someone is “superior” or

“exceptional”; but I do not think that he has to do everything by himself, or that he must

make his decision in isolation from other managerial viewpoints or input – which he is

free to credit, or reject, as he considers appropriate. Nor must he act in isolation from

other supervisory involvement or viewpoints for that matter (be they from other than the

immediate supervisor, or the Staff Sergeant, or from past supervisors or Staff Sergeants).

*

It is clear that the ultimate responsibility for making the employee

assessment prescribed in the Rules, rests on the shoulders of the Unit Commander. That

is not in dispute. The Unit Commander is ultimately accountable for the decision being

made. It is a managerial decision, which may or may not reflect the consensus of what the

bargaining unit supervisors think the answer should be; and it is his decision. Indeed, the

2001 system reflects an intention to enhance the Unit Commander’s independent role,

rather than having the assessment done by a group, or a committee, of the candidates’ co­

workers.

However, it is also clear that the Unit Commander is entitled to "consult"

with many others, when making that judgment, and to act upon what he hears. For as I

have already noted, under the Rules, "the Unit Commander may consult with the

applicable Staff Superintendent or director [a higher level of management] as required";

and if the candidate has recently joined the unit, the Unit Commander is required to

consult with the candidate’s previous Unit Commander [a parallel level of management].

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The Unit Commander is also entitled to seek additional "input" from supervisors who are

members of the bargaining unit - indeed, the Association claims that he must do so. And

the documents contemplate that the Unit Commander may consider a whole array of

factors, on which the opinion of others may be helpful: the prescribed competencies; the

service’s core values; the candidate’s experience, skills and abilities; the candidate’s

contribution to the Service; past and present performance; the potential to perform in the

rank being applied for; the candidate’s personnel file; the candidates application; loyalty,

professionalism and dedication to the Service and community; the candidate’s

contribution to the Service/unit priority; demonstrated leadership skills; and so on.

All of these factors are mentioned in the promotion documents as matters

which the Unit Commander may take into account; and it is quite conceivable that that

other managers, including the second-in-command, may have something useful to say

about these items – either directly, or indirectly through the medium of notations in the

employee’s personnel file. The Unit Commander is entitled to consider and credit those

indications, as well as to follow up, as s/he considers necessary. And it seems to me that

it would be an odd system, which compelled structured input from other members of the

bargaining unit, (as the Association demands), but prohibited the input or involvement of

other levels of management – especially when the agreement says that promotion is an

“exclusive” management prerogative.

There is nothing in the Rules of the collective agreement which expressly

excludes the involvement of the second-in-command, or precludes him from gathering

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information about the candidates, or from helping the Unit Commander to perform the

functions for which the Unit Commander is ultimately responsible. There is nothing

requiring the Unit Commander to do all of his own digging or investigation; or which

prevents the second-in-command from gathering and funneling relevant input to the Unit

Commander – or from expressing an opinion, which the Unit Commander may endorse.

Nor is there anything which prohibits the Unit Commander from seeking such advice or

opinions as he considers useful – from the second in command or others. And I am

unable to find that restriction expressly, or implicitly, in Article 3.01.

In other words, I do not see anything wrong in involving the second-in­

command in such activities – or the Staff Sergeants (the intermediate bargaining unit

supervisors), for that matter; just as they both might be involved in the other ongoing

business of the Unit. In my view, such involvement is not proscribed by the Rules, nor is

it a breach of the collective agreement.

Once again, it is conceivable that there might be a fundamental error by

the second in command which, if embraced by the Unit Commander, could result in a

contravention of the collective agreement - just as the involvement of the Staff

Superintendent or Staff Sergeant could conceivably result in a challengeable outcome in a

particular case. However I do not think that delegation or sharing of responsibilities, is in

itself a breach of the Rules or the collective agreement.

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The “immediate” supervisor’s “input”.

In the foregoing discussion, I have considered the Association’s complaint

about the involvement of other management personnel in the rating of candidates; and I

will look later on, at what those managerial personnel actually did in those instances

where they were involved. However, as I have already noted, the Association’s primary

“systemic complaint” does not focus on the involvement of other managers at all, but

rather on the role which it says, must be assumed by other bargaining unit members.

Because the Association contends that the 2001 process should have required “input”

from the candidate’s immediate supervisor – the Sergeant or Detective-by means of face

to face meetings, in each unit. And as the Association sees it, all units, large and small,

specialized or otherwise, must follow the same template of face to face meetings.

*

The Association says that involvement of that kind was provided for in

1999, and that it should have been mandatory in 2001, as well. The Association says that

because something like the 1999 practice was not followed in 2001, there has necessarily

been a breach of Article 3.01 of the collective agreement.

*

The Association’s position is that the failure to provide for this mandatory,

structured (via local meetings) input from the immediate supervisor, is a fundamental

systemic flaw that invalidates the whole selection process, by which candidates were

divided into categories. Such flaw also undermines the Unit Commander’s determination,

in any situation in which there was no face to face meeting with the immediate

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supervisor. And according to the Association, there is no substitute for such meeting. Nor

is it sufficient if the Unit Commander receives such information indirectly – for example,

from the Staff Sergeant, who is also a bargaining unit member, and who oversees both

the immediate supervisors in question and the Constables whose performance is being

considered and categorized. The Association says that input from the Staff Sergeants

about the candidates is not good enough – even if they canvass the immediate supervisor

before expressing an opinion.

The Association's position is based upon the assertion that the immediate

bargaining unit supervisor is in the best position to observe and assess the Constable’s

day to day performance, and that therefore (according to the Association) s/he is also in a

good position to express an informed opinion about the candidate’s relative performance

(a different thing) and “potential” in the next rank (something different again).

Accordingly, the Association submits that this current bargaining unit supervisor, has

relevant information, which the Unit Commander must solicit and consider when the

determining whether the candidate is competent, superior or exceptional. Indeed, not just

“relevant” information – but critically important information, that must be received

directly from that supervisor, and in person.

The Association submits that without such information, drawn from a

face-to-face meeting, the Unit Commander cannot make a valid or contractually

sustainable judgment about the candidate’s relative position: competent, or superior, or

exceptional. Or, returning to the words of Article 3.01: there cannot be “reasonable

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cause” for what the Unit Commander has done, without this other member of the

bargaining unit having had his/her say, in the way that things were done back in 1999.

The reduction of the role of the immediate supervisor in 2001, makes the process ipso

facto, “unreasonable”, and the results unsustainable under Article 3.01.

In short, he Association submits that this source of information, and this

mechanism for receiving it, are both required by the collective agreement. They are an

implicit structural and a substantive component of "reasonable cause", without which the

decision-making process is fundamentally flawed; because the Unit Commander is

obliged to look for and consider all “relevant” “evidence”, and the immediate supervisor

has much that is relevant – in fact, critical – to say.

Accordingly, the Association submits that the Unit Commander must seek

out this information; and that the way that s/he must do this, is by structured supervisory

meetings, in each unit, as happened in 1999. There must be a meeting in each unit,

composed of bargaining unit supervisors at both levels; those present must all go through

the documentation together (including all of the personnel files); they must deliberate,

together (rather like a tribunal); and they must clearly document what they did (notes or a

transcript), so that it can be reviewed by any candidate who wishes to do so. Because

Article 3.01 requires “transparency” as well.

Moreover, according to the Association, the who, when and how, for such

meeting must be expressly stipulated and followed identically, in each subdivision of the

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Employer’s organization, regardless of any organizational differences between them.

They all must follow the same template. Because that is required, the Association says,

by the Article 3.01 requirement to have “reasonable cause” for the way in which the

member is dealt with – which in this case, relates to the “reasonable cause” that the Unit

Commander must have for distinguishing candidates, one from another.

According to the Association, the absence of such compulsory meetings

and explicit “rules of behavior” (that, it is said, flow implicitly but inexorably from

Article 3.01) , and the absence of face to face meetings, held, identically, in all units,

large and small, present a fundamental problem, that undermines the whole system. It

means that the Employer cannot establish “reasonable cause”, for the opinion that the

Unit Commander has expressed (superior vs. exceptional), without the “say” of the

immediate supervisor, received in this way.

***

However in my view, there are a number of problems with this proposition

- and with elevating a particular kind or source of information, to a compulsory

procedural requirement, divorced from the circumstances of the individual under review,

or the setting in which s/he and the Unit Commander work (basically, that the Unit

Commander cannot properly consider the promotion of one bargaining unit member or

put the candidate into one of the three classes, without the input of another bargaining

unit member, via a whole series of mandatory meetings - and regardless of whether such

supervisors actually have anything novel or useful to say in a particular case). And in my

opinion, that proposition is especially problematic when neither the collective agreement,

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nor the Promotional Rules provide for such meetings, and when the evidence is that they

were burdensome and not particularly useful, back in 1999, when that system was used

before.

* It is probably true that the immediate supervisor MAY

have something “relevant” to say – as may any supervisor with whom a candidate has

worked for some period of time. Indeed, given the seniority and mobility of the

candidates, there are any number of past supervisors who MAY have something useful to

add to the picture of the candidate’s performance or potential. But I do not think that it is

as clear as the Association says it is, that the current bargaining unit supervisors will

ALWAYS have useful - let alone critically important or determinative and otherwise

“unknowable” -information to provide, without which the Unit Commander cannot

possibly, or fairly, or ‘reasonably” do the categorization required of him by the Rules.

Nor that the ultimate conclusion (superior versus exceptional) is automatically

“unreasonable” and invalid if there may be some arguably relevant (possible) information

available that the Unit Commander did not seek out and evaluate in the way that the

Association suggests – that is, without hearing directly from the candidate’s supervisory

co-workers, through some fixed system of committees.

It is true that the current supervisor may have first-hand knowledge about

what the persons under their supervision are doing from day-to-day, but it does not

follow that such supervisor will always be able or willing to give a definitive and useful

assessment of the candidates' performance and potential, as defined in the 2001

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Promotional Rules. That depends upon the quality of the supervisor himself/herself, the

extent to which s/he understands and endorses the factors which the Employer is looking

for, and his ability and inclination to be accurately, and meaningfully, critical of a

coworker – not an inconsequential concern, where even the Unit Commander may have a

tendency to “promote his own people”, and where that has not been the Employer’s

experience. Moreover, I accept Mr. Grant's evidence (which was consistent with the

views of all of the other management witnesses) that the bargaining unit supervisors were

inclined to be rather generous in their ratings of their coworkers (as they were on the

annual evaluations), which blunted the utility of such input. They tended to be “easy

markers”, to adopt the terminology mentioned above.

All of the management witnesses acknowledge that the views of the direct

supervisor may be helpful. But they did not agree with Association’s suggest that it was

critical or absolutely necessary – or the only source of the same information. And they all

emphasized that a managerial view of the matter was more significant, and less likely to

be influenced by extraneous factors, like solidarity with a co-worker (although I am

constrained to say here, that the Unit Commanders themselves do not seem to be immune

from such influences, when it comes to promoting officers from their own unit – see the

evidence from the managers in SIS recorded below). The “platoon perspective” is not the

best one, when it comes to determining who should be promoted.

It is also clear that there are a number of other sources of information,

upon which the Unit Commander could plausibly base his conclusion (i.e. that would

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give him “reasonable cause” for the result reached: exceptional vs. superior), without a

face-to-face meeting with the current supervisor at all - including input from other

supervisors or managers, input from the Staff Sergeant to whom the immediate

supervisors report, what those very same direct supervisors may have said in the past, or

what they themselves have recorded in the candidates’ annual evaluations (where it was

open to them to express views about the candidate’s promotion – as some of them did).

Where there are a string of such evaluations available in the file, it is not

evident to me why the Unit Commander, must necessarily consult the immediate or most

current supervisor to solicit his opinion on the candidate’s relative performance and

potential; because the pattern of performance – mediocre or exemplary – may be readily

apparent from the record itself, or when that record is read in conjunction with others.

Moreover, it is not unusual for a candidate to have several supervisors, in the period prior

to applying for promotion, especially in a big unit; so that it is not as simple as the

Association says it is, to get the input of everyone who has something “arguably

relevant” to say – through meetings or otherwise. Indeed, if the test is “arguable

relevance”, then there will be many persons whom the Unit Commander may have to

“consult” before forming an opinion – not just the most recent supervisor.

For what is significant about the 2001 process, (and which I do not find to

be at all “unreasonable”) was the Employer’s desire to get the Unit Commanders own

managerial assessment of the pool of potential leaders – not that of their peers, or a

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committee; and to get that opinion in a way that would force the Unit Commanders to be

selective, and not just supportive of the candidates from their own units.

Furthermore, however, attractive as it may be to say that “the Unit

Commander must solicit and consider all relevant evidence” (which has a nice “quasi­

judicial ring” to it), I do not think that such test is actually workable as a basis for system

design – let alone, an implicit, or unwritten, but nevertheless, compulsory requirement of

Article 3.01, that can only be obtained via the kind of system of local committee

meetings described above. And of course, the Rules provide for no such thing. They

merely require the Unit Commander to look at a variety of factors in order to satisfy

himself/herself that there is a sound basis for his/her category choice, and then to

demonstrate, if s/he has to, that there was “reasonable cause” for that broad choice.

The Rules do not prescribe the details of how s/he goes about soliciting

the information that s/he is acting upon, and neither does the collective agreement.

Nor am I able to accept as a bald proposition, that, for example, the Staff

Sergeant will never be sufficiently well placed or well informed to give the Unit

Commander what s/he needs – especially if the Staff Sergeant is instructed to solicit the

opinions of the immediate supervisors, and then report their views to the Unit

Commander. But I do accept the submission that it would be very burdensome, from an

organizational perspective, to devote the resources necessary to convene multiple

meetings with immediate supervisors, as a matter of course - a practice that was followed

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in 1999, but, which, in Mr. Grant's view, was not warranted on a cost-benefit basis (i.e.

what the supervisors had to add, did not justify the organizational effort and disruption

that was necessary to get it).

So while I do not accept Employer Counsel’s submission that it would be

a “waste of time”; neither do I think that Article 3.01 commands such expenditure of

time, or that a valid decision cannot be made without such expenditure or meeting

structure.

It is also clear that the employee's personnel record may contain a wealth

of information which may make it perfectly clear where a candidate sits in relation to

others in the rank - regardless of what his current supervisor has to say about it; and the

Unit Commander may also have personal information or knowledge - as may many other

managers in the unit.

The trail of experience, or commendations, or awards, or law enforcement

successes or failures, disclosed in that record, may speak for itself; just as the relative

absence of such things from a candidate’s record may also be telling. Moreover, if there

is not consistency between what the former evaluations or the bargaining unit members

have to say, and the written record, that may, in itself, be telling.

Nor do I think that I can discount the fact that it is the Unit Commander

who has to distribute the candidates in his/her unit, among the categories available, and

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thus s/he may be better able to see the big picture than an individual supervisor; and, I

think that it is axiomatic, that this member of management, is likely to have a better sense

of what the Employer is currently looking for (which may or may not be the same things

as when existing Sergeants were appointed in the past). They hold the position they do

because of their managerial abilities – although it is useful to note that all of the Unit

Commanders who testified had also been Sergeants and Staff Sergeants. They had held

that rank themselves.

*

Against that background, it is difficult to elevate the opinion of the current

supervisor – the lowest rung in the ladder - to such fundamental, a priori significance –

the sine qua non - that the Association wants it to be; or to erect an implicit requirement

that in order to get such “input” there must be a compulsory system of face-to-face

meetings.

*

There is nothing in the Rules or Article 3.01 that explicitly calls for such

structure or result; and as I have already mentioned, the focus of the clause is on the

treatment of the individual member – not the “system”, as such.

*

It seems to me that it is relatively easy to construct scenarios, where the

Unit Commander’s decision could be made, and quite plausibly defended, without any

reference to the immediate supervisor at all - for example: if the Unit Commander had

personal knowledge of the candidate's performance so that what the supervisor had to say

would be superfluous; or if the Unit Commander had come to know about the officer

255

from a previous performance or promotional review; or if an obviously exemplary officer

with a string of commendations and law enforcement successes applied for promotion; or

if a Staff Sergeant or second in command, was aware of the candidate's performance, in

relation to others for whom he was also responsible, and communicated that to the Unit

Commander; or even if the subject supervisor has already expressed a view on the matter,

formally or informally, or in some past promotional round making a further “meeting”

superfluous. Similarly, if it was evident to the Unit Commander, looking at the situation

as a whole, that a particular officer was deficient or mediocre.

Moreover, as the information before me readily demonstrates: the

bargaining unit supervisors themselves were by no means unanimous about how they

viewed particular officers; and some (like Officer Smallbone) may not even have paid

close attention to the definitions that they were supposed to be applying (which helps

explain the Employer’s reluctance to make peer evaluation to sina qua non, for who will

be promoted). And if the Unit Commander knew of the personal friction between the

candidate and his current supervisor, would it be fundamentally wrong to skip the opinion

of this potentially “biased” observer, and go back to the record or to someone else?

*

Let me take another example – not necessarily applicable to particular

grievors, but one drawn from the evidence that was put before me.

*

I was told that, for some years, it was possible for an officer to be

temporarily or informally promoted to the next rank, and to serve for a time, at that rank,

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(“acting Sergeant”) as a “fill in” for someone else, or in order to meet some other

organizational need of the moment. I was told that this was a good experience for the

individual officer to have, and that it was also a potentially useful test of his/her abilities

as a “supervisor” – an opportunity to show leadership abilities, to take responsibility, to

do the paper work, and to stand back from the other rank and file Constables and evaluate

what they are doing from a different perspective. Accordingly, an officer with such

experience – in the very rank sought – would probably have a “leg up” when the

possibility of a permanent promotion comes along (assuming that s/he did a good job of it

before); and the fact of this past experience (success or failure) would be a useful one for

the Unit Commander to know, and to consider, when deciding who has “potential”. For if

an officer had such experience it might well nudge him/her above others, regardless of

what the immediate or current supervisor had to say about it. And perhaps it would make

it unnecessary to consider such current supervisor’s views of the matter: the record would

speak for itself.

This is not to say that everyone with such temporary assignment is ipso

facto better than all those without it; and I also heard that, in recent years, such temporary

“field promotions” have been abandoned. This is only something that would appear on

the historical records of some individuals. But like a string of commendations, or a record

of career successes, it might well (and properly) be sufficient, or at least highly

significant to distinguish the “superior” from the “exceptional” – whatever the immediate

supervisor had to say.

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I do not think that it is necessary to multiply the hypothetical examples. I

simply do not agree with the Association’s submission that Article 3.01 (the requirement

to have "reasonable cause" for the exercise of a decision-making power in respect of an

unhappy member), makes it mandatory to speak to the immediate supervisor, or makes

that supervisor’s verbal input the absolutely indispensable prerequisite for a “reasonable”

assessment process, or a reasonable and defensible result.

Nor do I agree that Article 3.01 compels the Employer to construct the

edifice of meetings demanded by the Association..

The immediate supervisor may well have critical information that cannot

to be gleaned in any other way, and which would significantly contradict other

information upon which the Unit Commander might be inclined to act. In a particular

case, such information might significantly alter the picture painted by the other materials

available; and if the Unit Commander proceeded without such truly critical information,

not otherwise available, then the determination might not withstand scrutiny under

Article 3.01. But it seems to me that this is a matter of proof in a particular case.

However it does not follow that this will be so in every case, or that in

order to foreclose this possibility, the Employer is obliged to engage in a framework of

structured meetings of the kind that it conducted in 1999 – particularly given the results

in 1999. For it seems to me that the Unit Commander may be able to reach a perfectly

plausible, and reasonable, and defensible opinion on whether a candidate is “superior" or

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"exceptional" or just “competent”, without any direct communication with the immediate

supervisor at all.

It seems to me that a failure to consult a current supervisor may result in a

breach of Article 3.01 in particular circumstances, or may, together with other defaults,

support a conclusion that the Unit Commander has acted, or made a determination,

“without reasonable cause”. Indeed, if a supervisor was not consulted and can point to

important information that was not considered by the Unit Commander, then the

grievor’s claim may be unanswerable.

However, I am not persuaded that this particular kind of input is

unquestionably and inevitably necessary in all cases, or that the absence of a formalized

systematic structure to solicit this particular form of opinion from co-workers,

contravenes Article 3.01 of the collective agreement.

*

I take the same view with respect to the complaint about “consistency”:

that each Unit Commander must go about doing things in exactly the same way,

regardless of the circumstances in each unit, and regardless of what s/he actually need to

know (or may already know), about the individual, in order to assign him/her to one

category or another. I simply do not think that Article 3.01 demands such uniformity of

process; and the Rules certainly do not.

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What the Rules and the Agreement do require is a reasonable and

defensible result; but I do not think that differences of procedural approach are per se

unreasonable or discriminatory, within the meaning of Article 3.01 - just as I do not think

that it was unreasonable or discriminatory for Mr. Blair to go over things carefully with

his Unit Commanders in round one in 2001, but not to bother doing so, in such detail, in

round two (although the process was undoubtedly “different” in this respect, the second

time through). Likewise if one Unit Commander involves a Staff Sergeant or his second

in command; and another does not. There is a difference, but I do not think there is an

ipso facto, breach of Article 3.01.

Finally, I think that it is worth repeating the concern expressed in Part VI

of this Award : that with all the focus on “process” and “system” and “rules” (or the

impugned failure to have even more “written rules”), I have no actual evidence from the

Association of any exceptional candidate with whom the grievors can be directly

compared, to see if there is a demonstrable or justifiable difference between them. Nor do

I have a string of immediate supervisors, testifying to the critical things about a candidate

that the Unit Commander missed – but would not have missed, if s/he had only talked

directly to them. There is nothing of this kind (from the Association) to establish that the

grievors are as good as, or better than, those whom the Unit Commander has favored with

his unqualified support, by rating them as “exceptional”. And in my view, such evidence

might have been far more revealing about the quality of the Unit Commander’s decision

making than, for example, whether he got the direct input of the current supervisors, or he

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sought out information, indirectly, via the Staff Sergeants to whom those supervisors

report. The “platoon perspective”, as one witness called it.

The “Quota Issue”

I am satisfied, on the evidence before me, that there was no “quota”. I

accept that some of the grievors may have genuinely believed that there was a “quota” of

“exceptional” rankings (i.e. a specific numerical limit on the number of “exceptional”

ratings that could be given out); and also that these grievors may have been told that there

was a “quota”, by their bargaining unit supervisors. However, I find that the supervisors

who used that terminology, were merely trying to avoid controversy, or criticism for not

sufficiently plumping for that employee’s candidacy. It was a way for the supervisors to

deflect criticism from themselves, and to mollify a disappointed co-worker; and it was a

tack that would not be unnecessarily discouraging (bearing in mind the testimony that a

‘superior’ rating was still a pretty good one). So it served that purpose as well.

However, every single managerial witness denied that there was any

arithmetic quota; and I do not think that the evidence suggests otherwise. Moreover, if it

were true, one would expect that there would be witnesses who could have testified to

that effect. And there wasn’t. And one would also have expected that a quota would have

produced “quota-like results”. But that is not how the mark distribution came out (unless

the mythical quota was abandoned between the first and second rounds in 2001).

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No doubt there was some general “quota-like discussion”, to the effect

that not everyone could be rated at the very top: “exceptional”. That was consistent with

what each Unit Commander had been told; and that kind of conversation probably

accompanied the assignment of the candidates to the various categories: competent,

superior, exceptional. Because it is clear that, in some instances, the Unit Commander

was uncertain about which category best captured the applicant’s situation, and there

probably was some discussion about that: how do we pick a label that will be fair to the

individual, and fair to the outcome that the system was designed to achieve? How do we

be fair to “the real 15’s”? However I find that there was no “quota” generally, and no

rigid “quota” applied at the Divisional level either.

THE CATEGORY 2 GRIEVORS, UNIT BY UNIT

Many of the complaints advanced on behalf of individual grievors have

already been addressed, in a general way, in those sections of this Award that deal with

systemic or process issues; and as noted above: when it comes to the actual content of

their evaluation (why they were considered superior but not exceptional) the absence of

any direct comparator (at least from the Association) for the any of the grievors, makes it

difficult to establish whether any of them were under-rated, in relation to their actual

competitors. Because, the fact that the grievors may have been looked on as very good

officers in some other promotional processes, or in some earlier annual evaluation, does

not help very much in determining the “correctness” or the “reasonableness” of their

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relative ranking in 2001 – a point to which I will return below, when I look at the Unit

Commanders’ views on that question. And it is not disputed that, (with one exception),

the grievors were all “superior officers”, with “high level potential” for success at the

next rank. They were all good candidates, from this perspective.

Nevertheless, (and notwithstanding what I have said about “process”

above) I think that it is necessary to look briefly at the process that was followed at the

Unit level, to see whether it was sufficiently aberrant or obviously “unreasonable” to

trigger a concern under Article 3.01, even in the absence of a clear interpersonal bench

mark for comparison purposes, to see whether an individual was undervalued.

However, in so doing, I am mindful of the need for a degree of arbitral

deference to such individual and inherently subjective professional judgments, passed by

experienced officers, who have seen the full field of candidates and know what they are

looking for, and what they need to know to make this kind of decision.

And I am also mindful of the fact that what we are dealing with here, is

not some incongruous and irreconcilable chasm, but rather the degree difference between

the “superior” and the “exceptional” - and whether it can be said that there was no

“reasonable” basis for the Unit Commander’s assessment of that difference in the

grievors’ case.

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Division 41 – Officers Horner and Gautier

Division 41 does not provide fertile ground for “systemic arguments”,

because the Unit Commanders in this Division (Darson Keller for one round, and Steve.

Merrier for the other) engaged in a process of consultation quite similar to what the

Association urges must be done systematically for every Division: direct and individual

communication with Sergeants and Staff Sergeants (although it is not clear to me whether

the consultation with these line supervisors was done via formal “meetings”, or rather, as

seems likely from the evidence, more informally). Moreover, the initial focus of the

grievors’ concern in Division 41 was the alleged “quota”, and not on other aspects of the

evaluation process; and, as noted above: there was no quota.

However, what is interesting about the evidence from 41 Division is

Officer Horner's consistent rating (“superior” – 10/15), in both 2001 promotion cycles,

by two entirely different Unit Commanders looking at the same material (which absent

persuasive contradictory evidence - of which there is none - suggests that it is probably

right, or at least reasonable); Inspector Keller’s testimony with respect to the usefulness

of the former annual and past promotional assessments (not very – they have to be looked

at with considerable care); and Inspector Keller's very helpful reference to two

“exceptional” officer-comparators (Tobias and McLean) whom he had rated more highly

than grievors Horner and Gautier, and who therefore provide an illustrative bench mark

for comparison of what it means to be “superior” vs. “exceptional” - although, as it

turned out, Tobias and McLean were not promoted either (which illustrates that receiving

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a “15” does not guarantee promotion, and also that the “loss of opportunity” of which the

Association complains, may not be worth very much).

Mr. Keller further confirmed (as do the statistics) that being rated a “10” is

not a “kiss of death”, any more than being rated a “15”, makes the officer a “shoe in” for

promotion. (It didn’t; and it wasn’t for Tobias and McLean). The exam scores matter too;

as do the other marks that are given more mechanically at the local level. The two and a

half mark increments that are the “fighting ground” in this case, are still a minor aspect of

the process, and the other facets of the evaluation matter much more.

*

Mr. Keller carefully and plausibly explained how the past annual

performance evaluation tools and the 1999 promotional assessments were not indicative

of whether a particular officer would be “superior” or “exceptional” in 2001 terms, and

in his view, (which I accept) they certainly did not provide a basis for distinguishing

between those two “new’ 2001 categories. The older scales were weak in various ways,

and at most, identified a class of very good officer that still had to be subdivided, once

again, in 2001, into “superior” vs. exceptional candidates. The issue of “potential” was

missing from the 1999 scoring (Mr. Keller testified that the BEI interview was expected

to plumb that question in 1999); and the annual evaluations had their own problems as

well (see also above) – including the reluctance of the evaluator to be frank, and his/her

own experience and reliability as a supervisor (all seem to agree that a Sergeant with

many years experience might be in a better position to give an informed judgment than a

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newly appointed one – although it does not follow that s/he will do so, or that the Unit

Commander will agree with such evaluation).

Mr. Keller (like the other managers) emphasized that an assessment of

performance in the job, was not the same as an assessment for promotion in rank; and

that the perspective of the manager at the Unit Commander level was different than that

of a Sergeant – even assuming (which none of the managerial witnesses were prepared to

do, unequivocally), that the immediate bargaining unit supervisor’s views about

promotion would be frankly given, and were inherently reliable. Nor, according to Mr.

Keller, did it matter very much that superior officers had “signed off” on the annual

evaluation, because that only confirmed that it had been done – not that the superior

officer necessarily agreed with it. For it was understood that management would look at it

again, with different eyes, and in conjunction with much else, if the officer later came up

for promotion.

From Mr. Keller’s perspective (and recall that he followed the procedure

that the Association asserts should be followed), the system of candidate evaluation in

2001 was different, and cannot be easily compared with these earlier assessment tools

concerning competence in the rank – at least in the absence of the maker of the

document, or someone similarly situated, to support the paper evaluation, and relate it to

what was being asked for in 2001 (i.e. without the actual testimony of the bargaining unit

supervisor about his rating of the candidate and what it meant in 2001 terms). It is rather

like looking at old judicial review cases, and trying to figure out what the result would be

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today if one were to apply the “new” expanded spectrum of standards review, to what

was decided before under the old tests. The older opinions and results, do not fit

automatically into the new framework where the approach is different.

Nor are the earlier evaluations themselves always clear, in 2001 terms – as

they cannot be, since they were done for a different purpose.

For example, suppose that the annual evaluation says (as some of them do)

that the officer is a “good candidate for promotion” or even ‘a very good candidate for

promotion”. Does that mean that there is sufficient potential for success at the next rank,

or a high level of potential for success at the next rank, or outstanding potential for

success at the next rank – to use the wording from the definitions in the 2001 Rules, and

bearing in mind that the evaluation was about performance in the rank and was not

looking at potential at all?

Similarly, can one assume that the phrase “good candidate for promotion”

means (at the time, and in the view of that evaluator), that the officer consistently

performs at a higher level than expected or only usually does so (to return to the 2001

definitions)?

“Superior performance” or “exceeding expectations” (the terminology

from the evaluations) may well identify who is “superior” ; but that does not necessarily

distinguish the very good from the very best – which is the point of the 2001 categories

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and definitions, and is the point of controversy for all but one of the grievors in this case.

However, without these Sergeants and Staff Sergeants as witnesses to explain what they

meant, together with their actual assessment, in 2001 terms, and without an examination

of the candidates’ relative strengths in comparison with other candidates, it is difficult to

put much weight on the paper claim. For without that information, there is at most, a

disagreement - and perhaps not even that, since the questions being asked are different.

And recall that Staff Sergeant Smallbone did not follow the 2001 definitions in any event.

* By contrast, I think that the actual reference to the two

“exceptional” officers, rated in 2001 terms (Officers Tobias and McLean) does help to

illustrate what Mr. Keller was getting at; because, as he explained it, these officers

differed in material ways from the two “superior” grievors - thus justifying the difference

in ranking, and also supplying the kind of perspective which illuminates the comparative

process that all Unit Commanders were required to apply in 2001: who was “really

good”, and who was a little better: the “best of the best”?

Tobias and McLean had both applied for promotion in 1999; they had

both been rated at the top of the UMAT 1999 scale (performance in the rank - excluding

“potential”), and neither of them had been promoted in 1999; yet in Mr. Keller's opinion,

(which was not successfully contradicted) both were better than the two Division 41

grievors in 2001, and both were “ripe for promotion”. Both of these comparators had

been “acting Sergeants” when that temporary status had been allowed; and Mr. Keller

said that he would have no hesitation in making such "field promotion” again, in their

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case, if that were permitted. They were leaders. They stood out. He had confidence in

them. They had done the job – successfully, if temporarily – before.

Mr. Keller also made it clear that he knew all four of these individuals,

(the two grievors and the two comparators) personally (recall that he described his role as

post-evaluation Counselor for the 330 officers in Division 41); and he said that he was

entirely comfortable with his decision. All four were highly “promotable”, and all four

were strong candidates. It was just that Tobias and McLean were relatively better.

Keller testified that McLean and Tobias were exceptional and the grievors

were not; and it seems to me that his evidence about these officer-comparators (which

was unexplored and un-contradicted by the Association) helps to illuminate why - and

also shows what is actually going on here. For as Mr. Keller put it, "what matters is

where they are in relation to others"; and in this case, he thought the comparators were

better. And these comparators also provide an actual human benchmark for being

considered “exceptional”, not unlike what one sees in a “normal” promotion case.

Conversely, there was no evidence from the Association of another

exceptional candidate to whom the grievors could be favorably compared, to bolster their

claim that they had been under-rated, and that they too, were exceptional; nor did I hear

from their supervisors. As Employer Counsel pointed out: there might have been a

disagreement between Keller and those supervisors at the time, or if they had had given

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evidence in these proceedings; but the fact is, the only ones asserting that the grievors

were “exceptional” were the grievors themselves.

There is nothing in the material before me (including the former

evaluations or promotional assessments about which Mr. Keller testified), to cast any

doubt on the “reasonableness” of these Unit Commander assessments in Division 41; and

in fact, the evidence in the grievors’ personal documentation, is not inconsistent with the

way they were scored. Mr. Keller was not taken, in detail, through the “green books” of

the comparators, and I will not go there either. I merely note that the “blue books” for the

grievors do not obviously show more than what Mr. Keller says about the grievors: that

they were superior officers – very strong candidates for promotion, but not “exceptional”.

There is no plausible and objective basis for disagreeing with his

assessment, and no reason at all to regard it as “unreasonable”. Or put in terms of Article

3.01: in my view, Mr. Keller’s assessment of “reasonable cause” was not successfully

challenged or contradicted.

To be fair, the grievors’ complaint in Division 41 focused on the "quota

question”, rather than their relative ranking in the Unit. The evidence of their abilities

was not developed as fulsomely as it was in some other cases. Accordingly, it is

unnecessary for present purposes, to say anything more than that I am not persuaded that,

in these grievors’ cases, there has been any breach of Article 3.01 of the collective

agreement.

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* I might note, parenthetically, that Inspector Keller (like a

number of other Unit Commanders) shared the Association’s preference for a full

numerical spectrum – not just 5/10/15. He would have preferred “12’s” and “7’s” rather

than closed categories. However, his candor in criticizing the system that he was working

with, and the care that he and Mr. Merrier took to "get things right", merely bolsters my

conclusion that the evidence does not establish any contractual breach at Division 41.

The grievances of Horner and Gautier are therefore dismissed.

SIS - 0fficers Perry, Christie, Josefobic and Burke

The Special Investigation Service (“SIS”) was considered by its senior

officers to be among the “elite units” of the TPS, which encompassed five specialty sub­

units (e.g. the “morality squad”, or the “drug squad”). I was told that in order to be in SIS

at all, an officer had to have considerable training and investigative experience – although

the distribution of such experience is irregular across the sub-units. For example, I was

told that there were 103 applicants for two recent openings in SIS, and that those 103

applicants “competed” for the privilege of coming to the Unit – preparing resumes, and

attending interviews, much like a promotion.

SIS was a desirable place to work, so that the Employer can be quite

selective about who gets to be there.

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It is not disputed therefore, that SIS has a high concentration of

experienced and veteran investigators, with a high level of talent; and it is therefore not

surprising that quite a number of those officers applied for promotion in 2001 (about 35

candidates), and that quite a number of them were regarded as “exceptional”.

The evidence concerning managerial decision making in SIS came from

Ron Tavener, the Unit Commander who was then responsible for the evaluations

(although he was on his way to another Unit at the time), and from Don Campbell, his

second-in-command at SIS. Tavenener and Campbell have decades of police experience,

not only in management, but also at the supervisory level (in the bargaining unit) as

Sergeant or Staff/Detective Sergeant. They are fully familiar with the work of the SIS,

and the investigators who work there – including the morality squad where the grievors

come from. As Campbell put it “I know the officers pretty well, and so does Tavener”.

Campbell and Tavener were involved in the promotional evaluation

process in 1999, when two of the four grievors (Perry and Christie) also applied; and

accordingly, they would have reviewed the applications and the records (on the 1999

basis), of these two grievors, at that time – that is, a couple of years before the 2001-2002

promotional exercise that is under review in this proceeding. The evidence indicates that

Tavener and Campbell were well aware of the range of talent within their Unit.

*

Tavener and Campbell both testified that the nature of the investigative

work in SIS (with its team emphasis and much in-the-office strategizing), meant that the

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work of the investigators would come to attention of the Unit Commander and the

second-in-command (in this case, Campbell, who was directly involved). Tavener

testified that he received daily reports on the subunits (including the morality squad

where the grievors worked), and that there were regular progress meetings, and additional

meetings, with the Detective Sergeants, on a regular basis to review ongoing projects.

Such review included both what the investigators were doing, and how they were doing.

There was a continuous review of the progress of the investigations, and arrests being

made, including the contribution (positive or negative) of individuals – “who is a

performer and who isn't”, as Tavener put it.

This ongoing dialogue with Detectives, Detective Sergeants and the

Inspector was described by Tavener, as the ordinary “management tools”, that are applied

to the work in progress, and which allow management to identify the relative

contributions of the investigators, as well as the success of the project as a whole. This

current operational information supplements the annual appraisals that are also done

periodically, and that can be considered along with whatever else is evident in the

employees’ personnel files, (which mostly make their way up the line, for information

purposes, whether or not the higher level officer does any active follow up).

*

Tavener testified that, as Unit Commander he is most familiar with the

high performers and the low performers, and that he would not necessarily be very

familiar with those who are in the middle, or who do not stand out. Then again, such

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individuals could not plausibly claim to be "exceptional", within the meaning of the 2001

definition.

* Don Campbell described the way in which SIS

investigations unfold, as well as his involvement with the work of subordinate officers at

all levels (including Sergeants, Detective Sergeants and Detective Constables). He said

that "risk management" requires close contact and knowledge of what these officers are

doing day-to-day; and in the case of some groups (the morality squad, for example), the

senior officer also has to "really watch", them for signs of stress or burnout. Moreover,

because quite a bit of their investigative work takes place in the office, he routinely

worked with these investigations and was briefed about ongoing issues.

Campbell testified that he was very familiar with the morality squad

grievors and their work, because their operational plans and work needs were a funneled

through Campbell himself. It was also easy to check the daily work logs to see what the

investigators were doing, and how they were managing their time (a productivity as well

as quality consideration).

Tavener and Campbell repeated the same reservations about the utility of

the 1999 promotional rankings and the annual evaluations, that had been articulated by

other senior officers. The 1999 process did not look at the same factors that were being

considered in 2001, nor did the 1999 approach address those issues in the same way; and

the annual evaluations had biases and problems that I have already discussed. Campbell

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and Tavener thought that the Sergeant-supervisor might or might not be good at rating

someone “in the job”, but management had a much better sense of the promotional needs,

despite glowing references from the candidate’s co-workers – something that had to be

put in proper perspective.

As they saw it, the Sergeant was not in the best position to assess someone

for promotion. It was good to have such input, but it was not necessary.

Mr. Campbell noted, (among other things), that Sergeants and Staff

Sergeants tend to overrate and promote the members of their own platoon – then

conceded that he did the same thing at the Unit level, given his view of where SIS ranked

in relation to other units in the TPS. Like the other senior officers, he was aware of the

problem in 1999 of “mark inflation” and about having too many candidates at the top; but

he does not seem to have taken it to heart, in his own Unit. And like some other senior

officers, he preferred a graduated numerical scale that would have permitted “in

betweens”, that relieved managers of the burden of making clear choices of the kind

required by the 2001 format.

Mr. Campbell confirmed that it was necessary to undertake both a

qualitative and not just a quantitative review of praiseworthy expressions found in the

annual evaluations or personnel documentation; because, for example, (and quite apart

from the biases or reservations that the bargaining unit evaluator brought to the process),

it was not uncommon to see high praise for an officer newly assigned to a project, but no

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praise all for the same initiative, from a more seasoned officer, who would be expected to

do such things as a matter of course. He brought that perspective to his file review; and in

this sense, the annual evaluations “do not speak for themselves”. It requires an

experienced reader to ferret out their significance, and to compare that information with

other aspects of the record and other assessments of an officer’s performance.

Similarly, Mr. Campbell said that he expected that "superior" officers

would fill the void caused by any departing “exceptionals”, so that the superiors would

likely improve, would take a chance to show leadership, and would "shine", so that they

could easily be regarded as "exceptional" themselves in the next promotional round.

What they did in that revised setting was not indicative how they might have been viewed

– or should have been viewed - on the different field, a year or two before. Campbell

thought that a “superior” in 2001, could easily be viewed as “exceptional” later on,

without there being any inconsistency or flaw in the evaluation in either promotional

cycle.

*

Tavener and Campbell were both involved in the 1999 promotion process;

but in 2001, Campbell played a much more active role, gathering information and sorting

through the documentation in the candidates’ personnel files. Mr. Campbell did not

always have a firm recollection of all of the steps that he took, or the persons with whom

he had spoken, four years earlier; but I am satisfied that what follows, fairly describes

what he did.

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Mr. Campbell reviewed the situation of the candidates in light of what he

already knew about them, and what could be discovered from a review of the personnel

files and related documents, and from discussing their situation with others (recall that for

two of the grievors, he had already been through a similar promotion-related exercise, in

1999). He also went to the immediate supervisor and the Staff/Detective Sergeants, to get

their "input" on each candidate’s performance and potential.

However, Mr. Campbell was careful to a note that, from his perspective,

what he was getting from these supervisors was "input" only. He thought that

management was better placed to make the promotion decision; and, in any case it was

Tavener who had the final say - and who had to sign off on the score at the local level.

Campbell did not necessarily accept the supervisors’ assessments; and of

course, he had his own direct experience and knowledge of the individuals in question,

together with other candidates . He said that he found that it was best to ask the

supervisors "whether they wanted to have that officer assigned to work with them",

because if he adopted that approach, he was more likely to get an honest answer about the

officer in question.

Mr. Campbell looked at the annual evaluations with a skeptical eye,

because he expected everyone in SIS to be at least superior; so that what he was looking

for was across-the-board, uniform excellence - indications that the candidate was the “de

facto team leader, even if he “did not have that title”.

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Mr. Campbell testified that it took several days for him to make these

inquiries about the candidates, and to review their situation with the relevant supervisors;

and in the case of the grievors, he recalls talking to their Detective Sergeant on a number

of occasions. He also talked to supervisors at the Sergeant level; and he said that he took

a long time reviewing the situation of each candidate - it was not just "10 or 15 minutes".

And in the end, that information was blended with what he already knew about each

employee, to produce a profile and a relative ranking that he could recommend to

Tavener, for the purpose of the discussion.

*

However, notwithstanding the clear caution in the Rules to be sparing

about giving out “exceptional ratings”, and notwithstanding the concerns about "mark

inflation" that had plagued the 1999 process, Mr. Campbell still thought that he should

give "his people" the “benefit of doubt”, because SIS was an elite unit, and because

Campbell thought that it was appropriate to support candidates from your own unit (just

as supervisors supported the candidates in their own platoon). Accordingly, Campbell

concedes that he put into the highest category some individuals who were "not quite

there", as he put it.

He testified that "I thought my people were better"; so that he marked

them easier than he might otherwise have done.

According to Campbell, he and Tavener had a long meeting to discuss the

candidates (two to four hours), in order to decide how to rank these individuals in light of

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the 2001 system and concerns. There were lots of clear cases; but they also discussed

how to deal with candidates who were “close”, and who was truly “exceptional”, and

whether to give particular individuals the “benefit of the doubt”, and whether they were

being "fair" to the "real 15’s". [In this regard, it might be noted that, there were a number

of individuals who were rated more highly than the grievors; these individuals formed a

point of comparison for Tavener and Campbell; and as in the case of Division 41, the

Employer has put before me information – the “green books” - about a couple of these

officers, for comparison purposes, while the Association has tendered no similar

evidence].

Tavener’s evidence parallels that of Campbell. He (Tavener) was most

familiar with the officers at the top of the scale (“the leading lights”), and less familiar

with others. Nevertheless, each candidate was discussed, individually, in light of what

was known about them; then the two reached consensus on where the candidate should be

put. In that process, it is clear that Tavener was not inclined to disagree with Campbell's

assessment; but it was Tavener’s decision nonetheless.

Tavener testified that there were lots of “no brainers” - officers whose

positioning was evident without much discussion. But in so far as there were a few

ambiguous ones ("in the middle" or "on the cusp", in Tavener’s words), there was a

careful consideration of what to do with them. And ultimately, Campbell’s “easy marking

approach” prevailed.

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*

Tavener thought that it was acceptable to group with the “exceptionals”,

some officers who were, as he put it, “high superiors” – not really “exceptional”.

*

But of course, that was not the end of the matter. Because under the 2001

Rules, the Unit Commander’s “recommendations" still had to be submitted to the Staff

Superintendent, in charge of SIS (Rocky Cleveland, at that time); and as it turned out,

Mr. Cleveland (like Bill Blair, in the units for which Mr. Blair was responsible), was

unwilling to rubberstamp the Unit Commander’s recommendation, without an assurance

that the grade distribution would withstand objective scrutiny. Cleveland wanted to make

sure that the categories and the caveat were being properly implemented – particularly in

light of past problems, and the resulting changes that had been implemented in 2001.

*

The 2001 system was designed to require choices, and the definitions were

intended reserve the highest score for the few truly exceptional candidates; and it is

evident from Tavener’s description of the 1 1/2 hour meeting with Cleveland, that

Cleveland was concerned that the letter and the spirit of the new scheme were not being

followed in what Tavener and Campbell had done. Moreover, it appears to me that

Cleveland was right, given the frank admission by both Cleveland and Tavener that they

were inclined to boost candidates into the "exceptional" range, even if they were “not

really there” (their words).

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Tavener testified that he and Cleveland reviewed the applications and the

scores, because before Staff Superintendent Cleveland was prepared to "sign off" on

those scores Cleveland wanted to hear from Tavener what he had done and considered.

Cleveland wanted to assure himself, that the Unit Commander’s recommendations were

sustainable, consistent, and justifiable. Cleveland did not say that there were too many

15’s; but he did demand specific justifications, dwelling more on some candidates than

others - which is not surprising given how the grievors were scored, in comparison with

the admittedly clear cases.

Cleveland wanted the distribution to be internally consistent, with

comparable and justifiable differentiated plateaus. And in the result, Tavener conceded

that some of the marks could not be justified, and that they had to be revised in order to

bring the spectrum into proper proportion.

To be clear: this is not Cleveland substituting his view for that of Tavener

and Campbell. Rather, it is Cleveland testing the decision-making process and the

information submitted, against the template of the Rules, and what they were designed to

achieve and the information available. Cleveland wanted to ensure congruence and

internal consistency, and to detect the very kind of "biases" that were revealed in this

case. He was requiring Tavener to explain and justify his “recommendations”.

I see nothing wrong with such scrutiny. Because, before “signing off” the

Staff Superintendent was entitled to assure himself that the process have been done

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properly, that the ranking was consistent, and that the result could be justified under

scrutiny. He was entitled to seek such justification from the Unit Commander for what he

had done. And in so doing, I see no departure from the Rules, nor any breach of Article

3.01.

*

Ms. Burke recalls that in a later meeting with Mr. Tavener, to protest of

the change in grade, Tavener said that he had "fought for” her mark, in the meeting with

Cleveland. I accept her recollection in this regard. But I doubt that it was much of the

“fight”; because, objectively, neither Cleveland nor Tavener thought they could justify

putting the grievors into the same cluster as the clear 15’s (e.g. the green books in this

proceeding). And neither Cleveland, nor Tavener, thought they could justify as

“exceptional”, officers who were not incontestably “exceptional”.

*

Once again, it was regrettable that some supervisors breached the grading

protocol, and revealed the recommended marks before they were finalized. But I do not

think that anything turns on this, however irritating it may have been for the three

grievors whose marks were changed (Burke, Josefobic and Christie).

*

Mr. Campbell testified that he was not surprised by the change in marks in

respect of these candidates - whom he had always considered "not quite there". He

accepted it as result which, from his perspective, simply meant that the system was

working. The recommendation from the Unit Commander had been considered at the

higher level, and in light of how other officers had been rated in the Unit, relatively

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speaking; and a more modest score was considered to be appropriate and was therefore

substituted. Tavener could not justify all of his “exceptionals”, so some of them were

changed. The grievors weren’t as good as the obvious high performers (the no-brainer

“15’s”); and in his conversation with Cleveland he acknowledged that.

Campbell said that he could not disagree with that outcome – although he

noted that he would have had a different view if there had been a disagreement about the

clear exceptionals (the green books). However, Campbell said that he could not quarrel

with a result for the grievors, when the local assessment was problematic from the start.

*

For the reasons already expressed in Part XI of this Award, I do not see

any fundamental error in that process of review and justification, nor any breach of

Article 3.01.

*

But what about the scores themselves - as opposed to the process?

*

Once again, the Employer has put in "green books" of two exceptional

officers with whom the grievors could be compared, which I can weigh, together, in this

case, with the considered opinion of the two experienced senior officers who were

familiar with the grievors and their work – and who, it is clear, were acting in good faith,

and were more than prepared (too prepared, as it turned out) to give the candidates the

“benefit of the doubt”. And once again, there is no similar evidence from the Association,

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or evidence from Staff Sergeants or others, which might convincingly call into question

the judgment made by these experienced officers.

Thus, while it is interesting that a Staff Sergeant or Sergeant may have

expressed views in some past performance evaluation, that were favorable to the

grievors’ candidacy, it is sufficient to say, that I did not hear from them in this case, so

that I could assess the basis for any disagreement; and I did hear lots of evidence about

why such evaluations had to be viewed with caution.

*

With respect to the situation of officers Burke, Christie, and Josfobic, I do

not think that the evidence before me persuasively demonstrates that they were clearly

"exceptional"; and in my opinion, it certainly does not demonstrate that the assessment

that they were “superior” (but not “exceptional”) was "unreasonable" or “wrong”, or (per

Article 3.01) that it was reached "without reasonable cause". I do not think that the

Association has met the onus of showing any breach of Article 3.01.

***

As for Officer Perry, it is clear that he is a highly accomplished computer

analyst with valuable and specific computer-based skills. According to Don Campbell,

that is what brought him to SIS in the first place – and without the kind of competition

that is typically required for aspiring Constables, who want to work in SIS.

Tavener testified that he knew Perry better than the other grievors because

of his special skills, rather than his distinguished performance; and because of his work

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on child pornography questions; and because of some discussions about the need for a

bigger computer budget. Campbell testified that he had directly supervised Perry, and that

he had some personal concerns about his suitability for being a Sergeant – at least in

2001. Moreover, Parry’s personnel record was held to be less than stellar, (not effectively

contradicted by the Association) for someone in SIS, and in comparison with the high

performers in SIS. But he was still very good at his job, so while not clearly “superior”,

(let alone “exceptional”), he was given a “superior” rating.

*

I do not think that the evidence before me demonstrates any fundamental

error in the way that Perry was rated; or, to return again to the words of Article 3.01, that

there was no “reasonable cause” for the conclusion of Campbell and Tavener that Perry

was "superior" but not "exceptional" – which, interestingly enough, is the same

conclusion that Unit Commander Tony Warr reached some months later, in the next

promotion cycle, and for much the same reason.

*

Mr Warr testified that he had taken over the Unit not long before the

second promotional round, and that in preparing himself for the challenges of his new

position, he had reviewed the personnel records of the officers under his command. He

reviewed them again, for the purposes of the promotion process in which he was

engaged.

Mr. Warr testified that despite his relatively recent arrival, he had spent a

lot of time with the small group of employees that included Perry, because there were a

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number of funding questions and equipment purchases that had to be addressed; and in

conjunction with that enquiry, Mr. Warr got to know these individuals, and what they

were doing. He also said that the Detective Sergeant, (Mc Cheyne) worked fairly closely

as well, because it was technical skill rather than rank which mattered for this work group

- who, according to Warr, were more like “partners” in a common endeavor.

In preparation for the 2001 promotional scoring Detective Sergeants were

advised ahead of time that there would be meeting for the purpose of ranking the

candidates, and they were told to consult the other supervisors about those candidates. All

of the Detective Sergeants attended the meeting, and all of them participated, with one

exception - a newcomer who declined to comment on people he didn't know.

Moreover, (according to Warr) with the one exception, the Detective

Sergeants knew the candidates fairly well because of their day-to-day work relationships,

and Warr believed that he knew these individuals as well. Warr said that he paid

particular attention to the opinion of the Detective Sergeant closest to the unit or subunit

from which the candidate came – nevertheless, factoring in the inclination (Warr said it

was “human nature”) of that supervisor to support (“push for”) the candidate from his

work group. The meeting lasted a couple of hours, and in the end, there was a broad

consensus about how the candidates should be ranked.

In Mr. Warr’s opinion (according to Warr: shared by Detective Sergeant

McCheyne), Perry was capable, but not exceptional, and thus warranted the category

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“superior” = 10 points. He did not stand out in the group - which according to Mr. Warr,

was what the exceptional rating was for. It was the relative ranking – the relationship to

others – that set the exceptional officers apart, and which warranted an unqualified

endorsement by the Unit Commander. But Warr was not prepared to give that

endorsement to Parry. Nor did the Association call any of the bargaining unit members

who participated in the discussions, to suggest that Warr was wrong for some reason.

Warr testified that, for Perry, he had not seen concrete evidence which

would warrant the higher rating; and he later told Perry that he should consider a transfer

to another setting, where he could demonstrate the kind of leadership that might later

support a promotion. There was a similar discussion with another employee in Perry's

group, who took Warr’s advice, and did move on to something different, in order to

broaden his experience. Superior performance over a narrow range, was not as useful for

promotion purposes, as exemplary performance, in a number of areas.

*

It is evident from the material before me (and I accept Mr. Warr’s

testimony on this point), that a large part of the reason for Perry’s “superior” (but not

“exceptional”) score, was the narrowness of his experience, within the constellation of

officers within the Unit at that time - which is not to minimize the importance of the work

that Perry was then doing. Moreover, Mr. Warr was not unsympathetic to Perry’s quest

for promotion - which is why he made some suggestions about how Perry could go about

improving his chances of promotion, next time.

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Perry complains that he was "held back" precisely because of the highly

specialized nature and importance of what he was doing - which, he suggests, made the

Unit Commanders reticent about giving him a higher rating, lest he be promoted, and

therefore have to leave the Unit (in accordance with the policy of moving the newly

promoted officers in the new positions away from where they have been working before).

However, having heard the Unit Commanders in question, I do not think that Perry’s

suspicion is supported by the evidence.

Mr. Warr testified, credibly, that he would not and did not hold Perry back

for that reason; that there were others that could have filled in; and that in any event, if

Perry were filling a critical need, Warr would simply apply to keep him on, as Warr

testified, he had done before. Warr denied that “losing Perry” had anything to do with his

evaluation. Tavener testified (and I accept) that this was not an issue.

It also seems to me that Warr’s evidence is bolstered by what later

happened to Perry, in 2003, when he did get an “exceptional rating”.

Warr explained that despite his suggestion, Perry remained in the unit. But

his work setting changed a little. There was a minor reorganization of the unit, more

employees arrived, new equipment was made available, and Perry had an opportunity to

train, lead, instruct others; and in consequence, there was concrete evidence of the kind

which Warr was looking for, and had not been there before.

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*

The situation was different; and Perry reaped the benefit of the difference

in 2003.

*

In the result, in 2001 all three senior and experienced officers rated Perry

“a 10” – “superior” but not “exceptional”; and no one other than Perry himself suggests

otherwise. Nor am I persuaded that the evidence before me persuasively points to a

contrary conclusion (although it is well to remember that “superior” means someone

performing above expectations, with a high potential for success in the next rank –

“superior” is a good rating).

In my view, there is no breach of Article 3.01 in Perry’s case either: all

three senior officers had “reasonable cause” for their conclusion, and I do not think the

evidence establishes otherwise.

The grievances from SIS are therefore dismissed.

Division 52 – Officers Boyce, Dunkley, Neisen and Greenaway

The evidence of what happened at Division 52 comes (primarily) from the

grievors and Staff Sergeant Smallbone, on the one hand; and from Aiden Maher and Bill

Blair on the other. The grievors and Smallbone were called by the Association; while

Maher and Blair were called by the Employer.

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Aiden Maher was the Unit Commander who conducted the promotional

evaluation at Division 52. Staff Sergeant Smallbone participated in that evaluation

process at the local level. Mr. Blair was the Staff Superintendent who oversaw the

process, and who, (along with Maher), later revised some of the marks.

None of these witnesses had a perfect recollection of the details from

2001. Indeed, by the time he gave his evidence Mr. Maher had been retired for almost

two years. And as I have already mentioned: this degradation of the evidence makes it

more difficult for me to assess what actually happened in 2001 - and how.

*** Division 52 is the Employer’s largest and most diverse

Division (with more than three hundred constables), and as such, it has the most fluid and

complex matrix of staffing and supervisory relationships. There is the usual distinction

between "investigative" (Detective) and "uniform" components of the work force; but

because Division 52 is a training ground there is more than the usual turnover at all levels

-- with officers coming and going on roughly six-month intervals. Moreover the rotating

and overlapping shifts (day shift/night shift), merely complicate the picture, and the

allocation of Sergeants, Staff Sergeants, Detectives, and Detective Sergeants, is far more

complicated than it would be in a smaller Division or unit.

There is turnover and interchange of supervisory personnel, and constables

rotate as well; and the Unit Commander cannot realistically be familiar with everyone in

this large Division. There is also likely to be quite a number of “immediate supervisors”,

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who could conceivably have something to say about how an aspiring Constable is doing.

Moreover, because of shift overlaps, and handovers, and intersecting team efforts, it is

quite likely that supervisors other than the immediate supervisor (for a time), will also

come to know something about a candidate and his/her work performance. And of course

it is the job of the Staff Sergeant and the Detective Sergeant to know what is going on in

the work group for which they are ostensibly responsible.

These bargaining unit supervisors (at both levels) are supposed to know

what is going on with the employees for whom they are responsible, and will also, in the

ordinary course of their work, come to know something about what is going on in other

work groups with whom they cooperate or interact. This is just an example of the

institutional knowledge to which I referred earlier: employees who work together will

come to know one another’s strengths and weaknesses; but it was confirmed by the

testimony as well.

*

Mr. Maher testified that because of the interaction of the platoons, the

shared responsibilities, and the shift rotation, a typical Constable seeking promotion

would have a number of "direct supervisors" who might have something "relevant" to say

about his performance -- although some of those supervisors might not have had much

time with the candidate, because of their own mobility. The degrees of knowledge would

be different. Detective Sergeant Smallbone (a supervisor and member of the bargaining

unit, called by the Association) agreed on that point.

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In 2001 there were roughly 70 candidates seeking promotion from

Division 52 - roughly 25% of the total complement of Constables; and Counsel for the

Employer estimated that there were at least 60 sergeants who would have to be consulted

if their "input" was regarded as critically necessary. For present purposes it is

unnecessary to get into the details - which in any event, are difficult to follow without an

organization chart and a glossary of police acronyms. It suffices to say that in the course

of a year or two a Constable in Division 52 could have more than one direct supervisor,

and those supervisors themselves are mobile. So consulting the direct supervisor(s) of 70

candidates, in a face to face meeting, would be an enormous and time-consuming task for

the Unit Commander - at least if he was expected to do anything else for the period

during which the promotional process was ongoing. And having them go over the records

together and deliberate, like a tribunal, would also be immensely time consuming (as it

has been in 1999).

Accordingly, it is in Division 52 that there is the greatest potential

collision between the individual, candidate-centered kind of discussions that the

Association demands, and the general responsibility which the Unit Commander has, to

attend to the other business of the Unit. It is at Division 52 that there is the most obvious

operational conflict between what the Association says must be done in every single case,

and the Unit Commander’s other responsibilities (the organizational balancing and “value

added” calculus to which Mr. Grant referred in his testimony).

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Or put differently: it is at Division 52 where there would be the most

serious impact if Article 3.01 compels the kind of process and significant expenditure of

resources, that the Association claims has to happen, in order to sort the candidates into

the three categories: competent, superior, and exceptional [5-10-15 ÷ 2 marks]; and to

distinguish between those who are superior and those who are exceptional.

*

Unit Commander Maher did not make any effort to speak directly to each

of the many immediate supervisors - the Sergeants or Detectives, who worked most

immediately with the candidate. He testified that there were as many as a dozen who

might have something to say about each of the 70 candidates. But he did not try to get

this "direct input" from the dozens of the candidates’ supervisory peers in this way.

Instead, he personally reviewed every candidate’s personnel file, in order to familiarize

himself with each candidate’s background (and consequently, “the full field of

competitors”), and so he could fill in the “mechanical scores” attached to years of service,

having particular kinds of experience, etc. Then he convened a meeting of the Staff

Sergeants and Detective Sergeants, who were responsible for supervising the Detectives

and Sergeants, as well as the Constables belonging to the various platoons and

workgroups with which those Staff/Detective Sergeants were associated.

Maher reasoned that if these "intermediate bargaining unit supervisors"

(i.e. still in the bargaining unit, but a step up from the Sergeant or Detective), were

properly primed, they could provide sufficient information to do the category ranking that

was required by the 2001 Rules. And in his opinion, the way to get such “input” was to

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hold a meeting of the Staff Sergeants and Detective Sergeants, where they would be

invited to rate the candidates – to engage in the process of relative ranking and

comparison, that is called for by the definitions.

Maher prepared scoring sheets with the names of the candidates and the

possible ratings, and he gave them out to the Staff Sergeants and Detective Sergeants

about a week before the meeting. Those supervisors were aware of the definitions that

had to be applied, and they were also aware of the other background information that was

part of the Routine Order. And there is really no dispute that everyone was sensitized to

the ongoing promotional process, and how important it was for employees. No one

minimizes the importance of it all – least of all these other members of the bargaining

unit, like the Staff Sergeants and Detective Sergeants. And there is no evidence to suggest

that they did not take their task seriously – giving careful consideration to their Constable

co-workers.

Maher expected that they would discuss the candidates with the immediate

supervisors (Sergeants, Detectives), and he thinks that he would have told them to do so.

But years later, he could not clearly recall giving such explicit instruction – even though

that is what he expected to happen. He did make it clear that there would be a meeting to

rank the candidates and that the participants would be expected to meaningfully

participate in that process. That is why the candidate list and the scoring sheet were given

out a week in advance. And I think it is likely that he also told the Staff Sergeants and

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Detective Sergeants, to properly inform themselves, in preparation for the task that he

had set from them.

Staff Sergeant Smallbone was called by the Association, in order to give

evidence about what had happened in Division 52. However Smallbone’s memory was

very hazy, and by his own admission, quite unreliable. He made it clear that, at this late

date, (many months after the meetings in question) he was just guessing at what he

thought, or could remember, had happened back in 2001.

The problem here is the one noted in Part VI of this Award: the entirely

understandable failure of witnesses to recall administrative events in the distant past,

which were not considered to be particularly significant at the time.

Mr. Smallbone was aware of the three category ranking system and the

definitions that were supposed to be applied - although he himself was not inclined to use

them. He was also, he said, very familiar with the candidates and their immediate

supervisors, with whom he was in daily contact and with whom he interacted in the

ordinary course of his work. He also knew about the meeting to score the candidates, and

he was not uncomfortable participating that process.

Accordingly, let me pause here to note that, despite the Association’s

“structuralist” argument reproduced above, Staff Sergeant Smallbone did not seem to

have any problem with the process that Maher set in place; and he did not express any

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discomfort or lack of familiarity with the candidates whom he was ranking; nor did he

disagree with any of the rankings in which he had participated. As the Staff Sergeant

responsible for certain work groups, he thought that he knew his own people, and he also

knew quite a number of the other candidates – at least well enough to express an opinion

on how they stacked up, against the competition. And where he had such discomfort, he

simply did not express an opinion – as Maher had advised the Staff/Detective Sergeants

to do.

It is unclear whether or the extent to which Staff Sergeant Smallbone

spoke to the immediate supervisors before expressing his own opinion. In cross-

examination he said that he did speak to them, but could not recall any specific

instruction to do so. In re-examination he said that he could not recall speaking to many

immediate supervisors, then upon reflection indicated that he had spoken to at least some

of them. And as noted: he frankly admitted his memory was very weak. But he had no

doubt whatsoever that, at the time, he was in a position to give informed input about the

candidates for whom he was responsible; and he was also comfortable about giving an

opinion on other candidates with whom he had contact or knowledge through interactions

at work. And interestingly, grievor Boyce was not uncomfortable with that process either

– if only Mr. Blair had not intervened later on, and reduced some of the marks, including

Boyce’s.

Maher testified that the meeting was convened, as anticipated, and that 9

of the 10 Staff Sergeants and Detective Sergeants participated in the meeting. According

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to Maher, the employee personnel records were also at hand in case the meeting

participants needed to consult them. However Maher said that he expected the

Staff/Detective Sergeants to be familiar with those files for the persons under their

direction, because they would have reviewed them, or contributed or signed off on the

documentation that was added to the file, from time to time (a proposition which was not

challenged on the evidence before me). He expected them to know what was in the files;

and as noted, he had reviewed them himself.

With the scoring sheets in hand, the meeting participants were invited to

consider the candidates and the “vote” on the appropriate category (competent, superior,

exceptional), for those officers with whom they were familiar enough, to express an

opinion. The meeting participants were aware of the definitions, but were told that if they

did not know the candidate well enough to express an opinion, they should not vote. And

an examination of the score sheets that were filed in evidence, shows that in a number of

cases, one or more Staff Sergeants/Detective Sergeants, chose not to express an opinion.

Maher trusted his subordinates not to express an opinion if they did not

feel comfortable doing so - which seems to been the case in some instances. And apart

from Smallbone, who remembered very little, there is no evidence to suggest that those

who voted were not in a position to do so – that they did not know the candidate well

enough to express an opinion. Nor, of course, did they or Smallbone, or anyone else

except the grievors themselves (and Mr. Blair – see below) contradict the rankings that

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resulted from that meeting. And as in the other Divisions, the Association pointed to no

“exceptional” to whom any of the grievors could be objectively compared.

The assessment meeting unfolded as Maher had expected. As in the other

Divisions, there were some clear cases where the participants were of the same general

view; but where there was a difference of opinion, there was a discussion and a reference

to the records to inform the debate.

Maher testified that if there was a dominant view he was inclined to go

with that view -- which is what produced "exceptional" ratings for Officers Boyce and

Greenaway, and ratings of superior for Dunkley and Neisen, in the first cycle in 2001.

Maher was, at the time at least, satisfied that those scores accurately reflected the relative

ranking of these grievors. Indeed, it appears to me, looking at the collected opinions of

the Staff Sergeants, that Maher was inclined to be a “pretty easy marker”; because even if

there was no preponderance of opinion in favor of an “exceptional rating”, if some of the

Staff Sergeants thought that this was appropriate, that was the category that he went with.

It is clear from the evidence, though, that there was more to it that simply

accepting what the Staff/Detective Sergeants had to say – especially, if there was limited

information, or little agreement. For example, Officer Bennett was a recent transferee

from Division 41, who was not known very well – which explains why his ratings were:

1 superior and 1 exceptional, and 7 “don’t knows”. Thus, in his case, Maher followed up

with the senior officers in Division 41, and based upon what he learned, assessed Bennett

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as “exceptional”. As Maher put it “I was impressed by what I heard”. (And the

Association makes no assertion that, Bennett’s grading was wrong).

* But as in SIS, that was not the end of the matter. The Unit

Commander's assessment, at that stage, was still just a "recommendation" which had to be

reviewed and approved by the Staff Superintendent - in this case, Bill Blair. And as in the

case of SIS, Mr. Blair was not content to simply rubberstamp what the Unit Commander

had done.

Indeed, I think it is fair to say that Mr. Blair was critical (or at least

skeptical) of Maher, for not exercising the kind of independent judgment that the Unit

Commander was expected to bring to the decision-making process in 2001. Because in

2001, unlike 1999, it was the Unit Commander who was expected to make a

determination and not a committee of bargaining unit supervisors - however helpful those

supervisors might be in informing the decision. And from Blair’s perspective, he was

concerned that Maher had simply gone with what the Staff Sergeants had suggested –

even when their suggestions were not unanimous or preponderant (i.e. where their views

did not unequivocally, or without reservations, support the “exceptional” rating that was

being assigned).

Staff Superintendent/Acting Chief Blair (as he then was), testified (as all

of the other senior managers did) that the Unit Commander was the person best situated

to make an independent decision on a candidate’s caliber; and like the other senior

managers, Blair was wary of putting too much weight on the supervisors’ evaluations or

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views. For example, in his opinion, the Sergeant or Staff Sergeant was not necessarily in

the best position to determine whether a candidate would be able to discipline other

workers, or would be able to motivate or develop new talent, or would otherwise have the

required skill set for an elevation and rank; and the immediate supervisor would certainly

not have either the global or relative perspective necessary to make the best decision.

Blair observed that he has a reviewed hundreds of annual performance evaluations over

the years, and that generally speaking, they tend to be overblown: “good/fair” actually

means "needs improvement"; and "superior" usually means above average (but not

exceptional). They were not a good tool to determine who was “exceptional” for

promotion purposes.

Mr. Blair testified that in light of the change in direction in 2001, there

was a discussion at the Staff Superintendent level about the need for high-level

organizational oversight, to ensure and encourage, a consistent understanding of the

Employer's expectations (set out in the category definitions), as well as uniformity and

fairness across Divisions. Blair did not think that it was practical or necessary for each

Unit Commander to go about the inquiry in the same way; and s/he did not have to speak

to the immediate bargaining unit supervisor – the candidate’s co-worker –either. The Unit

Commander could tailor his/her approach, to the setting in which s/he worked – including

his/her personal knowledge of the candidate, or what s/he drew from the documentation.

But it was necessary to foster adherence to the common definitions and make sure that

the rating was consistent with the overall record; and in order to facilitate that outcome,

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Blair took an active role in reviewing what "his" Unit commanders had

done – essentially, duplicating what he expected the Unit Commander to do, then going

over it with them, to see whether they had done what was required of them.

Mr. Blair testified that there were no arithmetic quotas applied; and that he

was not troubled if there was a very high percentage of "exceptional" ratings in a

particular Division. But he was troubled if the Unit Commander had simply endorsed

some supervisory consensus, without exercising his own independent judgment, and

without making sure that such evaluation was consistent with the other material in the file

- which was Blair’s concern with what Maher had done, at Division 52. And Blair was

also troubled if the Unit Commander could not defend what he did, and could not explain

and justify the relative rankings that had been distributed, in light of the record. For like

all of the senior officers who gave evidence in these proceedings, Blair was intent on

being “fair” to the “real 15’s” – so as not to deprive them of the value of their

achievement by unduly diluting their numbers ( a quota-like concern, without the quota).

Nor did he want everyone clustered at the top, as had happened in 1999.

Blair testified that in preparation for his own inquiry of "his" Unit

Commanders, he spent several days and evenings reviewing all of the personnel files of

the candidates; and he also spent a number of hours at each Division, with the Division

Commander (and sometimes his staff), in order to ensure that the process was unfolding

properly. He said that he spent as many as 30 to 40 hours depending on the size of the

unit.

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What was important for Blair was method and consistency with the overall

record, and not just the current opinions of current supervisors. Moreover, with that in

mind, he went through the files and the proposed scoring with Maher, to make sure that

the ranking was justified – especially in the case of the “exceptionals”; and that, all things

considered, they really were extraordinary, and outstanding, and, relatively speaking,

they stood out from all of the other candidates. And also that this was sustainable and

documented from an objective point of view.

In some cases, the situation was clear and didn't take much time; but in

others, or if Maher was not personally familiar with the candidate, they went through the

file to make sure that the proposed result was justified. As Blair described it, some were

easier and some were harder; but what was important was that the Unit Commander

applied an independent judgment to the array of materials available, and could justify

what he did. And in Maher’s case, Blair was concerned that this had not happened until

he himself intervened, because (in Blair’s opinion) Maher had not (seemingly) sought to

buttress or square the local supervisory views with other objective materials – or his own

independent judgment.

For the most part, there were no changes to the scoring. However in five

instances, (including two of the grievors: Greenaway and Boyce), there was a discussion

in order to reach a common understanding of the meaning of the "labels", then a revision

of the mark to reflect the consensus. Then Blair initialed the change to meet any concerns

about “transparency”.

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Blair testified that he followed the same process in the other

Units/Divisions for which he was responsible; and that in some cases they raised marks

as well as lowered them. He said that in each case his approach was the same: he said, to

the Unit Commander (in effect) “let’s see if the available evidence supports that result

from the additional documents and information that we know about the candidate…

including your own personal knowledge and what the supervisors have had to say.”

Blair testified that when he took that approach, the “best of the best” stood

out; and where the results seemed debatable, or "marginal" they looked for clear evidence

of exceptionality. And the discussion about the “debatables” resulted in a few changes.

As it happened, Blair knew Officer Greenaway - having worked with her

for about six months, the previous year. However, the change in her score was triggered

not by personal knowledge, but by the process of review described above. Because for

Officers Boyce and Greenaway, there were simply insufficient indications of exceptional

leadership, or initiative, or commendations, or other documentation or comments to

support that they were so significantly above average or remarkable, or noteworthy

(“…well beyond others..”) to be rated "exceptional". They were above average. They

were superior officers. But they were not exceptional.

Blair did not find it unusual that in the next round Boyce and Dunkley,

might have "moved up" into an “exceptional” rating; because it was not unusual for that

to happen, once the backlog of high achievers had passed on, and the employees were

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able to demonstrate their own skills relative to others. Once the cohort for comparison

changes, the rating can change as well.

With respect to Officer Dunkley, Mr. Maher testified that he had an

additional course, a bit more experience and direct supervision of rookies, some

additional fraud squad experience and two further Unit Commander awards, as well as a

more enthusiastic support him from his supervisors; so that in the circumstances there is

nothing surprising about his somewhat better ranking in the next promotional round.

Boyce also scored better in the second round. Nor was it a surprise that Ms. Greenaway

scored better, later on, having acquired additional experience in the meantime.

Blair testified that in the next iteration, he also engaged in a process of

review, but having devoted the time earlier on, it was unnecessary to do so again, in the

same detail. He had impressed upon “his” Unit Commanders what they were supposed to

do, and he was satisfied that they would follow instructions.

*** Viewed cumulatively and including the corrective review

undertaken by Mr. Blair, I am not persuaded that there was any breach of Article 3.01 in

the process adopted in Division 52, having regard to the serious organizational and

resource constraints that pertain to that Unit – although if the process had stopped at Mr.

Maher and a committee of Staff Sergeants, there might have been some concern about the

thoroughness of the review. However, in my opinion, the involvement of Mr. Blair

corrected any want of attention that prevailed at the Unit level.

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*** As in the case of the other Divisions, the Employer

provided “green books” of exceptional officers with whom the grievors could be

compared, and the Association, pointed to no “exceptional” comparator – no one for

whom the grievors could say “I am at least as good as s/he is, but I only rated superior”.

Officer Dunkley testified that he thought that he was “above average”; and even if that is

true, that would not warrant the “exceptional rating”.

The Staff Sergeant’s actual ability to rate the candidates was not seriously

(or at least not successfully - in my opinion) challenged in Division 52; and Mr.

Smallbone himself had no doubt that he knew the people and could express an informed

opinion. That opinion was scarcely challenged by the Association who had called him as

a witness. Certainly neither he nor any other “supervisor” challenged the scores, let alone

justified the challenge (compare Officer Sondergaard’s situation, below).

And whatever their reliability, what do those opinions indicate? For Mr.

Neizen there were 2 x 10’s, 1 x 15, 1 x 5, and five “no opinion”. This is hardly a ringing

endorsement from bargaining unit supervisors; and I heard from no immediate supervisor

(or the person who gave him a 15 either). Similarly, Mr. Dunkley, who got 6 x 10’s and

only 2 x 15’s. Boyce got 2 x 15 and 2 x 10; and his case probably indicates the upward

bias that seems to have been present here, because he ended up with a 15, until Blair put

the whole thing in perspective. Ms. Greenaway looked rather better in the Staff

Sergeant’s opinion (4 x15, 2 x 10 and 1 x 5), but, curiously, in the later round her position

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was actually seen by her supervisory co-workers to be “worse” - 6 x 10’s and only 2 x

15’s – which perhaps shows some of the difficulties of relying only on what supervisors

have to say, or may simply be a reflection of Mr. Blair’s injunction not too over-rate

candidates. It is difficult to say, because I heard nothing from these or her immediate

supervisors. (By contrast, and by way of example: Officer Troup, one of the “green book

exceptionals”, received from the Staff/Detective Sergeants 8 x15’s and one 10 – a more

resounding show of support).

The point is: on the basis of the evidence before me, I am not persuaded

that there was any contractual breach in the way that the process unfolded in Division 52,

and I do not think that I can say, with any confidence, that Maher and Blair were “wrong”

and that the grievors “should have been a 15”.

I do not think the evidence before me puts me in a better position than

they were, or successfully refutes their opinion. They had the complete picture and

concrete comparators, which I do not; and they were able make an informed assessment

of the supporting documentation, which I am not. And, in any case, their view of what

they saw was not plausibly challenged or contradicted, either in cross-examination, or by

means of other information - once it is understood that neither the 1999 promotional

assessment, nor the job evaluations, nor how the candidate scored in different

circumstances later on, determines the “reasonableness” or their relative ranking in 2001.

The grievances from 52 Division are therefore dismissed.

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11 Division – Officer Sondergaard

Sergeant Niels Sondergaard has been a police officer at the TPS since

1977, and a Sergeant since 1988. He applied for the rank of Staff Sergeant in 1999, and

again in 2001. At the time of his 2001 application, Sergeant Sondergaard had been at 11

Division for less than a year, and would therefore not have been particularly well-known

in that Division. He had also spent a relatively short period of time at his former Division.

And as (bad) luck would have it: his most recent performance evaluation was done 16

months before the 2001 application for promotion (probably because he had been moving

around so much). It was not very up to date.

In any event, (and regardless of the reservations with respect to

performance evaluations and the 1999 promotional scoring that I have discussed above),

Sondergaard’s “paper record” seems quite good, and he was evaluated quite favorably in

1999 (scoring 37/38, showing “superior performance”, and generally exceeding the core

competencies of his current, sergeant’s rank). But in the 2001 promotional process, he

was rated simply as “competent”, (a “5”) with sufficient potential for success in the next

rank. And as Sergeants go, that is a relatively low ranking.

Officer Sondergaard claims that he was unfairly and unreasonably

evaluated in 2001 – that he should have been considered exceptional (15) , or at least

superior (10). Moreover, unlike most of the other grievors, Mr. Sondergaard’s claim was

strongly supported by Staff Sergeant Chris Wilson - a 25 year veteran who retired in

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2002, and who had been Sondergaard’s direct supervisor at 14 Division. And, being a

Staff Sergeant himself, Wilson would presumably know what it takes do the job at that

rank – although Wilson would not know the “field” of candidates in 11 Division, where

Sondergaard was located, and thus he would not know how Sondergaard ranked relative

to the “competition” in that Division or elsewhere (i.e. who had applied in 2001).

Wilson testified that Sondergaard was an excellent supervisor, who was

ripe for promotion, and that he should have been considered an “exceptional” candidate

for promotion in 2001. Wilson also noted that no one from 11 Division, had spoken to

him about Sondergaard - even though he had been Sondergaard’s immediate supervisor

for about a year in 41 Division, and Sondergaard was new to Division 11. And in contrast

to the other grievors, I did not hear from the either the Inspector or the two Staff

Sergeants who completed Sondergaard’s 2001 promotional evaluation in 2001- rating

him “competent”. So I do not know what they took into account, or how they rated

Sondergaard in comparison with others they looked at in 11 Division or elsewhere.

The evidence before me therefore makes out quite a plausible case (un­

rebutted by any evidence from the Employer), that Sondegaard was indeed under-rated in

2001 - perhaps because he was not well known in the Division. I put it that way ­

somewhat speculatively - because there is really no evidence from the Employer to

explain his relatively low evaluation; nor, in this instance, do I have any “exceptional”

officer comparators, from the Employer or from the Association (i.e. I have nothing like

the “green books” that were provided for officers in other Divisions). I do not have an

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“exceptional” candidate for “Staff Sergeant” with whom Sondergaard can be compared,

from 11 Division. So it is difficult to say whether there was merely a "difference of

opinion" about his ranking (as was put to Mr. Wilson in cross-examination); since I did

not hear anyone's "opinion" other than Wilson and Sondergaard himself, and there is no

one else with whom to compare him.

In the result, of all of the Group 2 grievors, I find Officer Sondergaard’s

case to be the most difficult, because the evidence before me suggests that he was under­

rated, and that he should have been ranked higher than just “competent”.

However, it does not seem to be disputed that even if Officer Sondergaard

had been rated "exceptional" , with the accompanying 15 points, (instead of 5), his

examination marks and the other factors in his record were such that he still would not

have scored highly enough to have gone on to the interview stage. For, even with “a 15”

from his Unit Commander, he would still have been dropped from the process for other

reasons.

In other words, even if the result of the Unit Commander’s evaluation was

flawed (as Sondergaard claims it was, and as the evidence suggests it was), there would

still be "reasonable cause" for disengaging him from the 2001 promotion process;

because even with an "exceptional" evaluation (and the extra marks that go with it), his

aggregate score, all things considered, would not have been good enough to warrant

proceeding further in 2001.

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Accordingly, Sondergaard’s claim under Article 3.01 is moot. Because

there was "reasonable cause" for the outcome in his case, regardless of any deficiencies in

the process, and regardless of the quality or “reasonableness” of the judgment of those

who did the Unit Commander’s evaluation. In his case, the apparent flaw was not

operationally significant.

XVI - Conclusion and Remedy

For the foregoing reasons, I find that all of the “Group 1 grievors”

(Pengelly, Marchen, Reid, Forestall) succeed. For these four individuals, I am satisfied

that there was a breach of Article 3.01 of the collective agreement. I am not persuaded

that there was “reasonable cause” to exclude them from the promotion process in 2001.

With respect to the Group 2 grievors, however, I am satisfied that the

grievances should be dismissed.

*

There remains the question of remedy.

*

Prima facie, each of the Group 1 grievors lost the opportunity to

participate in the promotion process in which s/he might have been successful, and the

appropriate remedy (again, prima facie), would be to recreate that opportunity or remedy

that loss. With respect to Officers Pengelly and Marchen, that would entail allowing them

to be locally assessed in the normal way, and to write the examination, and then have

them progress through to the interview stage, or not, in accordance with their

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demonstrated merits, just as if they had not been improperly excluded. Then perhaps (but

only perhaps) it might be necessary to deal with the result if it is apparent that they would

have been successfully promoted years ago. For Officer Pengelly that may involve a

further look at issues of accommodation.

However, Officers Pengelly and Marchen should be put in the position

that they would have been in, had they not been improperly excluded.

The same, prima facie, might be said for Officers Reid and Forestall. They

too were disengaged from the process when they should not have been, so that prima

facie, they too should be put back where they were, and allowed to finish the process

from which they were excluded.

In the case of Officer Forestall, it appears that he would have gone on the

promotional list and (on the evidence that I have) it also appears that he would have been

promoted at some point, because of (what I understand to be) the timing of his removal

and his evident success up to that point; so that, as in the case of the grievor in Toronto

Police Services Board, supra he has a possible claim for damages. For Officer Reid, it is

less clear; but the best remedy for him may still be to give him the chance that he lost,

and then to determine later, if it is necessary, whether compensation of some kind is

appropriate.

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However, I am troubled by the length of time that this case has taken, and

by the real possibility that the passage of time, or changes in circumstances, may effect

the efficacy or shape of the remedy which is now appropriate for these grievors –

whatever might have been the case if their grievances had been considered and decided

individually, and much closer to the events under review.

Furthermore, it is clear that despite my disagreement with the conclusions

reached in the four Group 1 grievances, all of the senior officers involved were acting in

good faith; and it is not without significance that the approach that the Association urges

should have been followed for some of them, was indeed the practice of the Employer up

to 2001 – so that it is clearly “workable”.

Nor is it without significance that the “system” has moved, of its own, in

the direction that the Association urged at the outset of this case.

And Chief Blair, whose evidence I heard at length in these proceedings,

may have a somewhat different view than his predecessors had about these matters – and,

at least, has the advantage of a more intimate knowledge of the litigation, having been

himself, a participant in it.

All of which, suggests to me that before I attempt to make any further or

final determination with respect to remedy, the parties should be given an opportunity to

consider their positions, and an opportunity to try compose whatever differences there are

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______________________________________

between them with respect to the remedy issue – in order to avoid the costs and

uncertainties of further litigation.

Accordingly, I will remain seized to hear further representations with

respect to the “remedy” for the successful Group 1 grievors, in the event that the parties

cannot reach agreement on this matter between themselves.

Dated at Toronto, this 13th day of July, 2007

“R.O. MacDowell”

R.O. MacDowell

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