In the Matter of an Arbitration

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IN THE MATTER OF AN ARBITRATION

BETWEEN:

TORONTO POLICE SERVICES BOARD (the “Employer”)

-AND-

TORONTO POLICE SERVICES ASSOCIATION (the “Union”)

AND IN THE MATTER OF an arbitration of a grievance dated May 13, 2004 concerning the transfer of 14 grievors (Detective-Sergeant Douglas Hutton, Detectives Daniel (Danny) Bell and Detective Brian Berger; and Detective-Constables Everett Elliott, Stanislaw (Stan) Dziemianko, Sean McCutcheon, Peter Stehouwer, Lester (Les) Rosete, Duane Simon, Jeffrey (Jeff) Bangild, Dean Ion, Simon Knott, Roger Mayers and William McCormack, and James Gillespie).

BEFORE: G. T. SURDYKOWSKI – Sole Arbitrator

APPEARANCES:

For the Employer: Michael Hines, Counsel; Wendy Ryzek, Labour Relations Analyst; Staff-Inspector Donald Campbell

For the Union: Barrie Chercover, Counsel.

42 DAYS OF HEARING HELD IN TORONTO OVER 3 YEARS, BEGINNING ON APRIL 13, 2006 AND CONCLUDING ON APRIL 22, 2009.

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AWARD #8

INDEX

I. INTRODUCTION – WHAT THIS CASE IS ABOUT 4

II. COMMENT ON JURISDICTION 7

III. HISTORY OF THE PROCEEDING 8

1V. APPROACH TO THIS AWARD 8

V. BACKGROUND AND FACTS NOT IN DISPUTE 11

VI. THE COLLECTIVE AGREEMENT TRANSFER ISSUE 18

(a) Submissions

(i) Union 19

(ii) Employer 20

(b) Interpretation of Article 3.01 21

(i) The Investigation Begins 26

(ii) Before the Transfer Decision – Gottschalk and Campbell 27

(iii) Operation Bar District Begins; Gottschalk‟s and Campbell Get Involved 33

(iv) The Transfer Decision in Issue 37

(v) The Huey‟s Incident 40

(vi) April 16, 2004 46

(vii) Assessment of the Transfer Decision 50

(viii) Conclusions 70

VII. BREACH OF SETTLEMENT ISSUE

(a) Facts 72 3

(b) Determination 76

VIII. DEFAMATION

(a) The Parties‟ Positions 79

(b) Comment 79

(d) Irrelevancies 81

(e) Fantino‟s Explanation 81

(f) The Element of Publication 83

(g) Do the Statements Complained of Relate to the Grievors? 83

(h) Were the Statements Complained of Defamatory? 85

(i) The Employers‟ Defences 89

(j) Assessment of the Employer‟s Defences 95

IX. SUMMARY OF CONCLUSIONS 97

XII. REMEDY 97

APPENDIX “A” – HISTORY OF THE PROCEEDING 101

APPENDIX “B” – WITNESS ROSTER 105

APPENDIX “C” – COMMENTS ON ACTUAL OR PERCEIVED IRRELEVANCIES 109

APPENDIX “D” – WIRETAP EVIDENCE CONTROVERSY 112

I. INTRODUCTION – WHAT THIS CASE IS ABOUT

1. This case concerns the April 2004 involuntary transfer of the entire Toronto Police Service (“TPS”) 52 Division Plainclothes Unit (“PCU”). All 15 members of the PCU were transferred. Fourteen of the transferred police officers are grievors.

2. After a lengthy Professional Standards investigation which included wiretaps on the PCU offices and search warrants executed on April 15, 2004, and a culminating incident in which the grievors gathered at a restaurant across the street from TPS Headquarters instead of returning to 52 Division after being interviewed there as part of the Professional Standards investigation, then TPS Chief of Police Julian Fantino (subsequently, but no longer Commissioner of the Ontario Provincial Police (“OPP”)) ordered that the PCU be disbanded and the grievors permanently transferred out of 52 Division. The grievors were dispersed among 12 of the 17 TPS Divisions.

3. In essence, the Employer claims that the transfers were necessary because Fantino had lost trust in what he concluded was a dysfunctional PCU, because of public trust considerations, and in order to unencumber the continuing investigation.

4. Although the Union submits that there was a punitive element to the transfers, it to does not claim (and the Employer does not suggest) that the transfers were disciplinary. The Union claims that the transfers of the 14 grievors were discriminatory and without reasonable cause, and therefore contrary to Article 3.01 of the collective agreement. Article 3.01 provides 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 this Collective Agreement or dealt with under procedures within the 5

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 of Ontario and the Regulations thereto. (Emphasis added.)

5. Not only is the dismantling of an entire unit and the involuntary permanent transfer dispersal of all its members an extraordinary event that is bound to attract attention, then Chief Fantino issued a press release and held a press conference on April 19, 2004 in which he stated that:

…

I ordered an internal investigation. One officer has been suspended. The plainclothes unit at 52 Division has been disbanded and the officers transferred elsewhere. A selection process is underway to re-structure the unit. …

I anticipate that criminal charges and Police Services Act charges will be laid. We will release the details of charges as they occur. …

I will not tolerate my unprofessional behaviour, corrupt practices, compromises to the moral and ethical code of conduct demanded of the policing profession, abuses of power and authority, racial intolerance or discriminating conduct, on or [off] the job.

6. The Union alleges that both the transfers and statements made about the transfers defamed the grievors. The Union asserts that the grievors‟ reputations have been damaged within both the police and general communities. Although no claim is advanced on behalf of anyone other than the grievors, the Union asserts that the defamatory conduct has caused the grievors and their families great mental distress.

7. The Union also alleges that a partial settlement agreed to before the hearing began was breached insofar as it relates to one of the grievors (Bell).

8. There are therefore three issues:

1. the collective agreement issue (i.e. whether the transfers in issue were contrary to Article 3.01);

2. the alleged breach of the partial settlement; 6

3. the defamation claim.

9. In the grievance as filed, the Union demanded the immediate transfer of the grievors back to the 52 Division PCU, damages for loss of income and the loss of opportunity to earn premium pay, damages for defamation and mental anguish, and punitive damages. As time passed and the proceeding evolved so did the remedy sought by the Union, so much so that it is no longer entirely clear what is being requested.

10. The parties agreed that this is not a discipline case. In accordance with the general principle in non-discipline cases that “he who asserts must prove” the Union bears the onus on all issues. The therefore Union called its case first.

11. Although the Union never requested that the Employer proceed first, counsel suggested in argument that the proceeding may have been more focused and expeditious if the Employer had called its case first. In addition to the futility of a suggestion that the order of proceeding should be other than the usual one in non-discipline cases at that stage of the proceeding, a significant part of the case from the very beginning has been the grievors‟ concerns about their reputations and the Union‟s claim that the grievors had been defamed. The onus is clearly on the Union in that respect, and it is far from clear why I would have asked, or how I could have required, the Employer to proceed first.

12. The parties agreed with my suggestion that a representative approach was appropriate but could not agree on a representative grievor. After hearing from counsel in that respect, I directed that the hearing would proceed with two “representative” grievors, with one named by each party. The Union chose grievor Danny Bell and the Employer chose grievor Everett Elliott. The matter proceeded on the basis that I would hear the evidence and representations of the parties with respect to the grievors Bell and Elliott without prejudice to the rights of any of the other 12 grievors. This Award (#8) specifically deals with Bell and Elliott. Although my in rem determination of the common legal issues will be binding on the other grievors, the specific extent to which my determination of the Bell and Elliott cases affects the other 12 grievors remains to be determined. The evidence presented with respect to Bell and Elliott will apply if and as appropriate to the other 12 grievors, and witnesses called to this point of the proceeding may be recalled to the extent necessary if and as the cases of the other 12 grievors or any of them proceed.

13. I note that in the course of the proceeding I ruled that, having regard to the Supreme Court of Canada‟s unanimous decision in Cie miniere Quebec Cartier v. Quebec (Grievances Arbitrator) [1995] 2 S.C.R. 1095 (see also, Re Petro-Canada and 7

C.E.P., Local 593 (2004) 129 L.A.C. (4th) 353 (Craven)), evidence after May 13, 2004 (the date of the grievance) was inadmissible on the merits. I held that since the parties had suggested that damages and perhaps other remedial issue were being left to be dealt with later in the event that the grievance succeeded, such post-grievance evidence might be admissible for that purpose at that time, and that witnesses, including then TPS Chief Fantino, could be recalled if necessary.

II. COMMENT ON JURISDICTION

14. With the exception of an objection to my jurisdiction to entertain the defamation claim (dismissed in Award #3 dated October 23, 2006 (see Appendix “A”), there was no objection or suggestion that I could not hear and determine this grievance on the merits. More specifically, there was no suggestion that the Union‟s claim that the transfers were discriminatory or made without reasonable cause and therefore contrary to Article 3.01 was not properly before me.

15. In his opening statement Employer counsel expressed the Employer‟s view that the notion that an arbitrator can dictate the deployment of human resources in the policing environment, particularly of a plainclothes unit, is an extraordinary one. The Employer submits that it is essential that I recognize that this grievance asks me to evaluate and countermand decisions of the (then) Chief of Police (the “Chief”) who holds a public office pursuant to the provisions of the Police Services Act (the “PSA”) and exercises a statutory authority that is not subject to direction by the Employer, and that since the Employer cannot “tell the Chief what to do”, neither can I as an arbitrator under the collective agreement.

16. This view was not expressed in aid of a “no jurisdiction” motion or developed further in any significant way during the course of the 42 days of evidence and argument that followed. The Employer does not assert that the Union cannot challenge the transfers of the 14 grievors in this case. The Employer does not assert that the Chief or other Command officers can ignore can ignore Article 3.01 or any other part of the collective agreement in the exercise of management rights. Indeed, we shall see that the Chief purported to consider the collective agreement when he made the transfer decision in issue. At no time was it suggested that I cannot make the necessary findings of fact or answer the legal questions posed, including the meaning and application of Article 3.01 of the collective agreement or the exercise of the Employer‟s or Chief‟s statutory or collective agreement management rights in that respect. On the contrary, there is no dispute that the collective agreement binds the parties and is enforceable through the grievance and arbitration procedure. Other than the comment in opening there is no 8 suggestion that I do not have jurisdiction to determine the issues as aforesaid, or that I cannot make a final, binding and enforceable decision with respect to the allegations and claims advanced by the Union in the grievance, or fashion an appropriate remedy to the extent that any of the claims succeed.

17. The police workplace and “police world” collective agreements are different from other workplaces and collective agreements, and pose some unique labour relations challenges. However, there is no suggestion that non-disciplinary transfers cannot be challenged through the rights arbitration process under a police services collective agreement. Transfers have been grieved and arbitrated under other police collective agreements; in Ottawa-Carlton Regional Police Services Board and O.C.R.P.A. (1999), 80 L.A.C. (4th) 309 (Starkman), and Regional Municipality of York Police Services Board and Regional Municipality of York Police Assn. (2000), 60 C.L.A.S. 233 (Simmons), for example.

III. HISTORY OF THE PROCEEDING

18. This has been a lengthy proceeding (42 days of hearing over a period of three years). I heard testimony from 17 witnesses. The Union called 12 witnesses: grievors Bell, Elliott, McCutcheon, Knott, Mayers, and Gillespie; and now retired (former Staff- Sergeant) Paul Mckeown and Michael Fenwick, Detective-Sergeant Dean Burks, Constable Dave Ouellette, Sergeant Michael Walters, and Colette Bell (grievor Bell‟s spouse). The Employer called 5 witnesses: then TPS Chief of Police Julian Fantino, Professional Standards Inspector Bryce Evans, 52 Division Staff-Inspector Don Campbell and Superintendent Paul Gottschalk, and Staff-Inspector Tony Crawford. (See Appendix “B” for the roster of witnesses.) Final argument took “only” five days because counsel had much evidentiary and legal ground to cover in their reasonably succinct submissions.

19. I was required to issue previous seven interim Awards as the hearing progressed. Those decisions shaped the course of the proceeding. However, it would take several pages to review the seven previous decisions in even a summary way. Rather than further encumbering the body of this Award, I have included that summary in Appendix “A”. Anyone interested should refer to the actual Awards.

1V. APPROACH TO THIS AWARD

20. I have reviewed all of the evidence. It has not been easy to separate the useful evidence from the significant amount of chaff. I heard days of evidence about facts that 9 are either not in dispute or not relevant to the determination of the cases of the two representative grievors on the merits. Other than as specifically noted, the evidence (which is to say substantially all of it) was admitted without objection, and the actual (as opposed to arguable) relevance of much of the evidence adduced was not clarified until final argument. Some of the evidence that is irrelevant on the merits is relevant to remedy.

21. I have also carefully reviewed counsels‟ extensive submissions and all the cases submitted, whether or not they were referred to in argument.

22. Mr. Chercover submitted the following cases in support of the Union‟s position and submissions: Re Toronto Police Services Board v. Toronto Police Association (Rossi) [2001] O.L.A.A. No. 800 (Brent); Re Ottawa General Hospital v. Ontario Nurses' Association (1981) 2 L.A.C. (3d) 1 (Picket, Chair); Re Board of Commissioners of Police and Metropolitan Toronto Police Association (Valade) (March 9, 1982,Teplitsky, unreported); Re Regional Municipality of York Police Services Board and Regional Municipality of York Police Association (Amato), (December 20, 2001, Marcotte, unreported); Re Sudbury Downs and Ontario Joint Council of the Retail, Wholesale and Department Store Union, District Council of the United Food and Commercial Workers International Union (2002), 105 L.A.C. (4th) 438 (Nairn, Chair); Re McRae Waste Management and International Union of Operating Engineers, Local 115(1998) 71 L.A.C. (4th) 197 (Sanderson – B.C.); Re Metropolitan Toronto Zoo and Canadian Union of Public Employees, Local 1600 (2008) 171 L.A.C. (4th) 80 (Randall); Re Board of Education for the Borough of Scarborough and O.S.S.T.F., District 16 (1980) 26 L.AC. (2d) 160 (M.G. Picher, Chair); Re Metropolitan Toronto Board of Commissioners of Police v. Metropolitan Toronto Police Association (July 10, 1987, Saltman, unreported); Re Standard Coil Products (Canada) Ltd., and United Electrical Workers, Local 512 (1966) 16 L.AC. 402 (Arthurs, Chair); Re Ottawa-Carleton Regional Police Services Board and Ottawa-Carleton Regional Police Association (Meehan) (1999) 80 L.AC. (4th) 309 (Starkman); Re Board of Commissioners of Police for the City of Sault Ste. Marie and Sault Ste Marie Police Association (1982) 3 L.AC. (3d) 208 (Kennedy); Re Ferranti-Packard Transformers Ltd. v. United Steelworkers, Local 5788 (1983) 10 L.A.C. (3d) 225 (Barton); Re Alberta and Alberta Union of Provincial Employees (Rolland) [2000] A.G.A.A. No. 83 (Sims, Chair); Re United Parcel Service Canada Ltd. And Teamsters Union, Local 141 (1981) 29 L.AC. (2d) 202 (Burkett, Chair); Re Hamilton Regional Cancer Centre and CUPE (Ritchie) (2000) 91 L.AC (4th) 333 (Beck); Botiuk v. Toronto Free Press Publications Ltd. [1995] 3 S.C.R. 3 (SCC); Color Your World Corp. v. Canadian Broadcasting Corp. (1998) 38 O.R. (3d) 97 (Ont. C.A); Re York University and York University Faculty Association (Noble) (2007) 167 L.AC. (4th) 39 (Goodfellow); Re Transit Windsor and Amalgamated Transit Union, Local 616 10

(2003) 123 LAC. (4th) 27 (Brandt); Lennon v. Ontario (Premier) (1999) 45 O.R. (3d) 84 (Ont. C.J.); Musgrave v. Levesque Securities Inc. (2000) 183 N.S.R. (2d) 349 (N.S.S.C.); Grant v. Cormier-Grant (2001) 56 O.R. (3d) 215 (Ont. C.A); and the companion cases Grant v. Torstar [2009] SCC 61 and Quan v. Cusson [2009] SCC 62.

23. Mr. Hines submitted the following cases in support of the Employer‟s position and submissions: Re Toronto Police Services Board and Toronto Police Association (Belgrade Grievance), December 5, 2001, Devlin, unreported; Ryan v. Law Society of New Brunswick (2003) 223 D.L.R. (4th) 577 (SCC); Re Toronto Police Services Board and Toronto Police Association (Promotion Grievances), July 13, 2007, MacDowell, unreported; Re Toronto Police Services Board and Toronto Police Association (Promotion Grievances – Remedy), April 26, 2009, MacDowell, unreported; Re Metropolitan Authority of Halifax and Correctional Officers Assoc. of Nova Scotia (1983) 10 L.A.C. (3d) 265 (Outhouse, Chair); Re Durham Police Services Board and Durham Police Association (2000) 95 L.A.C. (4th) 323 (R.L. Jackson); Knupffer v. London Express Newspaper Ltd. [1944] 1 All E.R. 495 (HL); Leenen v. Canadian Broadcasting Corp. (2000) 48 O.R. (3d) 656 (Ont. SCJ)[ appeal dismissed 54 O.R. (3d) 626 (Ont. C.A.); Mantini v. Smith Lyons LLP et al., May 14, 2003, Ontario Court of Appeal, unreported; Hodgson v. Canadian Newspapers Co. (1998) 39 O.R. (3d) 235 (Ont. Ct. – Gen. Div.); Sturdy v. Canada (Minister of National Defence [2005] B.C.J. No. 778, 138 A.C.W.S. (3d) 970 (BCSC); Mirror newspapers Ltd. v. Harrison [1982] HCA 50, (1982) 149 CLR 293 (High Court of Australia); RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services) (2002) 58 O.R. (3d) 726 (Ont. CA); Stopforth v. Goyer (1979) 23 O.R. 696 (Ont. CA); Re Corporation of the Town of Southampton and Southampton Police Association (Bryce Grievance), October 7, 1980, Saltman, unreported; and, Re Toronto Police Services Board and Toronto Police Association (OPC Costs Grievance), August 28, 2007, Tacon, unreported.

24. I consider it neither necessary nor useful to attempt to set out either the evidence or the parties‟ lengthy submissions in detail. Although I consider it useful to comment on the more significant questions of evidentiary relevance, I do not want to burden these reasons unnecessarily. My comments in that respect are in Appendix “C”. I will refer to the cases as I consider necessary, but I do not consider it necessary or useful to analyze or refer to every case.

25. I will begin by setting out the significant facts that are not in dispute with respect to all three issues. I will then deal with the issues separately, in the order listed above. I will distil my description of the evidence or the parties‟ submissions to the essence of the points made.

V. BACKGROUND AND FACTS NOT IN DISPUTE

26. Unless otherwise indicated, all ranks in this Award refer to those held at the material times or as of the date that the witnesses testified, as appropriate. The plainclothes rank of Detective is equivalent to the uniform rank of Sergeant. The plainclothes rank of Detective-Sergeant is equivalent to the uniform rank of Staff- Sergeant. Unless otherwise indicated, references are to the situation at the material times.

27. The 52 Division PCU is a sort of “Vice Squad” primarily responsible for policing drugs, prostitution, ticket scalping, massage parlours, Liquor Licence Act and By-law offences, and supports other Units in the downtown Toronto entertainment district. It consists of two “Teams” of seven officers under the supervision of a Detective-Sergeant. Each Team is usually made up of four “permanent” and two training Detective- Constables under the supervision and leadership of a Detective.

28. Immediately before the transfers in issue the PCU was staffed as follows. Detective-Sergeant Douglas Hutton was in charge of the PCU as a whole. Detective Daniel (Danny) Bell led one of the two PCU Teams and Detective Brian Berger led the other. Bell‟s Team consisted of “permanent” Detective-Constables Everett Elliott, Stanislaw (Stan) Dziemianko, Sean McCutcheon, and Peter Stehouwer, and “trainee” Detective-Constables Lester (Les) Rosete and Duane Simon. Berger‟s Team consisted of five “permanent” Detective-Constables; namely, Jeffrey (Jeff) Bangild, Dean Ion, Simon Knott, Roger Mayers and William McCormack, and “trainee” Detective-Constable James Gillespie.

29. All officers in the PCU at the time except McCormack are grievors. Grievors Hutton, Berger and Gillespie have all since retired.

30. The two PCU Teams worked alternating “8 days on, 6 days off” 10-hour shift rotations. The normal regular shift hours of work were 6:00 p.m. to 4:00 a.m. Friday- Saturday, and 4:00 p.m. to 2:00 a.m. Sunday-Thursday. The two Teams were scheduled to work alternate weeks, overlapping only every Thursday to facilitate the exchange of pertinent information. The PCU was the only 52 Division Unit scheduled to work a straight night shift modified compressed work week schedule. All required court appearances (“court time”) were therefore during off-shift hours paid at premium rates.

31. The first night of every on-shift rotation (every other Thursday) for one PCU Team overlapped with the other Team‟s last night on shift and was spent catching up on administrative work and being brought “up to speed” as required about relevant events 12 while the Team was off. Subject to requests from senior (management) officers, the PCU Detectives were free to organize and run their Teams as they considered appropriate. Hutton, the Detective-Sergeant in charge of the PCU, usually worked straight days Monday through Friday, from 6:00 a.m. to 2:00 p.m. Most of Bell‟s interaction with Hutton was therefore by telephone or e-mail during one or the other‟s off-shift hours.

32. Bell‟s description of the PCU and how his Team operated is not disputed. The evidence about the manner in which Berger‟s Team operated is sketchy and derives mainly from the wiretap evidence. The evidence is such that I am not satisfied that I can assume that Berger‟s Team operated in much the same way as Bell‟s Team, or that I can make any findings of fact in that respect. This Award therefore speaks only to the operation of Bell‟s Team.

33. Bell explained that the Detective-Constables in the PCU typically worked in pairs for safety reasons, but that because of vacations, illness etc. officers on his Team wouldn‟t necessarily regularly partner in the same pairs, and that an officer would therefore not necessarily know what his partner on a given shift had been doing before that. As Team Leader, Bell either paired up with a Team member whose partner was absent, joined a partnered pair, or conducted investigations by himself. He testified that any officer could be out on his own serving subpoenas or notices, or even dealing with ticket scalpers.

34. There is a dispute about tenure expectations in the PCU. I do not accept the Employer‟s concession that the tenure issue is completely irrelevant to the determination of the grievance on the merits. In any event, there is no dispute that Stehouwer and Simon were scheduled to leave the PCU by April 2004, and that subject to further evidence for Hutton, the grievors other than Detectives Bell and Berger were transferred before any “scheduled” time for them to leave the PCU. On the evidence, including the parties‟ stipulations (subject to the dispute concerning tenure in the PCU for the Detective-Sergeant (Hutton) and the Detectives (Bell and Berger)), the dates that the grievors other than Hutton became members of the PCU in and were “scheduled” to leave the PCU were as follows:

Bell: in November 2000; out April 2004 Elliott: in October 13, 2003; out October 2006 Dziemianko: in October 2002; out October 2003 McCutcheon: in June 2002; out October 2005 Stehouwer: in April 2001; out April 2004 Rosete: in October 23, 2003; out October 2004 Simon: in April 2003; out April 2004 13

Also: Detective-Constable Lum: in October 2000; out early October 2003 (replaced by Elliott); Detective-Constable Moffat: in October 2002; out October 12, 2003 (replaced by Rosete).

Berger: in October 2000; out October 2003 Mayers: in October 16, 2003; out October 2006 Knott: in October 2001; out October 2004 Ion: in October 2001; out October 2004 Bangild: in April 2002; out April 2005 Gillespie: in October 20, 2003; out October 2004

Also: Detective-Constable Clayton: in October 2000; out October 13, 2003 (replaced by Mayers)

35. As indicated above, Bell was selected by the Union and Elliott was selected by the Employer as the representative grievors for purposes of this Award. Elliott was on Bell‟s Team. Mr. Hines explained that the Employer selected Elliott as its “representative” grievor because it perceives him to be a sort of “everyman” nominee, such that if he could be transferred without violating the collective agreement so could all the other grievors. However, Mr. Hines went further, and asserted that “it is absurd to suggest … that it was justifiable to transfer the bad ones but not the good ones”. With the benefit of hindsight the resulting evidentiary picture is less than optimal, but as always the litigation cards must be played as dealt.

36. Although much evidence was called in that respect, the following essential facts are also not in dispute (other than as noted).

37. In early 2003, the TPS became aware of possible and subsequently alleged criminal activity by McCormack (a member of Berger‟s Team, and the only member of the 52 Division PCU at the time who is not a grievor in this proceeding) in the course of a RCMP-led Combined Forces Special Enforcement Unit (the “CFSEU”) joint force investigation into organized crime. This prompted an investigation by TPS Professional Standards. This investigation was dubbed “Operation Bar District”.

38. The Professional Standards investigators obtained wiretap authorizations to aid in the investigation. Wiretaps were active between December 15, 2003 and mid-April 2004. They were only active on PCU lines when McCormack‟s (i.e. Berger‟s) Team was on duty. The authorized wiretaps yielded upwards of 70,000 intercepts.

39. Search warrants were obtained and executed on the PCU office and the grievors‟ lockers on April 15, 2004. Two of the grievors (Simon and Rosete) were away on vacation. The other 12 grievors were required to attend at TPS Headquarters where they were advised that they were not “subject (of any investigation) officers”, but that they were “witness officers”, and they were interviewed by Professional Standards as such. The grievors were instructed not to go “on the road” or perform active policing duties after they were interviewed. Although there is a dispute about whether the grievors were given the option of returning to 52 Division or taking time off, there is no dispute that the grievors were instructed to report to 52 Division Unit Commander Gottschalk the following morning.

40. Instead of returning to 52 Division after their interviews, 10 of the grievors (Bell and Elliott, Dziemianko, McCutcheon, and Stehouwer from his Team, and Berger, Ion, Knott, Mayers and Gillespie from Berger‟s Team) gathered at a restaurant/bar called (at the time) Huey‟s located across the street from Headquarters. Elliott stayed only briefly before returning to 52 Division. Hutton and Bangild did not go to Huey‟s but neither did they return to 52 Division. This “Huey‟s incident” is significant.

41. The following day (April 16, 2004), Gottschalk addressed the grievors present and told them that he was going to then Chief Fantino‟s office, and that when he returned, he would tell them where they were going to be transferred. This was the first indication the grievors had that any of them were going to be transferred. Although Gottschalk met with Fantino and others at TPS Headquarters, by the time he arrived, Fantino had already decided to transfer the grievors out of the PCU and out of 52 Division. Fantino instructed Gottschalk to place the grievors in Divisions closest to their homes, in consultation with an unidentified Deputy Chief.

42. Although elements of the timing of the transfer decision may be in issue, there is no dispute that it was on April 16, 2004 that Fantino made the decision to transfer the grievors effective April 19, 2004.

43. After Gottschalk returned to 52 Division, he and 52 Division second-in-command Staff-Inspector Campbell met with the grievors individually and advised them of their respective transfer destinations. None of the grievors was asked whether he agreed or was willing to be transferred. None of the grievors was asked if he had any transfer preferences. None of the grievors was given any reason or explanation for his transfer.

44. On April 16, 2004, the Operation Bar District investigation was not yet complete. The investigators still wanted to interview entertainment district bar and restaurant owners in that respect. 15

45. The transfers were effective April 19, 2004. Nine of the 14 transfers were to Divisions west of Yonge Street. None of the grievors were transferred to 51 Division which borders 52 Division on the east, or to 53 Division which borders 51 and 52 Divisions on the north, or to 42 or 43 Division which are in the far eastern reaches of TPS‟ jurisdiction. The transfers are reflected in TPS Routine Orders dated (on the face of Exhibit #3A) April 22, 2004. The grievors were transferred relative to where they lived at the time as follows:

 Hutton lived in Ajax and was transferred to 23 Division (5230 Finch Av. W. at Kipling Ave. in furthest northwest part of Toronto)  Bell lived in Scarborough and was transferred to 11 Division (209 Mavety St., second most southwest at Dundas St. W. and Keele)  Dziemianko lived in Hamilton and was transferred to 22 Division 3699 Bloor St. W. at Islington and Bloor (apparently closer to home)  Elliott lived Stouffville and was transferred to 32 Division 30 Ellerslie Av. at Yonge and Finch (apparently closer to home)  McCutcheon lived in Bowmanville and was transferred to 41 Division 2222 Eglinton Av. E. at Birchmount Ave. E. (apparently closer to home)  Rosete lived on or east of Yonge Street and was transferred to 55 Division 101 Coxwell Av. (at Coxwell and Dundas)  Simon lived Brampton and was transferred to 23 Division 5230 Finch Av. W. at Kipling Ave. in NW end of City (apparently closer to home)  Stehouwer lived in Caledon and was transferred to 12 Division 200 Trethewey Dr. at Black Creek Dr. (apparently closer to home)  Berger lived in Ajax and was transferred to 14 Division (150 Harrison St. near Dundas Street W. and Dovercourt - west of Yonge Street)  Bangild lived Bolton and was transferred to 31 Division 40 Norfinch Dr. at Finch and Hwy. 400  Gillespie (residence information not available) was transferred to 33 Division 50 Upjohn Rd (near Don Mills Rd. and York Mils Rd.).  Ion lived at Broadview & Gerrard and was transferred to 11 Division 209 Mavety St. (at Dundas St. W. and Keele)  Knott lived in Stayner and was transferred to 13 Division 1435 Eglinton Av. W. (at Eglinton and Allan Expressway)  Mayers (residence information not in evidence) was transferred to 54 Division 41 Cranfield Rd. (near Bermondsey Rd. and O‟Connor Dr.)

46. The sudden complete dismantling of an entire operational unit and involuntary dispersal of the officers in it among other TPS Divisions was unprecedented. 16

47. The matter attracted immediate media attention (Exhibit #53).

48. Fantino read and released the following statement at a press conference on April 19, 2004 (Exhibit #26 - with paragraph numbers added for ease of subsequent reference):

[1] As a police service, the most important ongoing challenge we face is maintaining the confidence of the people of Toronto.

[2] They are entitled to a police service which serves and protects them and which does so with the highest standards of honesty, integrity and professionalism.

[3] The headlines of the past few days have, undoubtedly, raised some troubling questions for the people of Toronto.

[4] They are entitled to know what we, in the Toronto Police Service, have done and are doing in response to very serious allegations which go to the heart of our credibility and public trust.

[5] As soon as I became aware of these allegations, I took immediate action.

[6] I ordered an internal investigation. One officer has been suspended. The plainclothes unit at 52 Division has been disbanded and the officers transferred elsewhere. A selection process is underway to re-structure the unit.

[7] The investigation continues.

[8] I anticipate that criminal charges and Police Services Act charges will be laid. We will release the details of charges as they occur.

[9] I have been a police officer for more than 35 years. I know I speak for the overwhelming majority of the men and women of the Toronto Police Service when I say that allegations which threaten to damage the trust we have with our [public] produce feelings of sadness and disappointment for all of us.

[10] Above all else, we share the determination to investigate wherever the evidence leads us and to take whatever action is necessary.

[11] Let me be clear. I believe public trust and support for the Toronto Police Service remains high. I am determined to keep it so.

[12] The people of Toronto are fair. They will judge us by our actions. It is up to us to make it absolutely clear that we investigate such serious allegations without fear or favour.

[13] We will not let the people of Toronto down.

[14] I will not tolerate my unprofessional behaviour, corrupt practices, compromises to the moral and ethical code of conduct demanded of the policing profession, abuses of power and authority, racial intolerance or discriminating conduct, on or [off] the job.

(Emphasis added.)

49. The media headlines that Fantino referred to in paragraph [3] of his April 19, 2004 statement and press release were over reports that McCormack had been suspended and arrested, and the PCU disbanded amid allegations of widespread corruption after a “major internal affairs investigation” into allegations that suspects had been “shaken down” for cash or valuables, shakedown complaints from entertainment district bar and club owners, and allegations concerning sexual favours from transvestite prostitutes and a “protection racket with the mob”. Fantino‟s press conference response was widely publicized locally and nationally (Exhibits #40 and #53).

50. No clarification or retraction of anything in Fantino‟s press release or statement to the media has ever been made.

51. Professional Standards‟ Operation Bar District investigation concluded on or about May 3, 2004, (just 15 days later). It was on that day that Evans met with Fantino (and others) and told him that criminal charges were going to be laid against McCormack and others (none of the grievors). Criminal charges were in fact laid against McCormack on or about May 3 or 4, 2004. Several of the grievors‟ names also came up during the course of the investigation, but McCormack was the only PCU officer who was ever charged criminally.

52. The grievance herein was filed on May 13, 2005.

53. Several PSA charges unrelated to any corruption or other criminal allegations were subsequently laid against grievors Berger, Knott, Ion and Mayers – all members of Berger‟s Team. I do not know when these charges were laid. However, on the evidence, including the Notices of Hearing dated July 2, 2004 in the respect, there is no doubt that the PSA investigation occurred and the charges were laid after the April 16, 2004 transfer decision in issue.

54. The evidence includes the records of the disposition of the PSA charges. The charges laid against Knott, Ion and Mayers alleged failures to properly sign on and off duty, or not actually being on duty as scheduled or indicated in the TPS time management system (which in Knott‟s case included being at a casino when he was scheduled to be at work), and in Berger‟s case alleged failure to properly supervise in that respect.

55. Berger pleaded guilty to two of seven counts of neglect of duty relating to his supervision of his PCU Team and was assessed a penalty of 20 days or 160 hours off. (The decision in that respect refers to the disposition of the PSA charges against Knott and Ion.) The penalty was reduced on appeal to 10 days or 80 hours off. Knott pleaded guilty to five of 14 charges of neglect of duty while a member of the PCU and was assessed a penalty of 10 days or 80 hours off. Ion pleaded not guilty to two charges. He was found guilty of one and assessed a penalty of two days or 16 hours off. The conviction was successfully appealed and in the result Ion was acquitted of all charges. Mayers pleaded guilty to one of two charges of neglect of duty and was sentenced to two days or 16 hours off.

56. Initially there was no indication of any PSA complaint or charges against Bell, but on August 17, 2004 (fully four months after the search warrant on his 52 Division lockers had been executed) he received notice that he was being “documented” for alleged improper firearm and ammunition storage. In the result, Bell received and accepted a reprimand for storing ammunition contrary to TPS rules. He was never formally charged under the PSA, or even given the requisite notice of any investigation in that respect.

57. By “Memorandum of Agreement Concerning the Arbitration of the 52 Division Plainclothes Officers‟ Transfer Grievance” dated March 3, 2005 (Exhibit #4), the Employer (i.e. the Toronto Police Services Board – not Chief Fantino) and the Union, on its own behalf and on behalf of the 14 grievors, agreed to a partial settlement of this grievance. Among other things, the parties agreed in paragraph 2(a) that:

“Bell will be transferred back to 52 Division on a permanent basis no later than March 28, 2005 in such Sergeant or Detective position as shall be agreed to by Bell and the 52 Division Unit Commander, Supt. Paul Gottschalk”.

58. Bell and Gottschalk agreed that Bell would return to a Detective position in the 52 Division PCU. However, after hearing Campbell‟s objections and consulting with his “boss”, Superintendent Derry, Gottschalk reneged on his agreement with Bell. Gottschalk apologized to Bell, but refused to return him to the PCU. Instead, a transfer to the Fraud Squad operating out of Headquarters was facilitated.

VI. THE COLLECTIVE AGREEMENT TRANSFER ISSUE

59. I find it useful to begin by focusing on the collective agreement issue, and reiterating the pertinent part of Article 3.01 for the purposes of this case as follows:

ARTICLE 3 – MANAGEMENT RIGHTS

…

(ii) … transfer, …any member;

(a) Submissions

(i) Union

60. The Union alleges that the transfer of the 14 grievors was discriminatory or otherwise without reasonable cause, contrary to Article 3.01 of the collective agreement.

61. The Union submits there was no cogent investigative or other reason to even temporarily transfer the grievors. Although Mr. Chercover did not put it quite this way, I infer that he essentially agrees that what is important is what Fantino knew or ought reasonably have known when he decided to dismantle the PCU and transfer the grievors, and submits that on the evidence Fantino‟s decision was not only without reasonable cause but also discriminatory. The Union submits that Fantino‟s approach to the matter was unfair, and that his failure to consider the grievors‟ interests as well as public interest and the interests of the TPS amounts to a breach of Article 3.01.

62. In the alternative, the Union submits that there is no evidence that permanent transfers were necessary. Mr. Chercover observes that all criminal charges were laid by May 4, 2004 and all PSA charges were laid by July 2004. He submits that after May 4 or July 2004 at the latest, the transfer decision should have been revisited and reconsidered in light of the de facto exoneration of the grievors of any corruption or criminal culpability and the requirements of Article 3.01.

63. The Union submits that many of the particulars pleaded by the Employer (paragraphs 10, 11, 12, 13, 15, 17, 23, 25, 29, 31, 33, 34 of the Employer‟s pleading) are either contradicted or not supported by the evidence, that contrary to Fantino‟s assertions there was no plan to disband the PCU or transfer the grievors prior to April 15, 2004, and 20 that the decision to transfer the grievors was prompted by baseless suspicions and Fantino‟s overreaction to the Huey‟s incident.

64. The Union concedes (for purposes of this phase of the proceeding) that there is some evidence of dissatisfaction with Hutton‟s and Berger‟s performance on the job, but submits that the evidence discloses neither any actual performance criticisms of Bell, nor any suggestion that Bell‟s Team was dysfunctional. Mr. Chercover seems to acknowledge that there may be a distinction to be drawn between Bell‟s Team and Berger‟s Team, which was something he emphasized with the witnesses, and that in any event neither Bell nor Elliott nor anyone on his Team was investigated or suspected of any wrongdoing. Mr. Chercover asserts that there is no evidence that Bell or anyone on his Team had any reason to even suspect that McCormack, or anyone else on Berger‟s Team might be engaged in any allegedly illegal or improper activity.

65. Mr. Chercover says that none of the grievors thought they were doing anything wrong by going to Huey‟s after their interviews, and points out that the Duty Inspector‟s report suggests that there may have been some confusion regarding Campbell‟s direction to the grievors. The Union submits that nothing that occurred on April 15, 2004 justified what it characterizes as Fantino‟s overreaction to the incident.

(ii) Employer

66. Mr. Hines submits that a TPS Chief of Police can do as he pleases subject to the PSA and the collective agreement, and that the “reasonable cause” test is more elastic that a “just cause” test. He submits that the jurisprudence in this jurisdiction, particularly the cases dealing with the collective agreement between these parties, offers the most guidance in that respect. The Employer‟s position is that there were legitimate “business” reasons for the transfers, and that having regard to the mandate of the TPS and the community or public interest that constituted “reasonable cause” for the transfers for purposes of the collective agreement, regardless of any grievor‟s career or other personal preferences

67. The Employer submits that there is no cogent evidence of discriminatory treatment because no similar situation had ever previously arisen. Mr. Hines asserts that Fantino made a thoughtful decision and had reasonable cause in the circumstances to dismantle the PCU and transfer the grievors based on the information available.

68. Mr. Hines spent a significant amount of time reviewing Evans‟ testimony and the wiretap evidence. On the basis of that evidence, he constructed a PCU “umbrella” theory. He submitted that it appeared that other PCU officers might be involved, and that 21 the perception in the entertainment district was that McCormack had some ability to control the PCU umbrella, including Bell and his Team, and argued that it was therefore reasonable to believe that the grievors‟ continued presence in the entertainment district could interfere with the continuing investigation.

69. The Employer concedes that when the investigation concluded McCormack was the only member of the PCU who was alleged to have engaged in any criminal activity, and that no one on Bell‟s Team became the target of any investigation, but submits that that could not have been known conclusively until the investigation was complete, long after the transfers in issue were implemented. Mr. Hines submits that the investigation could not have been completed properly if any of the grievors been left in the PCU, that there is no evidence that Fantino ordered the transfers notwithstanding that he knew the grievors were innocent. He asserts that, on the contrary, Fantino understood that the “situation” was not confined to McCormack, and stresses the context within which the transfer decision was made, including the charges against Central Field Command Drug Squad officers in January 2004 (Exhibit #51) and the Ferguson Report (Ex. #41). The Employer submits that transferring only Berger‟s Team, or only some of the grievors, was not a viable option in the circumstances.

70. Mr. Hines both asserts that the evidence shows that there were criticisms of the Bell‟s and his Team‟s work, and that those criticisms and the “glowing” reviews in evidence (of Bell and Elliott), are irrelevant because these were not “merit” transfers. The Employer also submits that, notwithstanding the many days spent hearing their testimony as Employer witnesses, Campbell and Gottschalk were peripheral players who had nothing to do with the transfer process. (See Appendix “C” in this respect.)

71. Implicitly conceding that the Employer has never done so, Mr. Hines stated that the Employer would now write a letter containing an acknowledgement that the grievors were never part of any corruption activity.

(b) Interpretation of Article 3.01

72. Article 3.01 stipulates that the transfer of bargaining unit employees is an exclusive management rights function subject to review under the collective agreement if a member (i.e. a bargaining unit employee) claims that this right has been exercised “in a discriminatory manner or without reasonable cause”. This means that transfers must be both non-discriminatory and for reasonable cause. But what does this mean in application? What is the arbitral standard of review of a management decision to transfer a TPS bargaining unit employee?

73. Although it is the Employer and not the Chief who is party to the collective agreement, as both a practical matter and a legal matter (i.e. under the PSA) it is the Chief and other TPS management personnel who direct TPS officers and operations on a day- to-day basis. There is no doubt that the Chief and TPS management on one hand and the Employer Toronto Police Services Board on the other stand in each other‟s shoes for collective agreement interpretation, application and administration purposes. That is, TPS management, including the Chief are bound by, and management rights – including the management right to transfer – are subject to the restrictions imposed by the collective agreement.

74. There are clear differences between typical non-police services and police services labour relations which result from the operation of the PSA (see, for example Re Durham Police Services, supra). However, this does not mean that the principles or approach to “police world” labour relations is completely different from “civilian world” labour relations. The same fundamental principles apply except to the extent that the PSA negates them. To the extent that the decision in Re Durham Police Services, supra (at pages 339-340), suggests that a collective agreement grievance arbitrator should defer to the employer because he is not in a particularly good position to pass judgment on the operational appropriateness of police force management decisions, I respectfully disagree. An arbitrator is in no better position in that respect under many (if not most) civilian world collective agreements. An arbitrator under a “police world” collective agreement has the same exclusive jurisdiction and obligation as a “civilian world” arbitrator to determine grievances that define disputes about the interpretation or application of the collective agreement, even if these concern matters of police operational procedures, practice, regulations, or policies. If the parties cannot resolve a collective agreement dispute themselves, the arbitrator‟s job is to do it for them. To the extent that an arbitrator lacks specialized experience in that respect, it is up to the parties to educate him, just as it is in any other specialized sector that has its own special context and culture (such as the education sector which is also governed by specialized non- Labour Relations Act, 1995 legislation, or the construction industry which has its own “culture” and set of legislated rules under the Labour Relations Act, 1995). Contrary to the apparent suggestion in Re Durham Police Services, supra, the arbitrator‟s job is to decide the case before him by applying principle and law to the evidence presented. The fact that there are differences between the “police world” and the “civilian world” is a factor that must be taken into account in that respect, but that is all it is.

75. The fact that Article 3.01(a) specifies that the Employer‟s/Chief‟s right to transfer is “exclusive” is merely a starting point. All it means is that management is entitled to exercise its management rights without the Union‟s or an affected officer‟s agreement. But however exclusive any management right may be, it is not unfettered. It is subject to 23 the express or implied restrictions in the collective agreement. The word “exclusive” does not alter the fact that management discretion is specifically fettered by the collective agreement obligation to exercise its management rights without discrimination and only for reasonable cause (Article 3.01 (b)), or otherwise inconsistent with the collective agreement or the PSA (Article 3.01(c)).

76. An employer is always entitled to some deference in the exercise of its management rights under a collective agreement. The degree of deference or extent to which the exercise of a particular management right is circumscribed depends on the wording of the collective agreement and general principles of collective agreement administration and interpretation (and the operation of any applicable legislation). The limits and considerations that apply to the exercise of a management right may vary according to the particular management right in issue. In this case, the focus is on the Employer‟s right to transfer bargaining unit police officers.

77. The management rights language in Article 3.01 of the collective agreement is far from typical of the language in most “civilian world” collective agreements. Although awkwardly phrased, the provision requires that transfers be non-discriminatory and for reasonable cause. Although non-discrimination clauses are found in most modern collective agreements, a specific reasonable cause requirement is not typically found in “civilian world” collective agreements, leaving the employer with the right to transfer (or “reassign”) an employee subject to non-discrimination or other specific provisions (e.g. seniority clauses) of the collective agreement. This does not mean that the employer can act as it wishes so long as it complies with specific collective agreement provisions because it is also well settled that an employer cannot exercise its management in a manner that is arbitrary, discriminatory or in bad faith.

78. The fact that a transfer is an operational matter does not immunize a transfer decision from arbitral review. As I noted in paragraph 16, above, transfers have in fact been grieved and arbitrated under police services collective agreements.

79. There is no doubt that the Chief enjoys a great deal of management discretion to structure the operations of the TPS and make organizational changes, and to transfer bargaining unit police officer for those or other operational purposes. The collective agreement does not guarantee that the TPS or any of its Divisions or policing units will continue to exist, or be structured or manned in any particular way. It does not guarantee bargaining unit police officers work assignments or positions, or any particular tenure in an assignment, position or classification. There is no doubt that the Chief is entitled to promulgate transfer policies (which might themselves be challenged under the collective agreement), and to transfer bargaining unit police officers on the basis of such policies, or 24 for legitimate operational or other “business” reasons. A transfer made in accordance with an appropriate applicable policy, or for legitimate operational or other reasons cannot be successfully challenged.

80. But the Chief does not have carte blanche to transfer a bargaining unit police officer whenever or wherever he wishes. The Chief is obliged to respect and act in accordance with the “law of the land”, which even in the “police world” includes the collective agreement. The TPS collective agreement requires that a transfer be non- discriminatory and for reasonable cause. That is, the collective agreement expressly guarantees that a bargaining unit police officer will not be transferred in a discriminatory manner or without reasonable cause. That is what the collective agreement says, and the Union and TPS bargaining unit officers are entitled to the benefit of that collective agreement bargain. This permits a bargaining unit police officer to use the grievance and arbitration process to challenge a transfer on the basis that it was discriminatory or without reasonable cause. If the collective agreement is to have any meaning in that respect, the arbitrator must have the jurisdiction to review a transfer decision on the basis agreed to by the parties.

81. Article 3.01 gives an arbitrator jurisdiction to determine whether a transfer is contrary to the collective agreement. It is not the arbitrator‟s job or within his jurisdiction to determine whether a transfer decision was correct, or to second guess the management decision on the basis that he would have handled the matter differently. Management is entitled to deference in that respect. However, an arbitrator has both the jurisdiction and the obligation to determine whether a transfer is discriminatory or without reasonable cause, and to fashion an appropriate remedy if he finds that it was.

82. As Arbitrator MacDowell observed in the context of grievances challenging promotion decisions governed by the same Article 3.01(b) requirements (in Re Toronto Police Services Board and Toronto Police Association (Promotion Grievances), supra), “reasonable cause” suggests a “ballpark” of conduct that will not run afoul the collective agreement. I agree with Arbitrator MacDowell that “reasonable cause” and “just cause” are not equivalent terms for labour relations purposes, and that the phrase “reasonable cause” is a lower standard which suggests that the Employer is entitled to deference.

83. The lower standard of reasonable cause nevertheless requires a basis that is more than mere suspicions or allegations. Management must have and be able to articulate a rational basis for a transfer decision. This requires more than a hunch, suspicion or guess, however honest or bona fide. It requires evidence that the decision-maker made the decision in issue after seeking, and fairly and rationally considering, sufficient specific relevant facts to objectively justify the transfer. As a practical matter, 25

“reasonable cause” requires management decisions to be made in a manner that is not arbitrary, discriminatory or in bad faith.

84. This may look suspiciously like the test applied under civilian labour relations collective agreements which do not contain specific reasonable cause language in management rights provisions, and makes the term “reasonable cause” redundant as a practical matter. This is prima facie contrary to the fundamental principle of collective agreement interpretation that all words must be given their plain and ordinary meaning (subject to absurdity, or contextual or other “special meaning” exceptions). However, the reality is that it is not at all unusual to find redundant language (in the sense, for example, that it reiterates something already stipulated by legislation, or settled by jurisprudence) in a collective agreement – even in one between sophisticated parties. Indeed, Article 3.01(b) itself provides an example when it prohibits the Employer from exercising any of the functions outlined in the very phrase “in a discriminatory manner or without reasonable cause”. Since a transfer decision which is discriminatory is by definition unreasonable it cannot be for reasonable cause. Accordingly, the term “discriminatory manner” is redundant. It is no great leap to conclude that these police world parties intended to do no more than import and codify the civilian world‟s usually unstated fetter on the exercise of the management rights listed in Article 3.01(a)(ii); namely, that they must be exercised in a manner that is not arbitrary, discriminatory or in bad faith – which translates to “reasonably”.

85. Prima facie, there is nothing that prevents the Chief from disbanding any particular squad or unit, or even an entire Division, and transferring all of the bargaining unit police officers in it in the exercise of management rights. However, such an action must be objectively defensible, because it can be challenged on the basis that any affected bargaining unit officer‟s right not to be transferred in a manner that is discriminatory or for reasonable cause has been violated. When that happens all interests must be considered and balanced. On the Union‟s side of the collective agreement divide both group and individual considerations must be taken into account. The appropriate weight or extent to which global or group considerations outweigh or are outweighed by individual considerations will depend on the circumstances, but neither can be ignored. The big picture “forest” and the individual “trees” must both be paid appropriate attention. Although in any given case the circumstances may be such that the transfer of a group of bargaining unit officers may be justifiable and not contrary to the collective agreement even in the absence of reasonable cause to transfer one or more individuals in that group outside of that context, in no case can any officer‟s individual circumstances be ignored because the impact of a transfer is personal to every officer affected, and the collective agreement gives every individual officer the right not to transferred in a 26 manner that is discriminatory or without reasonable cause. The interests of the individual bargaining unit police officer cannot be ignored.

86. I am satisfied that what Article 3.01 obliges the Employer to make transfer decisions in a balanced and proportional way with due consideration to the reasonably available relevant facts and circumstances. To satisfy its onus to show that the Employer did not have reasonable cause to transfer the grievors in this case, the Union must demonstrate on a balance of probabilities that Fantino, who everyone agrees was the decision-maker (albeit in consultation with others) in this case, acted in a manner that was either arbitrary (i.e. capricious; based on whims or suspicions without regard to the reasonably available relevant facts), discriminatory (i.e. biased or improper differential treatment, or based on non-bona fide considerations), or in bad faith (i.e. dishonest or based on irrelevant considerations). The phrase “reasonable cause” implies an objectively sustainable good faith exercise of discretion. To paraphrase the gist of what the OLRB has often written in its “duty of fair representation” cases, a decision must be so implausible, reckless, or demonstrably deficient that it is unworthy of deference.

87. For the reasons that follow, I am satisfied that the transfers of Bell and Elliott (the two representative grievors) were arbitrary and unreasonable, and violated Article 3.01 of the collective agreement.

88. Notwithstanding that the Union proceeded first and bears the onus, it is not disputed that Chief Fantino made the decision to disband the PCU and permanently transfer the 14 grievors out of 52 Division, resulting in the grievors being dispersed across 12 of the 17 TPS Divisions. As the decision-maker, and having regard to the facts that are not in dispute (paragraphs 26-58, above), it is apparent that his testimony is the key to the transfer issue. That said, in this case context is important. In order to properly understand and assess Fantino‟s decision against the collective agreement, it is essential to understand the context within which it was made.

(i) The Investigation Begins

89. The so-called TPS “connection” to the CFSEU organized crime investigation was discovered in early 2003. Of course “connection” is a misnomer because until the speculations in media reports after the transfer decision was made there was never any suggestion that the allegations of possible PCU corruption or criminal (or other) misconduct had anything to do with organized crime. In any case, Fantino‟s best estimate is that he first received information about the TPS connection to the CFSEU 27 organized crime investigation from an RCMP officer in or about February 2003. He says he decided that the TPS “connection” should be investigated separately and that Evans should lead that investigation. He does not say when he made that decision, what instructions he issued, or who he spoke to in that respect. There is no evidence that Fantino caused any information or direction to be given to Evans before the end of September 2003 when Operation Bar District was approved, or that he had direct communication with Evans until in mid-March 2004.

90. According to the Operation Bar District Operational Plan he co-authored and his testimony, Evans became aware of a TPS connection as early as January 23, 2003, but knew nothing of any 52 Division PCU-related allegations until February 24, 2003 when he was alerted to possible corruption issues by a TPS Detective-Sergeant seconded to the CSFEU – not by Fantino or anyone in the TPS management chain of command. Even then, there were no names attached to the allegations. According to Evans‟ Operational Plan it was not until May 22, 2003 that McCormack was identified as “one of the persons actively involved in the corruption”. And it was not until September 2003 that Evans had sufficient information to prepare and submit the Operational Plan dated September 25, 2003 for approval. I consider it more probable than not that Fantino saw or was advised of the contents of the proposed Operational Plan and that it was then that he authorized the separate TPS investigation led by Evans.

(ii) Before the Transfer Decision – Gottschalk and Campbell

91. Notwithstanding Campbell‟s purported suspicions, there is no evidence that Gottschalk or Campbell knew anything about the transfers until just before April 16, 2004. Although Gottschalk and Campbell both say they had concluded that Hutton, Berger and even Bell had to be transferred, they did so on the basis of their own experience and information; that is, independent of anything having to do with the Operation Bar District investigation. Indeed, they were asked to delay implementing transfers they considered necessary unless doing so would arouse suspicion. Further, there is nothing in either Gottschalk‟s or Campbell‟s testimony about any transferring any of the other 11 grievors in other than a normal course.

92. Gottschalk and Campbell profess to have had concerns about Hutton, Bell and Berger that led them to conclude that those three grievors should be transferred before they became aware of Evans‟ Operation Bar District investigation. Since Gottschalk and Campbell had no input into the transfer decision, that would seem to be neither here nor there for purposes of this case. But their many days of evidence in that respect is nevertheless useful because of the insight it gives into the quality of Fantino‟s decision, and it helps put both the decision and Gottschalk‟s and Campbell‟s professed support for 28 the decision into perspective. It also assists with the assessment of the evidence with respect to alleged breach of settlement issue.

93. Campbell chose Hutton to replace the previous Detective-Sergeant (Smallbone) in charge of the PCU. He selected Hutton, who he had worked with before, from a small pool of candidates because of his experience in the MCU and in plainclothes work, and because he thought Hutton was a hard worker who ran an efficient office and did what was required without looking for premium pay. However, Campbell, who had been unhappy with Smallbone‟s performance, soon became dissatisfied with Hutton as well. He testified he was unhappy with Hutton‟s overall management of the PCU throughout 2003. Although he considered Bell to have better control of his Team than Berger did of his, Campbell was concerned about court time expenses for the entire PCU, including Bell‟s Team. Campbell was particularly unhappy with Hutton‟s handling of what he considered to be excessive PCU court time. He testified that he left Hutton to deal with that issue, and felt that Hutton did not do enough to curb excessive court time.

94. I note that Evans testified that he had concerns about the way Bell‟s Team used court cards and that Bell appeared to be dealing with court cases he had no business with because other officers on his Team had laid the charges and were the witness officers. He says he spoke to Bell about this, and that Bell explained that former Unit Commander Maher had wanted the Detective Team leaders to be the officers-in-charge on all cases, regardless of who on his Team laid the charges, to ensure that the case was ready for trial, and act as a central point of contact for inquiries, and plea bargain or Crown instruction purposes. Evans accepted that explanation.

95. Bell testified that no one complained to him about or told him to change the officer-in-charge procedure after Maher left. More specifically, he says that neither Campbell nor Gottschalk said anything. Campbell agrees that he did not speak directly to Bell (or Berger) about the issue. Bell added that neither of his PCU Detective-Sergeants (Smallbone and after him, Hutton) raised that as an issue when court card costs concerns were discussed. He also testified that court card and overtime concerns were nothing new, and that these came up every year as a budgetary cost control matter. Bell testified that it was part of his job as officer-in-charge to control and reduce court time costs if possible. He says he did that as best he could, having regard to the PCU afternoon and evening shift schedule and the daytime court schedules. Bell‟s evidence on this point is not disputed in any significant way.

96. Campbell testified he was also concerned that Berger‟s Team operated on a consensus basis without appropriate direction or control by Berger. He says he continued to be unhappy with Berger‟s supervision during the summer in 2003 because he thought 29

Berger didn‟t have control over his Team either generally or with respect to court time, and that Berger didn‟t know enough about where the officers on his Team were at any given time. He says that Hutton agreed with him that Berger should be moved to a uniform position. Campbell never spoke directly to Berger about any dissatisfaction with him.

97. In contrast, Campbell says he had no enforcement or other concerns about Bell, who he says seemed to be in charge of his Team and knew where the officers were. However, he says that in addition to wanting Berger transferred, by the end of the summer (2003) Hutton “all of a sudden” wanted Bell transferred as well, apparently because he felt Bell had not done enough to curb court time expenses. Campbell believes that Hutton told Bell he was unhappy with Berger. Hutton has not testified.

98. Bell acknowledges that in the summer of 2003 Hutton expressed concerns to him about Berger‟s lack of supervision and control over his Team. He testified in reply that Hutton discussed his criticisms of Berger with him (Bell) and made no bones about wanting Berger out of the PCU. Although he says he never heard anything concrete about moving Berger and denied that Hutton ever told him he wanted him gone as well, Bell testified that he was aware that Berger was due “to be transferred in October 2003, six months before me”. In addition to Hutton‟s general discontent, Bell recalls that Hutton complained about Bangild‟s failure to complete a report, and that an investigation concerning alleged sex acts in a male video store was taken away from Berger‟s Team and given to his Team because “nothing was getting done on it”. He does not recall any specific complaint that Berger didn‟t know what the members of his Team were doing.

99. Bell had his own concerns about Berger. These included Berger and McCormack allegedly being taken to dinner and hockey game by a lawyer who did a great deal of work for entertainment district bar and restaurant owners. Bell does not know whether Hutton spoke to Berger about any of this. He emphasizes that neither Hutton nor anyone else said anything negative about his own performance. In re-examination, Bell added that neither Hutton nor any senior officer ever asked him to speak to any PCU Detective- Constable about any problem with their conduct. In cross-examination Bell agreed that Hutton had a negative reaction to some of Campbell‟s initiatives, but said that he had no problems with Hutton.

100. Gottschalk testified that he was generally satisfied with Bell, and that he saw Bell, who he has known since the late 1970‟s and with whom he also had a “hockey friendship”, as a hardworking Detective who did what he was asked to do and that: “He was a high end earner and performer, and generally speaking I could depend on him. I 30 had no issues with him.” In cross-examination Gottschalk acknowledged that no one on the 52 Division management team ever expressed any dissatisfaction with Bell.

101. Bell testified that he received regular feedback from his PCU supervisor (Hutton), and also from Campbell and Gottschalk. He recalls receiving nothing but positive feedback and praise from them.

102. Notwithstanding his and what he says were Hutton‟s criticisms of Bell, Campbell acknowledged that he and Gottschalk both signed off on a February 9, 2004 promotion “Unit Commander Candidate Assessment Score Sheet” which identified Bell as an “exceptional” candidate and scored him at a perfect 34 out of 34 points. This was a mere two months before the transfers in issue.

103. Exhibit #5 is Bell‟s Unit File. With the exception of the ammunition storage reprimand issued months after the transfers in issue, there is nothing negative and much positive in Bell‟s file. All of his Performance Appraisals, including one completed in September 2003 and one completed in February 2004 (a month and a half before the transfers in issue), are uniformly excellent. Although the excellent September 2003 appraisal is for the period October 26, 2001 through October 19, 2002, it includes the following September 25, 2003 entry by 52 Division second in command Inspector Campbell:

“An experienced Detective who is an asset to our Service. I will strongly recommend than Dan enter the next Promotional Process.”

104. The February 2004 appraisal, which covers the period October 19, 2002 through January 19, 2004, rates Bell as “superior” in all “personal qualities” (section 3) and indicates that he “exceeds” all “core competencies” expectations (section 5) – including “works to meet standards set by management” and “is sensitive to Service‟s constraints and practices”. It also contains the following entry (in Section 7, which provides a space for comment by the Unit Commander or his second in command (although in this case was apparently completed by Detective-Sergeant Fernandez):

“Detective Bell supervises a very busy and dedicated plain clothes unit at 52 Division. The officers under his command are motivated and hardworking. Detective Bell should be credited for the successes of his officers and the office. He is well respected and thought of by his Supervisor, Detective Sergeant Hutton. Detective Bell is encouraged to seek promotion in the near future.”

105. Crawford was asked about his experiences with and impressions of the three people directly responsible for the 52 Division PCU. He testified that he had a good relationship with Hutton when Hutton was a PRU Staff-Sergeant, but that he saw a 31 change when Hutton became the Staff-Sergeant in charge of the PCU. He says there was a lot of conflict with Hutton, who he describes Hutton as being very negative, and always finding problems instead of solutions. Crawford recalls that Gottschalk and Campbell mentioned problems with Hutton, and that they had lost trust and faith in his ability to supervise and explain what his people were doing.

106. Crawford testified that Bell and Berger regularly attended morning meetings (i.e. during other than their regularly scheduled hours of work). While he had a very positive impression of Bell, who he describes as very upbeat and businesslike, with a good understanding of what his Team was doing, Crawford says that Berger tended to generalize and didn‟t seem to be clear about what his Team was doing. Crawford says that Campbell was very unsure about Berger‟s leadership, but recalls no issues with Bell.

107. The performance appraisals Elliot‟s personnel file (Exhibit #6) are uniformly excellent. He has no blemish on his record. No one has anything negative to say about Elliott.

108. Gottschalk testified that he expected both that Bell would also move out of the PCU when his tenure term ended in April 2004, and that there would be a period of time between Berger‟s and Bell‟s departures in order to ensure a smooth transition within the PCU. In contrast, Gottschalk says he concluded that Berger was resisting the changes Gottschalk wanted to bring to the PCU, and generally became more dissatisfied with him. He says he also became concerned about Hutton‟s performance. Gottschalk identified documenting, reporting, control of the PCU premium pay court time, and “getting things done” issues. At some point Hutton was off work with an injury. Gottschalk doesn‟t recall when Hutton went off, how long he was off, or when he returned to work on light duty. When it was suggested to him in cross-examination that Hutton returned in March 2004 after being off for some 6 months, Gottschalk said he recalled seeing Hutton walking with a cane or on crutches but could not recall when that was.

109. Gottschalk says he discussed his concerns about Berger with Campbell, and that Campbell agreed with his assessment and growing frustration with Berger. He is satisfied that he gave the appropriate negative feedback to Campbell in that respect and that he expected that Campbell and Hutton would relay it to Berger. However, he doesn‟t know if either of them did so.

110. Notwithstanding their professed joint dissatisfaction, Gottschalk and Campbell did nothing to change what he says were Berger‟s or Bell‟s “out” dates (October 2003 and April 2004 respectively). Gottschalk says they discussed moving Berger immediately but decided to let “time take its course” and wait until his tenure was up in 32 the fall “instead of moving prematurely”, because their concerns were with his leadership and not because they suspected any wrongdoing. Campbell substantially agrees with this, saying that they decided in September 2003 to move Berger at the end of his “term” in October.

111. However, Gottschalk says and Campbell corroborates that before the October “out” date arrived a month or so later his frustrations with Berger reached the stage that he concluded that “this is not working”, and testified in chief that he told Hutton, who he says agreed with his conclusion, he had had enough and that he should identify a replacement and get ready to move Berger. Gottschalk did not elaborate, and in cross- examination, he testified he is not sure that Hutton agreed with this. Gottschalk says he continued to be dissatisfied with Hutton because he felt Hutton didn‟t deal with Berger appropriately and seemed to be “riding the wave” to see what would happen.

112. Campbell testified that in the end he wanted Bell out of the PCU before Berger. He offered no explanation or foundation for this assertion, which is particularly anomalous given his and Gottschalk‟s testimony that with the possible exception of the court time issue they had no concerns with Bell‟s performance or Team leadership, and his acknowledgement in cross-examination that no one on the 52 Division management team ever expressed any dissatisfaction with Bell. It is also difficult to reconcile this testimony with Campbell‟s own statement in the next breath that: “We knew [Bell] would be moving six months later, and there was nothing in his file indicating any reason to move him; and moving two Detectives at the same time could have a (negative) impact on the office.” In addition, Campbell agreed in cross-examination that Bell‟s and Elliott‟s performance evaluation both before and after the grievance was filed (and therefore before the transfers in issue) were all “splendid”. He agreed that Bell and Elliott both have a “high” reputation for honesty, integrity, fairness reliability, professionalism, and for being “team players”.

113. Bell says he was not aware of any discussions in 2003 about the quality of his supervision, or about him, Berger or Hutton being moved out of the PCU. He testified that there was no discussion or suggestion about any transfer before the April 2004 transfers in issue, and added in reply that “just before” the search warrants were executed in April 2004 he was told there would be no transfers until after Division boundary changes and manpower requirements were sorted out.

114. The point of this evidence is several-fold. It demonstrates that 52 Division management (Gottschalk and Campbell) drew a clear distinction between Bell‟s Team and Berger‟s Team. It establishes that that neither Gottschalk nor Campbell ever expressed their purported desire to move Hutton, Bell or Berger out of the PCU to anyone 33 above them in the chain of command. It establishes that neither Gottschalk nor Campbell received any indication from any senior Command officer of a desire or decision to transfer any of the grievors.

115. In fact, Gottschalk testified that he knew nothing about the transfers until the search warrants were executed on April 15, 2004, when his immediate superior, Staff- Superintendent Kim Derry (then the Officer-in-Charge of Central Field Command which 52 Division falls under), told him it was likely that officers would be transferred by Chief Fantino at his discretion. When Campbell was asked in examination-in-chief when he learned of the transfer decision, he responded in part that: “… we suspected but didn‟t know officially until Gottschalk returned from Headquarters [on April 16, 2004].” Asked why he “suspected” it, Campbell testified that it was because of the magnitude of the ongoing investigation in the entertainment district which was where the PCU did most of its work, concerns about public perception, and that the investigation could be compromised if the officers were left in 52 Division in any capacity. Campbell says that the transfers appeared imminent when Gottschalk received the call to report to Headquarters and to bring the PCU officers addresses with him.

116. This begs the questions: other than that there was no reason to criticise Bell‟s or Elliott‟s performance or to suspect either of them of any misconduct, what did Gottschalk and Campbell know prior to April 15, 2004; and what exactly was the Huey‟s incident that ultimately loomed so large?

(iii) Operation Bar District Begins; Gottschalk‟s and Campbell Get Involved

117. After he was authorized to proceed with the investigation, Evans met with Staff- Superintendent Derry to facilitate the production of information from 52 Division. This had to be after September 25, 2003, and was the first time Evans had any communication about the matter with anyone having anything to do with 52 Division. When Derry involved Gottschalk in order to reduce suspicions that might arise if he was directly involved, Evans called Gottschalk and brought him up to speed on the investigation.

118. Evans says he advised Gottschalk that it appeared that McCormack was the main individual involved, but that he didn‟t yet know who else might be involved. He therefore asked Gottschalk to make no changes in the PCU unless not making changes would arouse suspicions, in which case he should go through with the move.

119. Campbell testified that he first became aware of the TPS offshoot investigation September 2003, with Evans being the sole source of his information, either directly or through Gottschalk, in that respect. Campbell and Gottschalk both testified that they 34 received a telephone call from and subsequently met with Evans. Evans does not recall, and his redacted notes do not record, a meeting with Gottschalk and Campbell at or about that time. Evans recalls, and his notes indicate, that he received a fax and telephone call from Gottschalk on November 26, 2003, and that he asked Gottschalk to inform Campbell of the ongoing Operation Bar District investigation in order to facilitate further production of required information.

120. Campbell says that Evans specifically asked that they delay moving Berger in order not to compromise the ongoing investigation. This must have been after Gottschalk and Campbell had decided to expedite Berger‟s move out of the PCU but before they were able to implement that decision – probably in late September or early October 2003. Campbell and Gottschalk both say that Evans explained that an active RCMP-led criminal investigation had revealed a PCU connection. Campbell recalls that Evans specifically mentioned McCormack‟s name and perhaps others he cannot recall. In cross-examination Campbell testified that he knew in September 2003 that McCormack was the target of the TPS investigation but that the conduct of other officers on the same (i.e. Berger‟s) Team was also in question. Gottschalk does not recall Evans mentioning any names initially, but that McCormack and “a couple of others” were identified later. Later in his testimony he recalled that Ion‟s and perhaps Knott‟s names were mentioned. There was no mention of Bell or anyone on his Team. Notwithstanding that Evans didn‟t actually say so, Campbell and Gottschalk both understood Evans‟ “request” to not move anyone out of the 52 Division PCU while the investigation continued to be a direction made with Fantino‟s authority.

121. Having already decided to move Berger, Gottschalk‟s statement (without further explanation) that he had “threatened” to move Hutton, and the purported PCU tenure policy, Evans‟ request that they not move anyone created a problem for Campbell and Gottschalk. However, they knew that there was a move afoot to modify 52 Division‟s border with 51 Division, so they contrived a cover story and announced that no one would be moved out of 52 Division pending confirmation of the border changes. Campbell says that the PCU was told that this would not create any problems with filling vacancies, or with moving anyone to 51 Division.

122. In cross-examination Campbell and Gottschalk both testified that no one was moved. That is not true. Campbell acknowledged that Detective-Constables Lum and Moffatt from Bell‟s Team, and Clayton (who was McCormack‟s partner) and Hopkinson from Berger‟s Team were in fact moved out of the PCU (although not out of 52 Division) in October 2003 PCU in accordance with the tenure “schedule” suggested by Exhibit #32. That was when Elliott and Rosete (to Bell‟s Team), and Gillespie and Mayers (to Berger‟s Team) were transferred into the PCU. Gottschalk does not recall any of these 35 moves, or when Simon replaced Greenaway on Bell‟s Team. Campbell first explained that the Evans moratorium only applied to McCormack and Detectives Bell and Berger, but eventually agreed that Evans‟ request was that no one be moved. Gottschalk testified in cross-examination that internal reassignments within 52 Division generally occurred at the end of April or October, but he could not recall if there were any reassignments within his first year there (2003), apparently forgetting about Lum, Moffatt, Clayton and Hopkinson – although he does recall moving Moffatt to Community Relations at some point. His explanation is that it is difficult to recall the names of some 300 officers and associate them with assignments and dates. Later in cross-examination Gottschalk recalled Elliott, who he knew from hockey, coming into the PCU but not when that occurred. Other than demonstrating the frailty and resulting questionable reliability of Gottschalk‟s and Campbell‟s memories and raising questions about the reliability of their evidence, nothing really turns on this.

123. Campbell says that contact with Evans was irregular. Although he did not always record in his notes when he did so, Evans recalls updating Gottschalk on the investigation from time-to-time. Gottschalk says Evans kept in regular contact about the ongoing investigation. He says that he received a “lot” of calls from Evans describing PCU officer‟s improprieties, and that this caused him a great deal of anxiety because he couldn‟t take the unspecified remedial or disciplinary action he would have if the investigation had not been ongoing.

124. Although he can recall nothing specific that Evans told him, Gottschalk testified that: “I was angry, disappointed. I knew a lot of these officers and had put a high level of trust in them. I felt betrayed … it was hard not to take it personally.” Gottschalk testified that the dynamic of a PCU is such that he found it incredible that others wouldn‟t have known “for example, that one of them was going off to Casino Rama regularly in a 52 Division car”, as he says Evans had reported, and that he was disappointed that no one said or did anything. He also testified that it wasn‟t clear that the problems were confined to Berger‟s Team, and that he found it hard to believe that as bright as Bell is he didn‟t hear rumours or suspect that that officers were not coming into work on time or at all. Consequently Gottschalk felt let down by the entire PCU. Evans recalls that Gottschalk began to get concerned that he was going to have to answer to someone “down the road” himself.

125. Between January 1 and April 15, 2004 Evans‟ contacts with Campbell continued to focus on McCormack, but Campbell says Evans also expressed concerns about other PCU officers on both Teams regarding, for example, gambling while on duty, the management of investigations and court attendance, and not following reporting for work on time and signing in and out procedures. He says that after the search warrants were 36 executed both Teams were investigated for PSA violations (which resulted in PSA charges being laid against only Berger and three members of his Team as aforesaid). There is no evidence that Evans expressed any concerns about anything other than court time with respect to Bell or his Team to Gottschalk or Campbell.

126. Evans testified that when he met with Gottschalk and Campbell on January 7, 2004 Gottschalk and Campbell identified Elliott‟s name when Evans asked who “ET” was. That is apparently Elliott‟s nickname. Nothing was ever made of this of this anomalous reference to Elliott.

127. When his investigation uncovered information concerning another 52 Division uniform officer (Garvin Khan), and also possible PSA “side issues”, Evans took it as an opportunity to distract attention from Operation Bar District. With Gottschalk‟s and Campbell‟s knowledge and assistance, he organized a “sting” operation with respect to Khan. On February 9, 2004 he met with Bell and Berger and advised them of the Khan investigation. When asked them if there were any PCU officers they could trust to help in that respect, Bell and Berger identified Simon, McCormack, Elliott and McCutcheon. Evans‟ notes (at page 89) record that he “told them to enlist assistance of (illegible name followed by what appears to be “they Id”)”, and a list the names of those four grievors. There is no suggestion that the Khan investigation was conducted other than properly.

128. On February 26, 2004 it came to light that Elliott had laid charges against a club and that the “dope sheet” identified Bell as the officer-in-charge in that respect, and that McCormack had “reached out” to Bell to agree to a plea of guilty to one charge and have the rest dropped. Evans agreed in cross-examination that this was in the nature of a “plea bargaining” discussion and that there was nothing untoward about this in and of itself.

129. The focus of Evans‟ investigation was always on McCormack and Berger‟s Team, which appeared to Evans to be dysfunctional. Evans identified reporting late and leaving early, gambling on duty and generally not doing their job as issues in that respect. However, he emphasized that these were “side issues” as far as he was concerned. Evans specified that he never witnessed Elliott (or Stehouwer) doing anything “wrong or inappropriate”. Notwithstanding that he didn‟t find anything to link Bell or any other grievor to any criminal conduct, Evans maintains that further investigation was needed because there were indications that others might be involved. There is no evidence that any further investigation revealed any untoward conduct, much less criminal conduct, in that respect. Indeed, the evidence is to the contrary.

130. The TPS component of the RCMP-led investigation was terminated when the wiretaps revealed a possible threat to McCormack‟s safety. With the wiretap 37 authorization soon coming to an end in any event, Evans met with Derry, Gottschalk and Detective-Sergeant Sneddon on March 26, 2004 to update them and discuss arrest and search warrant options. Evans says that although he still had not ruled out the involvement of other PCU officers, at this point there was still no evidence that any PCU officer other than McCormack was involved in any criminal activity.

131. Evans testified that word of rumours that Professional Standards was going to search lockers at 52 Division leaked out to the Union and that on or about April 9, 2004 and the then Union President gave instructions to “get the word out” to officers there. Evans also described a wiretap intercept of a conversation between a Director of the Union and McCormack in which the Union representative said: “We‟ll get out to the bar owners and tell them to keep their mouths shut and tell them they don‟t have to speak to Internal Affairs.” There is no suggestion, much less evidence, that any of the grievors had any involvement or knowledge of this.

132. Campbell testified that he was notified a week before that the search warrants were to be executed on April 15, 2004, following which the investigation would move into the next phase. Campbell was instructed to assign McCormack to administrative duties for that week. Gottschalk says he received advance notice of the search warrants, but doesn‟t recall when he knew when the search warrants would be executed. He recalls that he received a telephone call asking him to bring McCormack into his office, where McCormack was served with notice of the investigation but not arrested. He says that “a couple of days later 5-6 Internal Affairs investigators” appeared with search warrants and McCormack was arrested. This is reasonably consistent with Campbell‟s evidence.

(iv) The Transfer Decision in Issue

133. The first question is: what is the transfer decision in issue? Employer counsel agreed in argument that the decision in issue was made on April 16, 2004. On the evidence, the Employer had good reason to concede the point. Fantino‟s testimony is such that it is nevertheless useful to examine the point, and what led to the April 16, 2004 decision.

134. When Fantino was asked how long before the search warrants were executed on April 15, 2004 he had concluded that the entire PCU should be transferred he responded: “Months in advance, but for investigative reasons which I supported we delayed it.” In cross-examination he reiterated that the decision to remove everyone from the PCU had been made months before, adding that it was after he learned of the TPS “connection” from the RCMP, and that implementation was left until the investigation was concluded. On another occasion in his testimony, he said that the decision was made “weeks” before. 38

Fantino also testified in cross-examination that the Command decision at the April 16, 2004 meeting merely expedited the transfer decision that was already in place, and that the only surprise was the Huey‟s incident the previous night. He testified that after discussion with Command Staff in the morning on April 16, 2004 “we” (which I take to mean “he”) decided to expedite the transfers and implement them immediately rather than waiting for Gottschalk to do so in the normal course because “Command trust in the people remaining (presumably the 14 grievors) was lost” because of the “poor judgement” they had displayed the night before; that is, by going to Huey‟s after their Professional Standards interviews rather than returning to 52 Division (which I will examine below).

135. The assertion that the transfer decision had been “in the works” for months before April 16, 2004 suggests that there was an opportunity to make appropriate plans in that respect. Indeed, one would expect that a decision to disband an entire Unit and disperse all of its members across the TPS would require planning and coordination which could be advanced to some extent without compromising the investigation, and that in a large sophisticated organization like the TPS such planning would typically be reflected in a human resources or other paper trail. But the only official or other record of the transfers is “Routine Order “2004.04.22-0448 – Transfers” publishing the transfers effective April 19, 2004, which was issued on April 22, 2004 as part of an 11-page set of Routine Orders (Exhibits #3 and #3A). Fantino testified that there is no documentation that demonstrates that the decision was made and the transfers “were in the works” before April 16, 2004. He seems not to have kept, and certainly did not retain, any official or personal record of anything having to do with the transfers. It appears that neither he, nor anyone in his office, nor anyone in the TPS human resources department, kept any record of anything leading up to the decision to transfer the grievors. That is, there is no paper trail or other cogent evidence of any planning – or even of the decision.

136. One would expect that there would be at least one document or a note, or even evidence that Fantino told someone of such a momentous decision. There is none. Surely, there would have been some time horizon other than “in the normal course”, whatever that meant for an unprecedented decision to transfer all of the officers in the PCU at the same time, not only out of the Unit but out of 52 Division. And surely, at least Gottschalk, if not also Campbell, would have been made aware of such a decision, and either been directed to at least do some planning for the transfers, or done so on their own initiative so as to minimize the disruption to 52 Division and the policing of the entertainment district. And surely consideration would have been given to the grievors‟ transfer receiving Divisions before Gottschalk and an unidentified Deputy Chief were told to deal with that significant part of the equation on April 16, 2004. Presumably, 39 receiving Unit Commanders could be counted on to be as discrete in that respect as Gottschalk was about the investigation.

137. Perhaps Fantino decided in his own mind that the PCU would have to be dismantled at some point but kept it to himself. But he does not say that. He says he agreed with some unspecified someone that the implementation of the transfers should be delayed for investigative reasons. It is possible that Fantino could have made the decision to transfer the grievors during or after his briefing by Evans on March 15, 2004. But he does not say that either.

138. Whatever Fantino previously considered or “decided”, the decision to make the transfers actually in issue was made on April 16, 2004. In the absence of any evidence to corroborate Fantino‟s bald assertion that the transfer decision had been made and was “in the works” months or weeks before, it is clear that it was not until the morning of April 16, 2004 that Fantino actually decided to implement the permanent transfers immediately other than in due course. Not only is that what Fantino says, Gottschalk testified that when he was summoned to Fantino‟s office on April 16 he was informed of the decision and instructed to sit down with a Deputy Chief to determine the grievors‟ transfer destinations

139. There is no evidence that any part of that alleged plan or “works” was communicated to 52 Division Unit Commander Gottschalk or his second-in-command Campbell, or to any of the receiving Divisions‟ Unit Commanders prior to April 16, 2004. Nor is there any indication that any part of the “plan” included replacing the transferred grievors in the PCU. Indeed, Gottschalk testified that Fantino said he was in no hurry to select officers for a new 52 Division PCU until the Ferguson Report recommendations were implemented, and that he therefore had to deal “with what I had”. Gottschalk and Campbell both testified that 52 Division PCU functions were performed by CRU officers until the PCU was rebuilt and began operating in the first week of July 2004 – some 2½ months later. Campbell and Gottschalk both testified that this delay was due to the need to restructure the PCU and rethink the selection of officers for the Unit following the by then more than year old recommendations of the Ferguson Report. Gottschalk left the job of reconstituting the PCU to Campbell and the Detective-Sergeant from the Homicide Squad assigned in June 2004 by Fantino to head the reconstituted PCU. Although Campbell described the process that was engaged, that is not particularly pertinent to the issue before me. What is significant is Gottschalk‟s statement that all of this was intended to satisfy Fantino so that he could satisfy his “constituents”, and that the allegedly long-planned transfers were clearly not “ready-to-go”. All of this suggests that there was in fact no decision or plan in place before April 16, 2004. I therefore find it impossible to credit Fantino‟s assertion, quite rightly abandoned by the Employer in 40 argument, that a final decision to dismantle the PCU and transfer the grievors was made months or even weeks before April 16, 2004.

140. Accordingly, the transfer decision in issue is the one made on April 16, 2004 and implemented effective April 19, 2004 – not some unspecified transfer decision that was never implemented. That is the decision that must be measured against the collective agreement prohibition against implementing a transfer without reasonable cause.

(v) The Huey‟s Incident

141. On April 15, 2004, Campbell drove McCormack to TPS Headquarters to be interviewed by Professional Standards. He directed the other PCU officers on both Teams (i.e. the grievors) to report to Headquarters to be interviewed by Professional Standards after the search warrants were executed on their lockers. Gottschalk remained at 52 Division.

142. Bell testified that he first became aware of the PCU investigation on Thursday, April 15, 2004, the day the search warrants were executed. He says he was in court when he received a page from Stehouwer advising that Professional Standards was at the station, that warrants were being executed on the PCU, and that he was to return to 52 Division. Bell testified that when he arrived at 52 Division, Detective-Sergeant Fernandez told him about the search warrants, that McCormack was being suspended, and directed him to contact and instruct everyone on his Team to report to 52 Division for 2:00 p.m. In re-examination he changed this to 3:00 p.m. In any event, Bell says he called the officers on his Team who were not either on vacation (Simon and Rosete) or already at the station. He says he also called Berger and told him to get his Team to the station.

143. Elliott recalls that he was in court in the morning on April 15, 2004 and returned to 52 Division at around 10:30 a.m. to help Stehouwer prepare a warrant, only to find the PCU office under guard and Professional Standards present to execute search warrants. He says that while he waited he called some other members of Bell‟s Team to come in.

144. Knott testified that on April 15, 2003 he returned a page or call and was instructed by Detective-Sergeant Fernandez to report to 52 Division by 3:00 p.m. McCutcheon recalls he was having breakfast on April 15, 2004 when he received a telephone call from Detective-Sergeant Fernandez directing him to report to 52 Division as soon as possible. Upon arriving at 52 Division he learned that search warrants were being executed on the PCU office, and that he was going to be interviewed by Professional Standards as a 41 witness officer in a criminal investigation of McCormack. McCutcheon says he had no inkling of any of this before he arrived at 52 Division that morning.

145. After the grievors (other than Simon and Rosete) gathered at 52 Division they were taken one-by-one, with counsel, to their lockers for search warrant execution. Once that process was completed the grievors drove to Headquarters together in several cars. Campbell, Evans, and Union representatives and counsel were already there when they arrived.

146. Evans addressed the assembled grievors sometime after 6:00 p.m. He told the grievors that they were witness officers and that there would be criminal charges against McCormack, but that these couldn‟t be permitted to jeopardize the ongoing organized crime investigation. Campbell confirms that the grievors were told that they were classified as “witness” officers – not “subject” officers, and agrees that this amounted to a signal that they were not being investigated. There is no evidence that any of the grievors were given any indication that they were being or were going to be investigated for anything.

147. Campbell addressed the PCU officers present after Evans spoke. Campbell testified that he directed the officers to follow the instructions of Professional Standards and that when they were finished they were to return to 52 Division, report to the Officer- in-Charge and complete administrative duties, after which they could take time off for any balance of their shift. He made it clear that the officers were not to go “on the road” or conduct any investigations that evening. Campbell testified that he did not give the officers the option of either returning to 52 Division to finish paperwork or taking time off. Evans confirms that Campbell gave the grievors a direct order to return to 52 Division after their interviews, where they were to do paperwork and not to go on the road, and that Campbell told the grievors that if they wanted to take time off they were to report off duty to the Officer-in-Charge at 52 Division.

148. When Campbell finished speaking Evans ordered the grievors to report to Gottschalk at 10:00 a.m. the next day (Friday, April 16, 2004). Then Campbell and Evans both left. Evans understands that the Professional Standards interviews started at 7:00 p.m. and that the last interview ended at around 9:30 p.m.

149. Bell recalls that Evans announced to the grievors that as a result of a TPS investigation which included wiretap authorizations arising out of a broader RCMP investigation, McCormack had been suspended and was going to be charged criminally, but that the grievors were not subject officers of any criminal charges and would be interviewed as witness officers. A formal notice to Bell designating him as a witness 42 officer is Exhibit #10 (and similar notices were given to all grievors present). Bell testified that Evans said that McCormack was going to jail and would not be back “on the job”. He says that without identifying anyone Evans also said he was aware some of the grievors had gambling problems, and that treatment would be arranged, but that there was no suggestion that any other PCU officer was under suspicion or investigation. Bell‟s impression was that Berger‟s Team was under greater scrutiny because McCormack was a member of that Team and his Team didn‟t often work with Berger‟s. But he says he was in “utter disbelief”; that he was “stunned, confused” and had no idea about any of this. He denies that he had (or has) any gambling problem.

150. Bell testified that when Evans finished, Campbell instructed the grievors not to go “on the road” or perform any police duties after they finished giving their statements, and that they should return to 52 Division to complete paperwork or take time off. In cross- examination, he agreed with Employer counsel that Campbell‟s instruction to the grievors was that they were to return to 52 Division after their interviews and either do paperwork or take time off, and that no one was to go “on the street”. In response to a question seeking clarification in re-examination, Bell reiterated his understanding that: “We were not to go out on the road and when we finished [the interviews] we were to return to 52 Division and either complete paperwork or take time off.” That is, given three opportunities, Bell said essentially the same thing.

151. Elliott testified that after they arrived at Headquarters the grievors gathered in a conference room, together with counsel provided by the Union, Campbell, and Evans and his Professional Standards partner Detective-Sergeant Earl. He recalls that Evans announced that McCormack would be facing criminal and PSA charges arising out of an ongoing investigation, and that McCormack would never work as a police officer again. Evans said that there were no criminal allegations against anyone else in the PCU and that if there were to be any PSA charges someone else would be handling them.

152. Elliott says that after Evans told the grievors that they would all be interviewed Campbell spoke and advised the grievors that they had two options: one, to return to 52 Division to do paperwork; or two, take time off for the rest of the night. Campbell said that under no circumstances were they to go on the road or do any police work, and that they were to report to the station the next morning.

153. McCutcheon recalls that Campbell directed them not to go back on the road after the interviews, and to return to 52 Division to either do paperwork or take time off.

154. Evans testified that at 11:01 p.m. he received a telephone call from the “Duty Desk” advising that a Union lawyer was with the 52 Division PCU officers and wanted to 43 know what they were to do with cases in which McCormack was a witness officer. Later in chief and again in cross-examination he said that the call came directly from the Union lawyer. Evans‟ notes indicate the call was from the Duty Desk. Other than demonstrating the frailties of human memory and the value of contemporaneous notes, nothing turns on this. In any case, Evans suggested that Bell and Berger provide Gottschalk with a list of the cases and McCormack‟s role in them. Then, at 11:05 p.m., he received a call from 52 Division Duty Inspector Fenton who said Gottschalk had “summoned” him to check regarding the grievors compliance with Campbell‟s order, and asking how much longer he was going to be with them because none of them were at 52 Division. Evans told Fenton he had just spoken with a Union lawyer and they were across the street from Headquarters, and gave him Bell‟s and Berger‟s pager numbers.

155. Bell recalls that the grievors were interviewed separately three at a time. He testified his interview took 30-40 minutes, and concluded at or about 7:30 p.m. Berger‟s and Knott‟s interviews were finished at or about the same time. Bell says they told him that they and “everyone else” were going across the street to eat. Bell and nine other grievors (Elliott, Dziemianko, McCutcheon, and Stehouwer from his Team, and Berger, Ion, Knott, Mayers and Gillespie from Berger‟s Team) gathered at a restaurant/bar called (at the time) Huey‟s across the street from Headquarters. He says he arrived at Huey‟s at or shortly after 8:00 p.m. Elliott returned to 52 Division after a short time. Hutton and Bangild did not go to Huey‟s, but neither did they return to 52 Division. (Recall that Simon and Rosete were away on vacation.)

156. Bell explained that the grievors who gathered at Huey‟s had several reasons for doing so. They had all arrived together, and by that time it had been a long day during which no one had eaten. He says that there was no food available at Headquarters while they were there. He also says the grievors really hadn‟t had time to confer with the Union or counsel, so, took the opportunity to do so while getting something to eat at Huey‟s. Bell testified that everyone intended to book time off and return to the station the next morning. In cross-examination he was unable to say how or when he arrived at that conclusion for everyone else (that is, he does not suggest that there was any discussion in that respect), but maintained that that was his intention from the moment the situation and interview process was explained.

157. Bell acknowledged in cross-examination that he had two drinks and that some of the other grievors also consumed alcohol with their food at Huey‟s, but that no one consumed alcohol to excess. Although he acknowledged in cross-examination that in hindsight he shouldn‟t have done this, in re-examination Bell testified that he doesn‟t believe he violated any direction or did anything wrong. However, other than noting the extraordinary circumstances and that the officers hadn‟t even been signed in, he did not 44 explain this conclusion in light of the fact that he and the other grievors knew they were being paid and that their shifts ended at 2:00 a.m., and his acknowledgment that nothing prevented him from “booking off” before he went to Huey‟s.

158. Elliott was one of the last to be interviewed. When he was finished he went to Huey‟s as well but stayed for only 20 minutes before returning to 52 Division to book off and go home. He confirms that there was no opportunity to eat before the Professional Standards interviews were finished, but says he had nothing to eat or drink at Huey‟s because he was not feeling well and “just wanted to get it done and go home”. Elliott testified that when he arrived back at 52 Division, the Duty Inspector asked where everyone was. Elliott told him they were at the restaurant, and called or paged Bell to tell him the Duty Inspector was asking about the grievors. Then he went home. Elliott testified that the Duty Inspector told him he had the duty sheets and not to bother signing out at the back desk where the sheets are usually kept.

159. McCutcheon says his interview was short but did not conclude until close to 11:00 p.m., after which he went across the street to Huey‟s to get something to eat. However, the documentary evidence indicates that his interview began at 9:14 p.m. and ended at 9:33 p.m. McCutcheon says the grievors gathered at Huey‟s because it was open and close by, and so that they could all return to 52 Division together. McCutcheon testified that he didn‟t consider this to be inappropriate because he hadn‟t had anything to eat all day and was emotionally exhausted. He did not drink alcohol that night. Explaining that with so much going on it slipped his mind, McCutcheon also says that he definitely didn‟t sign himself in or out that day.

160. Knott says that after his interview by Professional Standards he went to Huey‟s across the street “to get a bite to eat”. He explained that: “Our lawyers and the Association were there too, so we were meeting to discuss what had gone on that day.” He says that he returned to 52 Division and booked off at approximately 11:00 p.m. He says he didn‟t see the Duty Inspector.

161. Bell testified that he was still at Huey‟s when received a page from Elliott that the Duty Inspector was wondering where the grievors were. He called Staff-Sergeant Boyce who confirmed that the Duty Inspector was looking for them. He explained to Boyce that the officers were eating and talking to the Union lawyers, and that he would come in and talk to him. Bell returned to 52 Division. Bell was not asked what the other grievors (Dziemianko, McCutcheon, Stehouwer, Berger, Ion, Knott, Mayers and Gillespie) did.

162. Bell does not dispute Duty Inspector Fenton‟s Report (Exhibit #34) that he arrived at 52 Division at 11:50 p.m. He did not explain why the trip took 50 minutes at that time of night.

163. Bell told the Duty Inspector that the officers had been instructed to either return and do paperwork or take time off. The Duty Inspector replied that he understood that they had been ordered to return to the station to complete paperwork and then take time off, and that they had not been given the option to do one or the other. The sign-in sheets were then marked “time off” for all the officers – by Detective-Sergeant Boyce according to Bell – and Bell went home. Bell says that grievors who went to Huey‟s were “reported off” at 11:00 p.m. – at which time they were still at Huey‟s. In cross-examination, Bell agreed with Employer counsel that Campbell‟s instruction to the grievors was that after their interviews they were to return to 52 Division and either do paperwork or take time off, and that no one was to go on the street. Bell agreed that he was paid for on-duty hours, during which time he ate and drank alcohol at Huey‟s, until 11:00 p.m. Bell also acknowledged that he drove one of the 52 Division cars back to the station, after consuming alcohol, that the other police cars were to be driven back by other grievors, and that he and Berger did not fulfill their responsibility under unit policy to ensure the return of the vehicles to the station. He subsequently learned that the vehicle that Bangild (who did not go to Huey‟s) had driven to Headquarters was left there all night.

164. The grievors who testified about the Huey‟s incident claim that they were given the option of returning to 52 Division or taking time off and that they did nothing wrong by going to Huey‟s to eat and drink after they were interviewed by Professional Standards. That was clearly not the case. I am satisfied that Campbell‟s order was sufficiently clear that it could not reasonably have been misunderstood. At its most generous, that order was that after they were interviewed by Professional Standards the grievors were not to go “on the road” or perform police enforcement duties, but that were to return to 52 Division and either finish up paperwork or take time off. Although Elliott (who stayed at Huey‟s only briefly and in fact returned to 52 Division to sign off and go home) heard it differently, Bell, McCutcheon, and Evans heard and understood Campbell‟s instruction to the grievors to be that they were to report to 52 Division before taking time off. (Grievors Gillespie, Mayers and Knott were not asked the question.) Even if they could reasonably have understood that they have the option of returning to 52 Division or take time off, there is no evidence that grievors Bell, Dziemianko, McCutcheon, Stehouwer, Berger, Ion, Knott, Mayers and Gillespie actually made that choice. They did not choose, or advise anyone they had chosen, to take time off before going to Huey‟s or until after they had spent some time eating and at least some of them drinking while actually on duty. It was not until their absence was noticed at or about 11:00 p.m. that anyone took any steps to sign them off duty. 46

165. I understand that there were mitigating circumstances. It had been an unusual and stressful day, and the grievors had not had an opportunity to eat. However, the fact is that they had received a reasonable order with which they did not comply. The grievors could have returned to 52 Division and then taken a meal break. Or they could have called and advised the Duty Inspector they were taking a meal break. Even if it had been the order they claim, against all cogent evidence before me (including Bell‟s and McCutcheon‟s admissions) to the contrary, the fact is that they did not comply and in the result took an extended meal break and some of them at least (definitely Bell) drank on duty without authorization.

(vi) April 16, 2004

166. Bell testified that he and 11 other grievors (Simon and Rosete, both on Bell‟s Team, being away on vacation) reported to 52 Division at 10:00 a.m. on Friday, April 16, 2004 as ordered. After they were gathered in the PCU office Gottschalk arrived, accompanied by Detective-Sergeants Fernandez and Sneddon. Bell testified that Gottschalk was “steamed” and that he knew about the eating and drinking at Huey‟s while the grievors were on duty. He acknowledged that this probably added (to the McCormack situation) a source of embarrassment for Gottschalk. He recalls that Gottschalk addressed the officers, saying:

“When I came here I said you had a friend in me and I‟m here to tell you that none of you have a friend in me. I will not defend any of you. You have stabbed me in the back.

I‟ve been up all night taking telephone calls. You are all gone – or I‟m gone. I have to go meet with the Chief and I‟ll probably get my ass reamed out again. I‟ll be back at 1:00 p.m. to tell you where you‟re going.”

167. Elliott recalls that after the grievors gathered in the 52 Division PCU office on April 16, 2004, Gottschalk, Campbell, Sneddon and Fernandez came in together. He testified that Gottschalk was visibly upset and that Gottschalk:

“… said that when he came to the station he told us we had a friend in him and he said we no longer had a friend in him, that he felt he‟d been stabbed in the back, that he had been ordered to the Chief‟s office and that he had the Chief chewing his ass off all night, and he was going for more and when he came back he would tell us where we would all be going to be working”.

168. Knott testified that he had no idea of any transfer until April 16, 2004 when Gottschalk added to the shock of the previous day by announcing he would tell them 47 where they were all going when he returned from the Chief‟s office. Knott says he had never seen Gottschalk so angry and that Gottschalk said that: “If we had a friend in him we didn‟t any more, and he had been on the phone all night with the Chief and maybe others.” Knott expressed the unsolicited opinion that the grievors were transferred because they went to Huey‟s before returning to 52 Division.

169. McCutcheon recalls that when he arrived at 52 Division on April 16, 2004 he was told that the grievors would be meeting with Gottschalk one at a time to be told “where we were going”. He says this was the first indication of a transfer. Later in his examination-in-chief McCutcheon recalled things a bit differently. He testified that when Gottschalk arrived he seemed very upset. Although he doesn‟t specifically recall what Gottschalk said, it was to the effect that he “had worn a lot of stuff in his career, some of which he deserved and some which he didn‟t; but he didn‟t deserve this and that if we were looking for a friend in him we didn‟t have one because we had stabbed him in the back”. He says that with that Gottschalk announced that he was going to see Chief Fantino, that either he would be gone or they (the grievors) would be gone, and that when he returned he would tell them where they were going. When Gottschalk returned an hour or two later he gave the grievors their transfer instructions.

170. Bell says he was “extremely hurt” and embarrassed by Gottschalk‟s statements. He says has known Gottschalk on the job for 18 years, and that they have also played recreational hockey together for many years. Elliott says he was stunned by Gottschalk‟s outburst. He had known Gottschalk on and off the job for 15 years and like Bell had played hockey with him. He couldn‟t believe or understand the vehemence of Gottschalk‟s remarks because he knew he had done nothing wrong.

171. Bell and Elliott both testified that Gottschalk returned in the early afternoon and announced to the grievors that they were all being transferred out of 52 Division and that he would tell them individually where they were going. The grievors met with Gottschalk and Campbell one at a time. Bell says Hutton went first and he was second. He says Gottschalk told him:

“Danny, I‟m sorry to have to do this. You are required to report to the Unit Commander at 11 Division at 8:00 a.m. Monday morning.

172. He says that Campbell instructed him to surrender his office keys and equipment, and that he was not to attend any licensed premises within 52 Division without first notifying him or Sneddon. When he was asked and answered that he understood Bell was sent on his way. Bell understood that he was being moved to a uniform position. He testified that he was shocked and embarrassed, and couldn‟t believe it was happening, 48 and that he said something to that effect. Bell testified that while he was packing up his desk and locker Sneddon came to him, apologized and said:

“Danny, we know it‟s not you or your Team. You did good work.”

173. Elliott testified that when his turn came Gottschalk told him he was sorry but that he was transferred to 32 Division and was to report there on Monday morning. Campbell then told him that he was not to enter any licensed premises in 52 Division territory without first telling and getting permission from Gottschalk or himself. Elliott testified that he told Gottschalk that he didn‟t believe he had done anything wrong, but that if had, he apologized. Gottschalk does not recall this but agrees it may have happened.

174. Still in shock from the events of the day previous, McCutcheon say that when he met with Gottschalk and Campbell they instructed him to clean out his locker report to 41 Division on Monday morning. He testified that Gottschalk told him: “Sorry I have to do this to you, but that‟s the way it is.”

175. Gottschalk testified that at around midnight on April 15-16, 2004 he had telephone conversations with both Duty Inspector Fenton and Campbell about the activities of “Bell and others” after their Professional Standards interviews were completed and they left Headquarters. He does not recall speaking to Fantino, or to any Deputy Chief or Derry that night. He does recall being told that the grievors had ignored Campbell‟s clear instructions to return to 52 Division and gone to a bar instead. Gottschalk believed that constituted a PSA offence. Fenton‟s April 16, 2004 report to Chief Fantino with respect to the incident (Exhibit #34) noted that there was a discrepancy between Evans‟ and Bell‟s reports of the interviews finishing times, that Campbell‟s orders had either been misunderstood or ignored, and that all 52 Division cars were accounted for. Fenton concluded that “further investigation is required”.

176. Campbell testified that Gottschalk told him the following morning (i.e. on April 16) that the grievors had gathered and “gone drinking” at Huey‟s instead of returning to 52 Division. He understood that some of the TPS cars they had used to travel to Headquarters had not been returned to 52 Division. Although he had no clear idea of any individual officer‟s conduct in that respect, and didn‟t bother to ask, Campbell was “disappointed” that what he believes were his clear instructions had not been followed. He added that this confirmed his belief that the PCU officers did not follow management instructions, adding the ad hominem observation that their first loyalty appeared to be to the Union and not the TPS.

177. Gottschalk testified he was ordered to Headquarters to meet with Chief Fantino on April 16, 2004. Notwithstanding that he had no actual information that any of the 49 grievors, or even any suggestion that Hutton or anyone on Bell‟s Team, might have done anything wrong, Gottschalk was upset because he felt he had been betrayed by the grievors, including by Bell who he had known for a long time. Gottschalk testified he went to the PCU office to vent (his word). Despite not knowing exactly who did what (if anything), Gottschalk says told the grievors gathered there that he was angry, and that he was going to see the Chief and expected all of them to be moved. Gottschalk testified that he told the grievors that if the Chief indicated that any of them could stay he would ask that they be moved too, and that he would tell the Chief that it was “them or me”. Gottschalk says it was an emotional day for him. He agreed that he was angry and took “it” personally. He says he had had enough bad press in his career and didn‟t need any more.

178. Having already decided himself that all of the grievors “had to go”, Gottschalk went to Headquarters where he met with Chief Fantino, the Deputy Chiefs, the “Head” of Human Resources and the “Head” of Professional Standards. He testified that he found the Fantino to be of “like mind”, and that Fantino had already decided to disband the PCU and transfer the grievors. Gottschalk described the meeting atmosphere as sombre. He says that few words were spoken by anyone other than Fantino, and that it was clear that Fantino had given the matter thought. Fantino instructed him to sit down with one of the Deputy Chiefs, and to identify the grievors‟ home addresses and place them in Divisions closest to their homes.

179. After doing do, Gottschalk returned to 52 Division. He confirms that he and Campbell spoke with the grievors individually and gave each of them their transfer instructions. Campbell and Gottschalk both confirm that the grievors were instructed that they were not to conduct any further 52 Division business except as authorized and coordinated by Sneddon or Campbell.

180. On the evidence, Bell and Berger remained responsible to ensure that cases already begun were completed, subject to approval before making any necessary attendance in the entertainment district in that respect. On the evidence (particularly Exhibit #18), at least where Bell was concerned this seems have been a pro forma process. There is no evidence that approval was ever denied, and Bell apparently continued with the 52 Division PCU cases he had already started very much in the normal course. However, Bell says (and Exhibits #29 and #30 corroborate) that after the transfer in issue both the Alcohol and Gaming Commission of Ontario and the Director of Prosecutions sought information with respect to what had occurred as defence counsel sought production of TPS documents and information for the apparent purpose of impeaching the credibility of various of the grievors, including Bell, in proceedings 50 concerning entertainment district charges. Bell says that there were charges that were in fact withdrawn, including charges that McCormack had nothing to do with.

181. Although Gottschalk says he didn‟t consider whether the transfers were temporary or permanent, it must have been apparent that they were all intended to be permanent transfers. There was no discussion and the grievors were given no input into the transfers. There is no evidence that any of the grievors were told why they were being transferred, or why any of them were transferred to the particular Divisions.

182. Gottschalk testified that after he spoke to the grievors he contacted the respective receiving Unit Commanders. He advised them of the transfers and told them they were at the Chief‟s direction. He asked that they look after the officers in what was a difficult time for everyone. It is difficult to reconcile this with his anger and very personal “vent” that morning, or with his insistence and agreement with Fantino that everyone in the PCU had to be transferred.

183. There is no evidence that Gottschalk had any discussion about the transfers with Fantino before they met at Headquarters on April 16, 2004, or that Fantino ever sought any input from Gottschalk in that respect. On the contrary, it is clear from Gottschalk‟s vent to the grievors on April 16, 2004, and his evidence about his subsequent meeting with Fantino, that he knew nothing of Fantino‟s actual decision until that morning. Campbell only suspected there would be transfers before April 15, 2004 because of the magnitude of the ongoing entertainment district investigation. He acknowledged that he didn‟t know anything “officially”, which I infer from his words and demeanour means nothing at all, about the transfers, until Gottschalk returned from his Headquarters meeting with Fantino on April 16, 2004.

184. Although the other Employer witnesses agree with his decision to varying degrees, none of them had any input into the decision. Fantino testified that he made the decision in consultation with others, but none of these unidentified “others” testified. Accordingly, the only direct evidence of the basis for the decision comes from Fantino.

(vii) Assessment of the Transfer Decision

185. I find it both odd and troubling that in a large publicly funded paramilitary police organization like the TPS no one kept a single note, much less any official record, of anything leading up to a transfer decision as significant as the one in issue, or even of the decision itself. There isn‟t a single document that records anything in that respect, which seems odd having regard to the nature of the TPS organization, and the issues and time frame involved. I consider it odd that neither Fantino, nor (apparently) anyone in his 51 office or on “Command Staff”, kept any investigation file or any other surviving record of events, as police officers are trained and expected to do on the job, particularly when the importance of doing so and the foibles of human memory are undoubtedly demonstrated on a regular if not daily basis in the police world. It seems odd that there is no surviving documentation by Fantino or anyone in his office or the chain of command, or TPS human resources prior to the actual transfers in issue, when on the evidence (notwithstanding Crawford‟s suggestion to the contrary) the decision to completely dismantle the PCU and transfer all of the officers in it out of 52 Division was unprecedented. I would have thought that something of that nature and magnitude would have resulted in a paper trail to and from the Chief‟s office, or at least some paper record, and that the importance of preserving such a paper trail or record after the grievance was filed would have been obvious to anyone, much less to the experienced Chief and senior Command Staff of what I understand is the largest municipal police service in Canada.

186. Because there is no documentary record, all Fantino has to offer is his memory of events. Fantino testified on November 17 and 21, 2008, more than 4½ years after the transfers, and more than 5½ years after he says he first received information about the TPS “connection”. Assuming that Fantino‟s tendency to testify in bald generalized statements reflects nothing more than the natural deterioration of memory rather than something nefarious, the quality of his evidence is poor and raises doubts about the reliability of his evidence. More questions arise when his evidence is compared to that of other witnesses.

187. Fantino tried to put his testimony into context by explaining that when he returned to the TPS as Chief he wanted to make his expectations of honesty and integrity clear to TPS officers, and also to “risk manage” issues, especially the public‟s need to know. He wanted to inform the public about of the risks and dangers police officers face in order to promote the public trust essential to effective policing. He testified that he “messaged” this as often as he could, dwelling on core values and “trying to risk manage our reputation” by creating an atmosphere of public openness and transparency. Fantino testified that he drew lessons from past TPS incidents, mentioning the Junger Inquiry, the investigation and arrest of a TPS officer for armed robbery, and the Central Drug Squad and “ROPE” Squad scandals in that respect. Fantino testified that it is impossible to keep “bad news” a secret and that it is a bad idea to try to do so because that can itself lead to rumours, misinformation and special agendas which cause even more damage. On the other hand, he acknowledges that one must also be careful about what is disclosed, so that, for example, investigations are not compromised, and that the balance between the two can be difficult to achieve.

188. Fantino described the media reports of allegations of Central Drug Squad misconduct and the “Officer Kelly episode”, and what he characterized as the resulting media frenzy, calls for an inquiry into what some suggested was widespread corruption in the TPS, and calls for his resignation. Fantino did not elaborate on (and there is no evidence about) the “Officer Kelly episode”. However, Exhibit #51 relates to the Central Drug Squad matter, which concerned a lengthy investigation and the January 2004 arrests of six (6) members of Team 3 of the Central Drug Squad on numerous corruption related criminal charges.

189. Although the Central Drug Squad arrests came later, Fantino testified that these various incidents, and his desire to establish a culture of public support and participation in community policing, is why he commissioned, with the Employer‟s support, the public inquiry conducted by the Honourable George Ferguson, Q.C. He hoped this would result in attainable suggestions for improvement. The result was the January 2003 Ferguson Report. Volume 1 of the Ferguson Report and his report to the Employer dated March 26, 2004 (more than a year later) in that respect are Exhibits #41 and #28 respectively. Both the Ferguson Report and Fantino‟s report to the Employer identify “Plainclothes” as a “high risk” specialized unit.

190. That is the background context, but what information did Fantino have on April 16, 2004 when he decided to permanently transfer all of the grievors? Where did that information come from? What was the nature and quality of the information? Was there other reasonably available information which he ignored or did not consider?

191. Fantino specified that the information he received from an RCMP officer in early 2003 was an allegation that McCormack had gambling issues and was “shaking down” bar owners. He testified that the information suggested PCU corruption in Toronto‟s entertainment district, and that while McCormack (a member of Berger‟s Team) was the only member of the PCU specifically identified as a suspect in that respect, the allegations “were not positively limited to him”. Fantino did not describe the nature or extent of the information he had at that time, and I consider it reasonable to infer that all he had was the bald allegation he described; namely, that McCormack was shaking down entertainment district bar owners. Fantino did not provide the basis for his conclusion that the allegation was not limited to McCormack. Further, Fantino did not say, and there is no evidence that suggests, that he actually caused anything to be done at that point. There is no evidence that Fantino did or caused anything to be done about the allegation until he authorized Operation Bar District, probably in late September 2003. The evidence suggests that Evans probably learned of the TPS issues independently of Fantino and that it was Evans and not Fantino who instigated the investigation into the 53

TPS “connection”. There is no evidence that Fantino got involved until after Evans presented his Operational Plan in that respect.

192. The Operational Plan co-authored by Evans is dated September 25, 2003. The Plan identifies eight TPS officers – two as “targets” of the investigation and six and “target‟s associates”. McCormack‟s name appears prominently throughout, and he is identified as one of the two, and the only member of the 52 Division PCU, “targets” of the proposed Operation Bar District. Bell, Soon (Sinbad) Lum (who was a member of the PCU at the time the Operational Plan was being prepared but who was transferred out in October 2003), and Adrian Greenaway (who was a member of the PCU from July 17, 2000 through April 1, 2003) are three of six TPS officers identified as “Target‟s Associates”. Bell is the only grievor whose name is listed. There is nothing in the Plan which indicates how or why Bell‟s name came up. However, Evans testified, and his notes indicate, that Bell‟s name came up peripherally in the context of alleged corruption on September 22, 2003. In the absence of any evidence that suggests otherwise, I consider it reasonable to infer that Bell was identified as a “Target‟s Associate” on the basis of this peripheral mention of his name in a wiretap.

193. The vagueness of Fantino‟s testimony and Evans‟ evidence lead me to conclude that it is more probable than not that all that Fantino had before Evans‟ September 25, 2003 Operational Plan was a vague allegation of possible corruption to which McCormack‟s name had been linked. There is no evidence that any grievor other than Bell was even mentioned.

194. What of after Evans‟ implemented Operation Bar District? What information did Fantino acquire from the investigation – before he decided to permanently transfer all of the grievors?

195. Evans is very clear that he reported on the progress of the investigation to his Professional Standards superiors and expected that information would be passed along to Fantino “as appropriate”. He testified that he had no knowledge of “how far up” investigation information was going, but that in his experience Professional Standards reports to the Chief as considered appropriate – which suggests that not all reported information is necessarily passed along. The evidence does not include the particulars of the reports Evans made, but I think it fair to infer that the focus of his reports was on corruption and criminal allegations. Evans does not know how many hands his reports passed through, or the form or content of any reports that Fantino actually received.

196. Fantino agrees that he did not have regular communication with respect to the investigation with Evans or his partner. There is no reason to doubt Evans when he says 54 that his first direct contact with Fantino was about Operation Bar district was in a 1½ hour meeting with Fantino and others in the Chief‟s office on March 15, 2004. On the evidence, Fantino had no direct communication with Evans or his partner before that date. Fantino agrees that Staff-Superintendent Derry did not update him regularly, and he provides no details of any updates that he did receive from Derry or Acting Deputy Chief Dicks (his investigation liaison) – or from anyone else.

197. On October 7, 2003 Evans left a voice-mail message for Superintendent Pilkington in which he reported that Bell‟s name had come up. Since Fantino agreed in cross-examination that he never had any misconduct information specific to Bell (or Elliott) it seems likely that Evans‟ message was not passed along to Fantino, or that if it was it didn‟t suggest any misconduct on his part. Evans also says that Berger‟s name came up in the context of discussions of concern with respect to the entertainment district. It is not clear what these “discussions of concern” were, who they were with, or what was passed on to Fantino in that respect. Although this Award concerns Berger in only a general way, as it applies to issues in common to all of the grievors, and Berger‟s specific case must be left to be dealt with later, these bits of evidence raise questions about the nature and quality of the information reported to Fantino.

198. I consider it probable that Evans was the sole original source of all of the information that Fantino had before he made the transfer decision in issue. Prior to March 15, 2004 that information came to him in an unknown form filtered through an undisclosed number of links in the chain of command. The precise information or level of detail that Evans reported is unknown. There is no evidence about who other than Acting Deputy Chief Dicks or how many people the information went through, the nature or amount of editing that was done, or the form or level of detail of the information that actually reached Fantino‟s eyes or ears. The only evidence in that respect is Fantino‟s admission that he had no details of any of the allegations. Fantino did not say he could not recall the details. He testified he had none. I consider it reasonable to infer that prior to March 15, 2004 all that Fantino had was general allegations or vague suspicions.

199. Evans testified that when they met on March 15, 2004 he gave Fantino an overview of the investigation from the beginning, when the CFSEU first became involved. He testified that he “would have said there were side issues and might have mentioned” what they were. When asked in chief whether there was any discussion about the side issues and what would happen with them, Evans responded that there was not. He says he did the talking and only described the issues. Other than an expression of concern that the investigation involved the then President of the Union, neither Evans‟ testimony in chief nor his notes provide any details of what he actually told Fantino about the “side issues”. 55

200. I am satisfied that the focus of the discussion on March 15, 2004 was on McCormack and an application for authorization for wiretaps on the then Union President. In cross-examination, Evans testified that he did not tell Fantino that the investigation had not uncovered any evidence of wrongdoing by anyone in the PCU other than McCormack. However, since Evans briefing was about what had been uncovered, it would have been unreasonable for Fantino or anyone else present to assume that there was any evidence of criminal wrongdoing by anyone other than McCormack.

201. When asked in examination-in-chief whether the wiretaps captured comments suggesting that McCormack was not the only one involved in the entertainment district matter under investigation, Evans responded: “I don‟t recall anything like that, but there were 70,000 intercepts.” I think it fair to infer that if the wiretaps in fact revealed anything more about Bell in that respect that evidence would have been produced. None was. Notwithstanding that according to Evans the extensive wiretap evidence before me represents only a “minimal” amount of the total collected, I consider it reasonable to infer that what has been produced represents the Employer‟s best such evidence.

202. A “note” in the Operational Plan immediately after the target and associate officers are identified states that information obtained to that point “indicates that there are 4-6 police officers involved in the corruption”. It is far from clear what that meant, but the context suggests that Evans‟ thought that the 4-6 would come from those named in his proposed Operational Plan. However, it is apparent that notwithstanding that he mentioned him in the Operational Plan, Evans never really suspected Bell of any criminal wrongdoing then or at any time during the investigation. Neither Bell nor Elliott, nor anyone else on Bell‟s Team, ever came under suspicion. There was never any evidence that Bell or any member of his Team was involved in any criminal activity. Indeed, the investigation never revealed any reason to suspect that Bell was involved in any entertainment district misconduct. Evans testified that the same was true for everyone on Berger‟s Team, except possibly for Berger himself.

203. Fantino testified that he also had information, which he did not detail or specify by source, that PCU officers were being signed in or out by other officers, contrary to TPS policy that officers sign themselves on and off duty for safety and fitness for duty reasons, that officers were not actually at work as scheduled, that police vehicles were being used for personal matters, that officers were likely engaged in unprofessional activities outside the scope of their duties and responsibilities, and that there were PCU supervision and management issues. Fantino acknowledges that he did not have details of these allegations. He says he understood there would be a PSA investigation in that regard. As noted above, PSA neglect of duty charges were subsequently laid against 56

Berger and three other grievors on his Team – all relating to the signing on and off duty, actually being on the job as scheduled, and Berger‟s supervision of his Team in that respect. Fantino says his impression was that there were issues regarding PCU day-today interactions with 52 Division management, but that his concern was with the immediate hands-on supervision of the Unit, including by the Staff-Sergeant (grievor Hutton) responsible for running the Unit. Fantino did not explain and there is no hint in the evidence of how he developed this impression.

204. The question suggested by the evidence is: when did Fantino have any more specific information about the PSA issues? More specifically, what PSA issue information did Fantino have before he made the April 16, 2004 decision to permanently transfer the grievors?

205. It is far from clear that Fantino had anything more then the most general information of any PSA issues, much less details, before he decided to permanently transfer the grievors. There is nothing in Evans‟ Operational Plan that refers to any of the PSA issues the Fantino testified he had received information about. There is no evidence that Gottschalk or Campbell had any communication of any kind with Fantino with respect to anything material to the issues before me before Fantino decided to transfer the grievors. More specifically, neither Gottschalk nor Campbell had any information about any suspected corrupt practices to give, and there is no evidence that any information relating to the investigation or to any PSA issue ever passed between Fantino and Gottschalk or Campbell. With the exception of the court time supervision issue, which on the evidence they discovered on their own (and which Fantino did not specifically identify as one of the management and supervision issues he received information about), Gottschalk and Campbell claim ignorance of any allegations until and as they received it from Evans as the investigation evolved after September 2003. Even at the March 15, 2004 meeting, Evans did no more than mention that there were side issues.

206. I consider it much more probable than not that any PSA issues information was discovered or relayed after Operation Bar District was launched, and that Fantino could not have been aware of any PSA issues before then. The vagueness of Fantino‟s testimony and Evans‟ evidence lead me to conclude that it is more probable than not that all that Fantino had before Evans‟ September 25, 2003 Operational Plan was some vague allegation of possible corruption to which McCormack‟s name may have been linked. There is no evidence that any grievor other than Bell was even mentioned in that respect. And it is apparent that notwithstanding that he mentioned him in the Operational Plan, Evans never actually suspected Bell of any criminal wrongdoing at that (or any) stage of the investigation.

207. It is far from clear that Fantino had anything other than the most general indication that there were PSA side issues before he made the transfer decision in issue. He was a busy man in the some 4½ years that passed between April 16, 2004 and when he testified without the assistance of any notes or documents on November 17 and 21, 2008. Memory is a resource which dissipates over time. As it dissipates, gaps appear, and reconstruction and rationalization increasingly replace the reproduction of events. It is quite conceivable that Fantino knew no more than that there were PSA side issues before he decided to permanently transfer the grievors. That is, it may be that Fantino misremembers when he became aware of the PSA issue he described, and that he was not in fact aware of those issues until after the grievors were transferred and the PSA investigation proceeded.

208. It is in any event hard to credit any suggestion that Fantino ever had any information about PCU corruption or operational issues that suggested that the entire PCU was dysfunctional. There is nothing in the evidence that suggests that Bell or anyone on his Team was associated with the corruption allegations. The evidence does not suggest that Fantino had sufficient cogent information about any PSA or operational issues to even suspect much less reasonably conclude that the entire PCU might be dysfunctional before he made the transfer decision in issue.

209. Fantino testified in cross-examination that he wanted to find out who was responsible for what he concluded was the PCU‟s failed performance. If he had information from any source that something was operationally amiss in the PCU, why is there no evidence that he did anything about that? On the evidence, all he did was authorize Evans to proceed with his Operational Plan, and which Plan was limited to the corruption allegations. There is no evidence from which I can even infer that Fantino actually did anything before the end of September 2003 that had even the slightest bearing on the transfers, and there is no evidence that he did or caused any investigation or anything else to be done about any suspected operational issues before he decided to permanently transfer the grievors. Perhaps there was a concern that taking steps in that respect might compromise the ongoing investigation. But Fantino does not say that. Further, it is far from clear that no operational concerns could have been addressed without compromising the investigation.

210. Fantino acknowledged that the only PCU identities he was aware of were Hutton, who he knew professionally (which I take to mean not personally), and McCormack. In cross-examination it emerged that Fantino was not aware that Hutton had been off work with an injury for a significant period from late 2003 and on light duty when he returned to work in early 2004. He was unaware of any suggestion that Hutton had been actively seeking the removal of one PCU Detective for some time, and that “by the end of the 58 situation” Hutton was looking to have both Team supervisors (Bell and Berger) removed. While he was aware that there were two Teams in the PCU he drew no distinction between them because he felt none was necessary in the circumstances and action had to be taken. In short he knew nothing of substance about any of the grievors, and there is no evidence that he made any effort to find out.

211. Fantino says his investigation liaison (Staff-Superintendent and Acting Deputy Chief Dicks), who did not testify, made him aware of the wiretap authorizations with respect to the PCU, that search warrants were going to be executed on the PCU office, that McCormack was going to be suspended, that Evans intended to interview all of the officers in the PCU, and that the investigation would continue after that. This must have been just before the search warrants were executed on April 15, 2004 and McCormack was arrested. Fantino explained that this was just one phase of the investigation and that bar owners still had to be interviewed with respect to unspecified PCU conduct and other unspecified non-criminal issues. He testified that he sought advice and determined that it was appropriate in the circumstances to “unencumber” and maintain the integrity of the future investigation by removing all of the members of the PCU. He was particularly concerned about bar owners and the potential for perceived undue influence if the grievors remained in the PCU. In cross-examination Fantino testified that the decision to permanently transfer the entire PCU was a balanced response by the Command team, with legal advice and consideration of the collective agreement. Advice must be based on information, and there is no evidence about the information that was provided to whoever it was that Fantino received advice from. He did not identify who gave him advice, or reveal the advice he received. Nor did he explain or expand on what he meant by his statement. More specifically, he did not describe the consideration he says he gave to the collective agreement.

212. When asked in chief by Mr. Hines why the decided to completely reconstitute the PCU and permanently transfer all of the grievors rather than temporarily transferring some or even all of them temporarily pending the results of the investigation and returning the officers who were exonerated, Fantino replied (using “I” and “we” interchangeably) that he made that decision notwithstanding that he had no information about anyone other than McCormack in the PCU because of the recommendations of the Ferguson Report, and because “Command” had lost confidence in the PCU as it was, and “we felt it was incumbent upon us to move forward and … prove to our people and the public that we were dealing with the issues and the greater good, and that the Ferguson Report was important to us”. He considered it an “opportunity” to instil a different discipline “in what proved to be a high risk unit”, and that this would allow the grievors to move on “and not be encumbered by a lingering situation”. He testified that “we needed a fresh start and to move forward”. In cross-examination Fantino testified that he 59 was not aware that the Central Drug Squad members who were arrested and accused of very serious offences were only temporarily transferred as a matter of administration. Fantino also testified that he was not aware of any TPS precedent for such a permanent involuntary dispersal of an entire Unit. There is no evidence of any such precedent.

213. Fantino testified that he believed that all of the grievors needed to get on with their careers, and that the concerns about the functioning of the PCU were sufficiently grave that the status quo could not continue. He reiterated that the PCU had been referred to as dysfunctional and “we needed to move on”. In cross-examination Union counsel asked Fantino directly: “Who told you the 52 Division PCU was dysfunctional?” His unresponsive answer was: “It was a conclusion Command arrived at.” He did not explain how he or Command arrived at that conclusion. At the same time, he testified in cross-examination that he had “suspicions” that required investigation, begging the unasked questions: “what were those suspicions and the basis for them; and was there such an investigation?” When asked in examination-in-chief to comment if it was suggested that only one Team in the PCU was dysfunctional and the other wasn‟t aware of its activities, he responded that: “We debated that, but because we were aware of how those people operate; we felt they knew or ought to have known.” He testified that he expected McCormack‟s alleged indiscretions were common knowledge within the PCU. Fantino made this assumption notwithstanding that he had no direct knowledge of the PCU or anyone in it (other than perhaps McCormack or Hutton), that on the evidence he made no inquiry into how the PCU actually operated, and notwithstanding his statement that Campbell was only accountable for what he actually knew and his acknowledgement that it “might happen” that Bell‟s Team would know who on Berger‟s Team was at work and where they were at any given time. In cross-examination Fantino acknowledged that the partner of a TPS officer who was arrested for armed robbery did not know about those activities.

214. Although he agreed that PCUs function in a way that is “the same but different”, Campbell testified that in this case both Teams were tightly knit groups which shared information and ideas with each other. Accordingly, he expected that Berger‟s entire team, and particularly McCormack‟s partner, would know about his activities. He also expected that Bell‟s Team knew what Berger‟s Team was doing and about McCormack‟s lifestyle issues. Having stated that opinion, Campbell recalled a situation in 1985 when he was Drug Squad officer and he and his partner were charged criminally and he was immediately transferred to administrative duties in the Communications Bureau located at Headquarters. Campbell testified that he was not aware of his partner‟s conduct and the charge against him was dismissed by way of directed verdict at the Preliminary Inquiry. That is, he did not know, and was not expected to know, about his partner‟s illegal conduct, but he expected that Bell and the grievors on his Team would know what 60 illegal or improper activity (if any) McCormack and the grievors on Berger‟s Team were engaged in, notwithstanding that there is no evidence that that the two Teams actually worked together anywhere near as closely as regular partners typically do.

215. Notwithstanding that Gottschalk‟s direct PCU experience was in a smaller PCU at another, smaller Division without the challenges unique to the downtown Toronto entertainment district, he testified that the police work was similar and that PCUs tend to be tightly knit and their members know what others in the Unit are doing. More specifically he testified that he would be surprised if the members on the same PCU Team and “someone” on the other Team didn‟t know an officer “dropped a couple hundred in a casino while on duty”. However, he also agreed such knowledge would depend on the circumstances, and he specifically agreed in cross-examination that he didn‟t expect that anyone on either PCU Team would have been aware of any alleged criminal activity my McCormack.

216. Crawford testified that from his experience in the 32 and 42 Division PCUs, which he acknowledges are different from the downtown 52 Division PCU, the nature of a PCU is such that he cannot accept as likely that no one else would know if a member of the PCU was involved in misconduct. The fact that there are two Teams of PCU officers (on opposite rotating schedules) makes no difference to him in that respect. In cross- examination, however, he conceded that it is likely that an officer engaged in misconduct would likely try to hide it, and that whether others would be likely to become aware of it would depend on the time period and extent of the misconduct.

217. While conceding that “nothing is improbable”, Bell maintains that it is hard to say what a Team Leader or others on a Team would or should know about the activities of another Team member because that would depend on the circumstances. He maintains that he was very familiar with what the officers on his Team were doing but that notwithstanding the collegiality between the two Teams, he was not familiar with what Berger‟s Team was doing on a day-to-day basis because he was not responsible for Berger‟s Team. Bell noted that he didn‟t often work with anyone on Berger‟s Team, and added that on the Thursday overlap shift, his and Berger‟s Team would exchange information about investigations, problem bars and massage parlours, and other matters only as required.

218. Bell denied any specific knowledge of McCormack‟s activities or the allegations against him prior to April 15, 2004. In reply, Bell acknowledged that he knew that McCormack was a gambler, but denied hearing anything about McCormack trying to get money from bar owners, and said he had no idea McCormack was in serious debt. He also knew grievor Knott to be a gambler, but did not know he had money issues. 61

Gillespie acknowledged that he had heard that McCormack was gambling, but maintained he was not aware that he was doing so while on duty, and that he hadn‟t heard that McCormack had a gambling problem or financial difficulties “associated with” his gambling. He also testified that he had heard that others on Berger‟s Team, specifically grievor Knott, occasionally went to a casino. When Mr. Hines pointed out that when he was interviewed on April 15, 2004 (between 21:07 and 21:17 – Exhibit #39) he told the Professional Standards interviewer that he had no knowledge, including of rumours, about McCormack gambling, Gillespie responded that to the effect that he found it difficult to distinguish between what he knew then and what he had learned since, and that if he said “no” at the interview that was the case at the time.

219. All of Fantino, Gottschalk, Campbell and Crawford assumed that the grievors on Bell‟s teams would know what McCormack and others on Berger‟s Team knew what McCormack was allegedly up to. In each case, their assumption was based on unrelated or dated experience, without sufficient consideration of the unique nature of the 52 Division PCU, or even their own acknowledgement that what any grievor could be expected to know about and other PCU member‟s conduct would depend on the circumstances. All of them, most importantly Fantino, made baseless assumptions without any actual evidence that justified their conclusion that. Bells‟ evidence was neither significantly challenged nor shaken. I am satisfied that there was no reasonable basis for Fantino conclusion that anyone on Bell‟s Teams was ware of any alleged illegal or improper activity by McCormack or anyone on Berger‟s Team.

220. Fantino claims that the decision to disband the PCU was “not a trivial off-the-wall decision”, but was one made with a “heavy heart and with consideration for the TPS as well as the people involved”, and that “we opted for the greater good”. He testified it was a “nagging, difficult set of circumstances, and we tried to do the best and right thing we could”. These are fine media worthy statements. But other than his bald assertion, there is no evidence that Fantino gave any consideration to “the people involved”. He acknowledges that other than McCormack and Hutton he didn‟t even know who they were, and on the evidence he made no effort to find out who they were or anything about them, and he acknowledged in cross-examination that he had no specific information about misconduct by any of the 14 grievors. More specifically, he agreed that he had no information specific to Bell or Elliott. Fantino conceded in cross-examination that he would have expected that the officers‟ annual evaluations and reports would have revealed such problems if they actually existed, although he also said that it would have been difficult for 52 Division management to be aware “what was going on” or to be sure of the quality of the Unit‟s enforcement statistics. There is no evidence that Fantino consulted or caused anyone to consult the grievors‟ personnel files before he made the transfer decision in issue. In cross-examination, Fantino was directed to Campbell‟s 62

February 9, 2004 scoring of 34 out of 34 in Bell‟s “Unit Commander Candidate Assessment Score Sheet” (entered as Exhibit #9 before my post-grievance evidence limiting ruling). He said he was not aware of this and offered that perhaps Campbell didn‟t know of Bell‟s shortcomings and that “you can only know what you know”, and – apparently unlike the grievors – Campbell was only accountable for what he knew. He formed the opinion that supervision had failed because otherwise there wouldn‟t have been problems – of which he had no details.

221. Fantino testified that Command had lost trust in the PCU and that there was also a public trust issue. He says that distinguishing between and explaining the distinction between the two PCU Teams was an insurmountable problem, and would have created more problems for the grievors by raising new issues and possibly prejudicing things yet unknown. When Mr. Hines pursued this with him in chief, asking about the possible impact on bar owners and public confidence if only some of the PC Unit officers had been moved, Fantino responded that he felt at the time that he could not explain why they were dealing with one Team and not the other at that point of an ongoing investigation, and that it “would have been an impossible and unattainable situation, and would have raised questions in the public mind about what we were doing”. Although Fantino did not refer to it, I note that Evans‟ “Operation Bar District” Operational Plan contains a note that in his opinion, in September 2003, more than 6 months before the transfers: “… it appears that the Night Club owners are reluctant to report corruption because they feel that if they did then they will be harassed by the police in the future …”

222. Mr. Hines pursued the point by asking about the public perception and operational advantages and disadvantages from a purely policing standpoint of transferring the entire PCU. Fantino responded that there was a “huge” advantage because it “unencumbered” the investigators and permitted investigators to get the best possible information from witnesses, and that in his experience it was the natural administrative and operational thing to do. He testified that “we felt we had no choice”, considering fairness to the officers, the need to uncomplicate the investigation, and reduce criticism or suggestions of fear of retaliation by witnesses so that they would cooperate.

223. Notwithstanding that he knew of no actual allegations against any PCU officer other than McCormack, Gottschalk testified that he “felt” that a “significant number” of PCU officers would be investigated, and that he considered the operational implications in that respect to be such that it was “too risky” to leave any of the grievors in place. In his view, leaving any of the officers in the PCU could compromise the further investigation, the TPS, or the officers‟ personal safety. Gottschalk sought to distinguish the PCU situation from the Central Field Command Drug Squad situation where only one of the four Teams comprising the Squad was transferred in the face of criminal 63 proceedings against the removed Team on the basis that the Drug squad is structured and operates differently. He says that while both situations received much media attention, officers‟ names and pictures were included in the media accounts concerning the Drug Squad, while in the media reports about the PCU McCormack was the only one identified by name and the PCU was characterized as a group. Asked whether he was aware of any internal “personal notoriety” that resulted for the grievors, Gottschalk testified that some of the names of the grievors were known, but that that was generally not the case across the TPS for other than people who worked directly with the grievors.

224. Campbell testified that he fully supported the decision to transfer the grievors, and that he believed then and still believes that it was the right thing to do because of the magnitude of the ongoing investigation in the entertainment district which was where the PCU did most of its work, concerns about public perception, and because the investigation could be compromised if the officers were left in 52 Division in any capacity.

225. Crawford testified that he could see the rationale for the transfers because they were in a conflict position and under a “cloud” while the investigation was ongoing, adding that the situation was not without precedent.

226. Even though McCormack had been the only PCU officer identified for the purposes of criminal charges, Evans contemplated that the entertainment district bar owners would be interviewed in order to determine whether there was any basis for criminal charges against any of the 4-5 other officers who had been mentioned during the investigation. In his view, leaving McCormack in place as an active member of the PCU or any other enforcement position would have had a negative impact on the ongoing investigation. That seems obvious, but Evans also testified that leaving the rest of the PCU (i.e. the grievors) in place could have made the bar owners reluctant to cooperate, knowing that those officers could influence their licenses and business operations, and that court proceedings could also be affected. In that respect, Evans offered that after the situation became a media sensation a Crown Attorney told him that lawyers were trying to use the situation to have charges withdrawn or dismissed on the basis that the PCU was corrupt. Asked whether returning the grievors to uniform as 52 Division PRU officers (for example), Evans testified that that was an option, but that that even in that position the grievors could have gone into the entertainment district bar for enforcement purposes. However, Evans also testified that from his perspective, the best option was to temporarily “suspend” (i.e. transfer) the grievors out of the PCU and 52 Division, or place them in non-enforcement positions until the interviews (not the investigation) were completed (which they clearly were by May 3, 2004). Evans also testified that moving 64 the grievors out of the PCU would be best for them, and that there were still PSA side issues to be dealt with.

227. I find it impossible to credit the notion that distinguishing between the two PCU Teams was a problem, much less an insurmountable one. It is quite apparent from their evidence that that is precisely what Gottschalk, Campbell, and Evans (and Crawford at least as between Bell and Berger) did.

228. I am satisfied that Fantino‟s April 16, 2004 decision was motivated by the Huey‟s incident. I am satisfied that notwithstanding that Duty Inspector Fenton‟s immediate report of the incident (Exhibit #34) indicated that Campbell‟s order may have been misunderstood and that further investigation was required, the Huey‟s incident was the culminating incident; that is, that it is more probable than not that but for that incident the transfers in issue would not have occurred when or as they did. Not only is that what Fantino says, all of the evidence points to the “Huey‟s incident” as the significant factor in Fantino‟s mind on April 16, 2004. There is no evidence that suggests otherwise. However, it is apparent that it was not the sole basis for his decision to transfer all of the grievors.

229. What did Fantino know even on that fateful Friday, April 16, 2004 that caused him to conclude that the PCU should be completely dismantled and that the grievors should be transferred out of 52 Division immediately? He knew that the PCU falls within the “high risk” classification. He knew the Ferguson Report recommendations with respect to high risk units. He had information that McCormack was allegedly engaged in corrupt activities and that criminal charges were or probably were going to be laid against him, but that the corruption allegations were still not “positively” limited to McCormack, and that that the corruption and Operation Bar District investigations were not complete. He had unspecified limited general information that there were PSA side issues about which he had no details. And he knew about the Huey‟s incident. That is, he “knew” that the grievors had been interviewed by Professional Standards on April 15, 2004, and notwithstanding Duty Inspector Fenton‟s immediate report of the incident indicated that Campbell‟s order may have been misunderstood and that further investigation was required, he believed they had disobeyed an order to return to 52 Division after their interviews and gone drinking instead.

230. That was the basis upon which Fantino concluded that the entire PCU was dysfunctional and that its “failed performance” was the result of a failure in direct supervision. He concluded that distinguishing between the two Teams was an insurmountable problem which could create unknown problems and that there was no need to do so in any event, because he assumed that any grievors who were not actually 65 involved in the alleged corruption or PSA side issues knew or ought to have known about them and failed to take any action. Because of this, and despite claiming that he wanted to find out who was responsible, Fantino decided that as a matter of fairness and to let the grievors get on with their careers, and to unencumber the ongoing investigation(s), it was best to permanently transfer all of the grievors not only out of the PCU but entirely out of 52 Division.

231. All of this is quite problematic given the suddenness with which the transfers were implemented without regard to any individual circumstances, and the quality of the knowledge and information Fantino probably had, and the information he could have had if he had made or caused any inquiry to be made.

232. Fantino‟s suggestion that he took the situation as an opportunity to implement the recommendations in the Ferguson Report issued in January 2003 (more than a year earlier) concerning tenure, and that that was part of his motivation is not credible, because the transfers were made without regard to how long any of the grievors had been in the PCU. Some of the grievors (including Elliott, Rosette, and Mayers) had been in the Unit for less than 6 months and were nowhere near the end of their PCU tenure on anyone‟s theory of tenure.

233. On the evidence, Fantino had no information that any PCU officer other than McCormack was even suspected of corruption or other criminal misconduct. Fantino says that the corruption allegations were not limited to McCormack either before or after the search warrants were executed on April 15, 2004. That statement is disingenuous because although it is true that McCormack was not the only TPS officer eventually charged, he was the only PCU officer charged. Although the investigation was not yet complete and the criminal allegations were still not “positively” limited to McCormack, the fact is that the investigation was in its very late stages, and Evans had enough evidence to lay charges against McCormack but there was still no suggestion much less evidence that any of the grievors (with the possible exception of Berger) had engaged in any criminal misconduct. Fantino knew that when he made the decision, and he knew or ought to have known that was the issue when he testified.

234. Second, Fantino had no details of any PSA allegations. Even when Evans finally briefed Fantino in person on March 15, 2004, just one month before the transfers the focus of the discussion was on the criminal and corruption issues, and specifically McCormack and the then Union President. The only cogent evidence about the PSA so- called side issues comes from Evans who says that he “would have” said there were side issues, and “might have” mentioned what they were. Although Evans testified that he did not tell Fantino that he had not uncovered any evidence of wrongdoing be any of the 66 grievors, neither did he say that he had any evidence that suggested that any of the grievors were guilty of wrongdoing. There is no evidence that any of the grievors‟ names were mentioned to Fantino in connection with any alleged wrongdoing at any time prior to his transfer decision on April 16, 2004.

235. Third, the evidence suggests that the 52 Division PCU is not (or at least was not) like every, or any, other PCU. Fantino admitted that he knew nothing about how the 52 Division PCU operated. It was not appropriate for Fantino use his dated experience in a different PCU to assume that the 52 Division PCU operated like any other, or to assume that any of the grievors probably knew or ought to have known about any of the misconduct that McCormack or any of the other grievors were allegedly up to. Further, on the evidence, that assumption was clearly wrong. It seems likely that the members of a PCU Team would know quite a bit about the activities of the other members of their own Team. However, I am satisfied that it would be the exceptional rather than the usual case in which the members of one Team would know anything other than what the members of other Team told them about their activities. I consider it unreasonable to simply assume as Fantino did that a member of one Team would be aware of any alleged criminal or otherwise illegal activity by a member of the other Team.

236. Fourth and related to the previous point, Fantino‟s conclusion that no distinction could or should be made between the two Teams was clearly and recklessly wrong. It may be that Fantino was unable to distinguish between the two Teams, but that is because he failed to make any effort to find out of there was a basis for doing so. Instead, he relied upon what on the evidence were vague allegations, and unwarranted or baseless assumptions. Evans, Gottschalk, Campbell and Crawford all very clearly drew such a distinction, and on the evidence they were right to do so. Not only did Fantino know nothing about how the 52 Division PCU or its two Teams operated, he knew nothing about any of the grievors other than Hutton, who was the only grievor he could even identify by name. Without any details of the PSA issues all that Fantino had was a suggestion that there might be such concerns with Berger and members of his Team. There is no evidence that Fantino had any information that connected any allegations of misconduct to anyone on Bell‟s Team. More specifically, Fantino had no such information implicating Bell or Elliott. Fantino made no effort to speak to Gottschalk, Campbell, or anyone else at 52 Division about his concerns or to find out if they had any.

237. Mr. Hines pursued the “no distinctions between Teams” theory by asserting that “it is absurd to suggest … that it was justifiable to transfer the bad ones but not the good ones”. First of all, this suggests a punitive element to the transfers even if they were technically not disciplinary. Second, what is absurd about the notion that a collective agreement that required transfers to be for “reasonable cause” requires appropriate 67 consideration be given to the circumstances of individual affected officers? Third, what is absurd about transferring the Team or individuals reasonably perceived to be “bad” or dysfunctional and leaving the others in place?

238. On his evidence, Fantino had been informed that there was sufficient evidence for criminal charges to be laid against McCormack and that the grievors had disobeyed an order to return to 52 Division after being interviewed by Professional Standards and gone drinking on duty instead. In addition, he had suspicions and was aware of allegations of misconduct without details or (with the possible exception of Berger) names attached. To this he applied an assumption based on his dated experience in a different PCU that there was no distinction to be made between the two PCU Teams, and that everyone in the 52 Division PCU knew or ought to have known about McCormack‟s alleged illegal activities and the PSA issues and had either participated or at last failed to report or take any action in that respect. He assumed that all of the suspicions and allegations were true and that the problems were so pervasive that all of the grievors were equally guilty of everything – all without any further inquiry.

239. Fantino admits he had no details of any allegations, including (on the evidence) the Huey‟s culminating incident. He was apparently content that that was reasonable cause to permanently transfer all the grievors. There is no evidence that Fantino made any attempt to discover if there was any basis for his suspicions, or to obtain details of or of any grievor‟s connection to the allegations, or to inform himself of the structure or operation of the PCU. Nor did he trouble himself or anyone else to review the history, TPS performance, or tenure of any of the grievors in the PCU.

240. What else could or should Fantino have known even if he does not say so? If he read Evans‟ Operational Plan, and if Evans was reporting appropriately and the information he was reporting was being accurately transmitted to Fantino, he should have known that the names of ten officers associated with the PCU at some point had surfaced during the course of the investigation, and that seven of those (McCormack, Bell, Elliott, Berger, Stehouwer, Knott and Ion) were in the PCU between October 2003 and April 16, 2004. He should have known that the names of the other eight grievors (Hutton, Dziemianko, Simon, McCutcheon, Rosete, Bangild, Mayers and Gillespie) were not even mentioned. He should have known that none of the grievors was at that point going to be charged with anything, although there may have been an indication of operational issues and a possible PSA investigation of some of the grievors on Berger‟s Team.

241. On the evidence, Fantino gave no consideration to things he could easily have discovered if he had made even a cursory attempt to obtain further information. He would have discovered that there were explanations which would have at least cast some of the 68 allegations in a different light. For example, further inquiry may have revealed at least enough about how the two PCU Teams actually operated and interacted to at least cast some doubt about Fantino‟s assumptions about how much one Team could reasonably be expected to know about the other Team‟s activities. Further inquiry would have revealed Bell‟s and Elliott‟s exemplary and (at the time for Bell) unblemished service records, and that notwithstanding the court time issue (and the criticisms alleged in the evidence) no one on the 52 Division management team ever expressed any dissatisfaction with Bell, and that neither Gottschalk nor Campbell had any actual enforcement or other concerns about Bell or Bell‟s supervision of his Team, or any concerns about anyone on Bell‟s Team. If he had been aware that it was an issue (and the evidence suggests he was not), it would have revealed that Evans accepted Bell‟s officer-in-charge explanation and had no criticism of Bell much less any information that Bell had acted improperly in any way. Further inquiry would have revealed Elliott had only been in the PCU since October 2003 and that no one had anything negative to say about him. Further inquiry would have revealed that Simon and Rosete were not involved in the Huey‟s incident because they were away on vacation, that Hutton and Bangild did not go to Huey‟s after their interviews, and that although Elliott went to Huey‟s he stayed only briefly, had nothing to drink, and in fact returned to 52 Division to sign off duty before going home.

242. I am not persuaded that time was so of the essence that some inquiry could not have been made. Much of the information was or could have been made readily available, particularly in response to a request form the Chief.

243. I am not satisfied with Fantino‟s explanation that the transfers had to be permanent and implemented immediately for investigative reasons. On the contrary, I am satisfied that the professed investigative concerns have been greatly exaggerated. It may be that there were bar owners who remained to be interviewed, but I find it difficult to credit the assertion that not transferring all of the grievors entirely out of 52 Division would have interfered with the remaining investigation – which took less than a month to complete.

244. First, all that was left to be done was bar owner interviews. After months of investigation, which included thousands of wiretap intercepts, there was no suggestion much less actual evidence that any of the grievors was involved in any alleged criminal or corrupt activity in the entertainment district. No reasonable person could have thought that anything significant was likely to come out of those interviews. In any event, Evans‟ testimony about the then Union President‟s attempt to get a “message” to bar owners that they did not have to speak to Professional Standards suggests that the mischief that Fantino was concerned about (which there is no suggestion any of the grievors had anything to do with) had probably already occurred. To the extent that there was an 69 actual concern that bar owners would not be candid with investigators because of a concern of how they would subsequently policed, that “thin blue line” concern would probably have been present in any event – regardless who was assigned to police the entertainment district.

245. Second, although Bell was instructed not to attend any licensed premises within 52 Division without first notifying Campbell or Sneddon, investigation authorization was never denied and Bell continued with the 52 Division PCU cases he had already started very much in the normal course.

246. Third, even if there was any actual merit to it, the concern was a temporary one. Operation Bar District was wound up and charges against McCormack (and others not associated with the PCU) were laid in early May 2004. Since there was no apparent connection between the Operation Bar District investigation and the alleged PSA issues, that ended any legitimate investigative basis for even temporary transfers.

247. Fourth, even if there were legitimate PSA investigative concerns (and the evidence reveals none for Bell‟s Team), those ended when that investigation apparently culminated with the PSA charges against the Berger and three grievors on his Team were brought in early July 2004. That was the very latest that any legitimate concerns about any of the 10 grievors not charged with anything remaining in or returning to the PCU ended.

248. The grievors could have been disciplined for the Huey‟s incident. They were not, but Fantino clearly focused on and used it as the culminating incident. I am satisfied that Fantino (and Gottschalk) overreacted to that incident, and that the Huey‟s incident, either alone or in all the circumstances did not give Fantino/the Employer reasonable cause to permanently transfer all of the grievors effective April 19, 2004. When Fantino made the decision to do so, he was entitled to look at the “big picture” and consider the factors he considered. He was entitled to consider issues of public scrutiny, confidence and perception, particularly when the PCU issue arose on the heels of other highly publicized police corruption events, as well as the recommendations of the Ferguson report, and policing investigative and operational needs. However, he was obliged to make his decision on the basis of other than suspicion, unjustified surmise or assumptions, or vague allegations. Further, every “big picture” is composed of parts which require appropriate consideration. The decision to completely dismantle the PCU and transfer all of the grievors entirely out of 52 Division was unprecedented and merited more careful attention and consideration than usual. Not only did the situation merit careful consideration of the actual as opposed to suspected operational and investigative need to transfer all of the grievors in the circumstances, the collective agreement required Fantino 70 to give appropriate consideration to the need to transfer the grievors on an individual basis.

249. A “where there‟s smoke there must be fire” approach to management is neither operationally sound nor sustainable in law as reasonable cause. Although the existence of smoke suggests that fire is likely, and that some action may be prudent and appropriate while the search for fire is completed, some attempt to locate the fire and a measured response is not only appropriate but necessary, particularly when the collective agreement prohibits transfers without reasonable cause. I am satisfied that Fantino did not make prudent appropriate inquiries, or give proper consideration to either the big picture, or to the relevant circumstances of the grievors. I am satisfied that the transfer response was anything but measured.

(viii) Conclusions

250. I am satisfied that the investigative justification for the transfers is exaggerated and that any such justification ended with laying of criminal charges on or about May 4, 2004 in any event. I am satisfied that what was left of the Operation Bar District investigation did not justify the total dismantling of the PCU and permanent transfers of all the grievors. I am satisfied that the potential PSA investigation did not justify the transfers. I am satisfied that the apparent concern about public perception and confidence was exaggerated and that the concern about media coverage was misplaced, and that dismantling the PCU and transfer of everyone in it did more to exacerbate than alleviate any problems in that respect by making the magnitude of the alleged corruption seem worse than it actually were or could reasonably have been believed to be.

251. I am satisfied that Fantino failed to make or cause appropriate inquiries to be made with respect to the actual operation of the PCU, the nature and extent of the operation of the two Teams, the circumstances of the individual grievors, or the Huey‟s incident – including which grievors were actually involved.

252. I am satisfied that, like Gottschalk, Fantino overreacted to the culminating Huey‟s incident which he admits was what motivated him to order the transfers to be implemented immediately, and that no small part of his intent was to punish the grievors for that incident without actually disciplining them. The suddenness and manner in which the transfers were implemented reflects the knee-jerk quality and motivation for the decision to transfer the grievors. The grievors were transferred willy nilly without warning, explanation, or notice of any allegations against them or any opportunity to respond.

253. Burks was cross-examined about the differences between and impact of voluntary versus involuntary transfers. The gist of his evidence is that whether or not any transfer or reassignment is or is perceived to be a negative career move depends on the context and surrounding circumstances – which in this case were negative. Over the Employer‟s objection (on the basis that it was analogous to evidence of general character or “general reputation in the community” and admissible as such), I allowed Fenwick to express his opinion that a police officer who is involuntary transferred from an investigative assignment to a uniform position and entirely out of the Division will be perceived within the TPS to have done something wrong, adding (sarcastically): “I‟ve never seen it happen to someone who had done something right.” Walters testified that within the police community an involuntary transfer is considered an indication that the officer has done something wrong (although in cross-examination he testified that he and a number of officers he knew at 52 Division did not make that assumption in this case).

254. I am satisfied that while the actual perception and effect of an involuntary permanent transfer will depend on the circumstances, there is a clear police world difference between that kind of transfer, and a voluntary or temporary transfers, and that an involuntary permanent transfer will at the very least be viewed with suspicion. I am satisfied that Fantino failed to properly consider the potential impact of permanently transferring all of the grievors at once and without any warning, or to properly consider whether if the grievors or any of them should be transferred at all those transfers should be temporary or permanent.

255. I am satisfied that Fantino decision to put all of the grievors “in the same boat” and immediately transfer all them, without any examination of the two PCU Teams or the grievors individual circumstances, was arbitrary and unreasonable. It also made a bad situation worse. All of the information reasonably available at the time suggested the PCU issues, particularly the corruption allegations that would have been of public interest were limited in scope, and did not extend to the entire PCU. Completely dismantling the PCU and permanently transferring everyone in it sent an entirely exaggerated and incorrect message to the media and the public. There is no doubt that the prominence of the McCormack name would have attracted significant attention when he was arrested. But could anyone reasonably believe that broad brushing and putting the grievors in the “same boat” as McCormack would have an ameliorating effect? I think not. The result should reasonably have been expected was an increased level of public concern and media scrutiny.

256. On the evidence before me, Fantino/the Employer did not have reasonable cause to permanently transfer any of the grievors on Bell‟s Team. However, the focus of the proceeding to date has been on Bell and Elliott, and the evidence with respect to the other 72 grievors on Bell‟s Team may not yet be complete. The evidence suggests that there may have been reasonable cause to transfer some or all of the grievors on Berger‟s Team. (I note that the wiretap evidence suggests that Knott was quite involved with McCormack and was aware of his gambling activities – Tabs 10, 35, 39C, 42C, 43A, 52, and may have been drinking on duty – Tab 52; that some members of Berger‟s Team may have known something about McCormack‟s activities – Tab 17; raises possible questions about Gillespie – Tab 35; suggests that Berger covered for Team members significantly late for work – Tab 48. There are also the results of the PSA proceedings to be considered.) However, the evidence is probably not complete in that respect either, and there is an issue about the extent of the impact of the PSA proceedings in that respect. I do not consider it appropriate to make any final determination with respect to any grievor other than Bell and Elliott.

257. Fantino did not have reasonable cause to transfer Bell. Fantino did not have reasonable cause to transfer Elliott, who did not even become a member of the PCU until October 2003, and about whom there was not even a hint of a suggestion or suspicion of any wrongdoing of any kind.

258. I am satisfied that Fantino/the Employer did not have reasonable cause to transfer Bell or Elliott permanently or at all. I am therefore satisfied that the Employer violated the collective agreement when it transferred Bell and Elliott effective April 19, 2004.

VII. BREACH OF SETTLEMENT ISSUE

(a) Facts

259. The Union claims, and the Employer denies, that the March 3, 2005 Settlement agreement with respect to Bell was been breached. The Employer submits that there was no actual legally significant agreement between Bell and Gottschalk as required by the terms of that settlement, particularly when Gottschalk was unaware of that settlement when he and Bell had a “hockey locker room chat” about Bell returning to the PCU. Further, the Employer submits that there was nothing in law that prevented Gottschalk from changing his mind and reneging on his understanding with Bell.

260. To reiterate for ease of reference, the Union and the Employer agreed that:

261. Bell testified that the grievors were kept informed about the settlement discussions as they moved along but that he was not present when the agreement was reached. He had told the Union that he wanted to return to his previous Detective position in the 52 Division PCU, and that Gottschalk had told him that he didn‟t see a problem with that. Bell says that the original idea was that he would move back into the PCU immediately upon returning to 52 Division but that this evolved into moving into the PCU for a 2-year term when there was an opening.

262. Bell says that when he spoke to Gottschalk again after the settlement agreement was signed Gottschalk told him that upon his return to 52 Division he would be assigned to uniform duties with E Platoon and that as soon as Detective Tracy was promoted out of the PCU he would put him (Bell) into the PCU for two years. Bell says he agreed because the result would still be that he would be back in the PCU. He denies that he agreed to return to 52 Division in a uniform position without a guarantee that he would be returned to the PCU. Bell testified that he wanted to go back to the PCU to demonstrate to everyone that he had done nothing wrong, and to counter the attacks on and re- establish his integrity and credibility. He says that a return to a uniform position in 52 Division would have made no difference in that respect or to his career aspirations.

263. Walters recalls a hockey dressing room conversation with Gottschalk about the Bell‟s return to the PCU. He says it occurred just before Bell‟s scheduled return to 52 Division – after Bell told him he was going back to the PCU. Walters testified that Gottschalk told him that he was trying to reach Bell because “things had changed” and Bell was not going back to the PCU because he (Gottschalk) had “received a telephone call from Superintendent Derry advising that he couldn‟t put Bell back into plainclothes, and that Sergeant Dave Murray would be taking over.” Walters contacted Bell and told him what Gottschalk had said.

264. Bell says that while he was away on vacation during the 2005 March Break “a friend” advised that the PCU position he believed was going to be his had been filled by someone else. Bell says he tried to contact Gottschalk about this but he was unavailable and that he spoke with Campbell instead. Bell testified that Campbell told him that he had already put Detective Murray into the PCU position, that there was no room for anyone else in the PCU, and that he would be in a uniform position in E Platoon and would not be allowed back into the PCU. He says that Campbell refused to tell him who had made that decision, and that when he reminded Campbell of the settlement agreement and told him what he and Gottschalk had agreed to, Campbell told him that maybe he could apply for a PCU position in 6-12 months.

265. Gottschalk recalls that it was in September (presumably 2004) that he had a conversation about Bell returning to 52 Division, and that he was aware that there had been labour relations discussions in that respect. He says he was not aware of the written settlement agreement, and specifically that he was not aware of the paragraph 2(a) in issue. Gottschalk says it was apparent that some of the grievors had been “casualties” of the PCU “affair”. He specifically identified Bell and Elliott as casualties, and agreed that other grievors could also be considered casualties. Gottschalk believed that some of the grievors, not including any who had been charged (with anything), should be allowed to return to 52 Division. More specifically, Gottschalk believed that Bell should be allowed back, and agrees that he didn‟t see any harm in Bell returning to the PCU. He says he wanted to help a friend restore his prestige so he told Bell he would get him back into the PCU. However, he denies that he told Bell he could return to the PCU for two years or that he envisioned a return of that length. His notion was that Bell would return to complete what would have been the balance of his tenure in the PCU, which he subsequently learned roughly coincided with the time of the transfers in issue in any event.

266. Campbell took a very different view. He was not privy to the discussions that resulted in the March 3, 2005 partial settlement. More specifically, he was not privy to the discussions that resulted in the parties‟ agreement concerning Bell‟s return to 52 Division. He says that he knew that Bell wanted to return to the PCU but that he understood it had not been confirmed that he would. In cross-examination, Campbell recalled a telephone conversation with Bell during which Bell indicated he thought he was going to return to the 52 Division PCU. Campbell testified he told Bell that he would only allow Bell back into the PCU if he was ordered to do so because, he says he told Bell, he had had his three years in the Unit and new Detectives had already been selected for the position. Campbell acknowledges that Bell told him that he was looking to “retrieve” his reputation, but that did not affect his view of the matter.

267. Gottschalk told Campbell that Bell had approached him about returning to the 52 Division PCU, and that he didn‟t have a problem with that. Campbell considered that inappropriate because they had “just finished” the selection process for the reconstituted PCU, Bell‟s time in the PCU would have been up in April 2004 in any event, and there were “50” other Detectives who should have the opportunity and Bell could apply for a position in the PCU “like everyone else”. Gottschalk‟s explanation that Bell had been a casualty and that “I owed him a couple of months back” did not sway Campbell. After Campbell and Gottschalk discussed the logistics of the situation and whether it was “right” to bring Bell back to the PCU, and Gottschalk “sought counsel from my boss” Derry, Gottschalk agreed with Campbell that it would not be prudent to return Bell to the PCU. Gottschalk does not recall what Derry said to him. 75

268. Bell testified that he was transferred back to 52 Division on March 28, 2005 and came in early on March 29 in order to speak to Gottschalk. He says that Gottschalk apologized for having to renege on their agreement because he had received a telephone call from “someone above him”, who he didn‟t identify, and was told that Bell was not allowed back into the PCU. He says Gottschalk told him he felt someone had gone “behind his back” in that respect but wouldn‟t say who he thought it was. Gottschalk testified that although he felt badly and apologized to Bell for reneging on his promise, he told Bell that he was not going to return him to the PCU. In cross-examination, Gottschalk agreed that Bell “had a deal” and that is why he apologized. Although he admits he was influenced by Campbell and Derry, Gottschalk emphasized that this was his decision, based on what he ultimately believed was in the best interests of 52 Division as an organization.

269. Disappointed, Bell was in the result assigned to a uniform E Platoon when he returned to 52 Division. Bell testified that this caused him to lose confidence in 52 Division management, and to doubt that he would be “protected” if an “incident” occurred. He therefore immediately resurrected a transfer application from 11 Division to the Fraud Squad which had been in process when the March 3, 2005 settlement agreement was reached. He asked Gottschalk to approve the transfer if the Fraud Squad position was still available, which it was. Gottschalk says, and Bell agrees, that Gottschalk facilitated this request and on April 4, 2005, mere days after he returned to 52 Division, Bell moved to the non-uniform investigative Fraud Squad position he still held when he testified. I note that the formal transfer document (Exhibit #8) used for the purpose flows from the application Bell made in February 2005 prior to the March 3, 2005 settlement agreement and shows Bell moving from 11 Division to the Fraud Squad. Although inaccurate (since Bell was officially at 52 Division by that time), I am satisfied that nothing is to be made of this, and that it was used to expedite Bell‟s request to move him to the Fraud Squad without requiring him to make a new transfer application. (However, it does raise questions about the accuracy of TPS paperwork.)

270. The Unit Commander of the Fraud Squad who approved the transfer from that end was Staff-Inspector Crawford, the same Crawford who had previously been an Inspector at 52 Division while Bell was in the PCU, and who testified as aforesaid. The Fraud Squad is located in the Headquarters building on College Street – in 52 Division‟s geographical territory.

271. Gottschalk acknowledged that most officers try to follow a career path that reflects their policing interests. He also acknowledged that he tries to accommodate an officer‟s interests and career path as part of the transparent succession policy, but says 76 that that is not always possible. Gottschalk testified that by then at least he was aware that Bell‟s primary interest was in investigative work, and that that is why he facilitated Bell‟s move to the Fraud Squad after he decided he would not keep his promise to return him to the 52 PCU. Bell agreed in cross-examination that as it turned out the move to the Headquarters Fraud Squad was a career step forward, adding it makes his resume look better than the PCU assignment alone would. In re-examination he maintained that he has nevertheless suffered an economic loss because in the Fraud Squad he works straight days so there is no shift bonus, and there is no court time and little overtime available in that assignment.

(b) Determination

272. A settlement agreement is a contract. A fundamental principle of contract interpretation is that in the absence of ambiguity (and none is alleged) the words used must be given their plain and ordinary meaning, unless that leads to a legally absurd result or context suggests a different meaning.

273. That settlement agreement provided that Bell would be returned to a Sergeant or Detective position “as shall be agreed to” by Bell and Gottschalk. The settlement was a “deal to make a deal”. It did not provide that Bell would be returned to the position Bell and Gottschalk had agreed to, or specify that Bell was to be returned to a detective position or even to the PCU. Perhaps Bell and the Union felt the prior understanding between Bell and Gottschalk made it unnecessary to be more specific, but the fact remains that the settlement contemplated an unspecified future agreement between Bell and Gottschalk.

274. I am satisfied that the parties to the collective agreement and the settlement delegated the authority to make the agreement contemplated by the settlement to Bell and Gottschalk. The settlement provided that Bell was to be returned to a 52 Division Sergeant or Detective position to be agreed to by Bell and Gottschalk, not by Campbell, Derry, or anyone else on the Employer side of the table – including the Chief. The Employer and all of its privies, agents and employees, including Campbell, Derry and the Chief, were bound by the settlement agreement to leave the decision up to Bell and Gottschalk. However, there is nothing in the settlement or otherwise that precluded Gottschalk from consulting with or seeking advice from anyone. He was entitled to discuss the matter with Campbell and Derry. But the decision was to be his alone.

275. Two questions arise. The first is a two part question: did Bell and Gottschalk make an agreement as contemplated by the settlement between the parties; and if so, what was that agreement? Second, also in two parts, is: did Gottschalk renege on the 77 settlement agreement and was he entitled to do so? This raises a possible collateral question; namely: was Gottschalk unduly or improperly influenced in his “decision” not to reinstate Bell as a detective in the 52 Division PCU?

276. I am satisfied that Bell and Gottschalk had an informal discussion in which Bell indicated that he wanted to return to the 52 Division PCU and Gottschalk said that he didn‟t see a problem with that. Bell and Gottschalk both considered that they had a “deal” which would have seen Bell return to 52 Division as a Detective in the PCU before the March 3, 2005 settlement Memorandum was signed. Notwithstanding Gottschalk‟s testimony to the contrary, I prefer Bell‟s evidence and am satisfied that the understanding was that Bell would return for a 2-year term when there was an opening in that position (which they both assumed would occur reasonably quickly). Given Bell‟s motivation it would have neither made sense nor achieved his objective to agree to return for an indeterminate period or to finish out the brief remaining period of a tenure he believed did not apply to him, and Gottschalk‟s belief that Bell was a casualty of the PCU “affair” and his desire to help his friend restore his prestige suggests that he at least acquiesced to Bell‟s wishes in that respect.

277. The previous understanding or agreement between Bell and Gottschalk was not effective for purposes of the settlement because it preceded the signed Memorandum. However, I accept Bell‟s assertion that he confirmed his agreement with Gottschalk in a conversation after the settlement was signed. Gottschalk does not deny that this second conversation occurred. It is not clear whether Gottschalk was actually aware that the settlement was signed when that had this second conversation. He says he was not aware of the actual settlement agreement and specifically not of the provision in issue. However, Gottschalk admitted he was aware of the settlement discussions, and I consider it more likely than not that he knew at least the gist of the settlement with respect to Bell when they had their discussion after the Memorandum was signed.

278. It is not clear when Bell and Gottschalk had their ratification conversation. However, I consider it more probable than not that it was before Gottschalk told Campbell that Bell would be returning to the PCU and Campbell objected, and before Gottschalk says he consulted with his “boss” Derry. I am therefore satisfied that Bell and Gottschalk had their second conversation after the settlement Memorandum was signed, and that they in effect ratified their pre-settlement agreement that Bell would be returned to a Detective position in the 52 Division PCU for an two additional years.

279. There is no doubt that that Gottschalk reneged on the agreement. He admits it. I am satisfied that Gottschalk changed his mind and reneged on his agreement with Bell 78 after he and Bell had ratified their pre-settlement agreement. I am satisfied that he was not entitled to do so unilaterally, whatever his second thoughts or motivation.

280. Even if I am wrong about any of this, I am not satisfied that Gottschalk‟s decision not to return Bell to a Detective position in the PCU was his own.

281. It is clear that Campbell was strongly opposed to returning Bell to the PCU. Although I am satisfied that Gottschalk considered and was influenced by Campbell‟s objection, Campbell was entitled to the views he expressed. Having regard to their relative positions and Gottschalk‟s subsequent resort to Derry, I am not satisfied that Gottschalk was unduly or improperly influenced by Campbell in that respect.

282. However, it is apparent that Gottschalk was influenced by what Derry, his superior officer in the chain of command, said. Walters testified that Gottschalk told him that Derry said that he couldn‟t put Bell back not the PCU. There is nothing in Walters‟ testimony or elsewhere that suggests that he is anything other than a credible and reliable witness on the issue. Bell testified that Gottschalk told him that “someone above him” told him that Bell was not allowed back into the PCU. Gottschalk cannot recall what Derry said to him and, but admits he was influenced by Derry. However, Gottschalk insists that the decision not to allow Bell back into the 52 Division PCU was his alone. Derry did not testify, and there was no suggestion that he was unavailable to do so. I consider it appropriate to draw a negative inference in that respect.

283. Bell‟s evidence rings true on the point, and is consistent with both Walters‟ evidence and with what probably occurred. On the other hand, Gottschalk‟s bald denial of undue influence rings hollow, particularly in the absence of corroborating testimony from Derry.

284. Accordingly, I am satisfied that it is more probable than not that Gottschalk was unduly and improperly influenced to not return Bell to the 52 Division PCU, whether or not he was actually directed not to so. I am satisfied that that is so even if there was no agreement between Bell and Gottschalk within the meaning of the settlement agreement (in which case Gottschalk was unduly influenced to not make an agreement authorized by the settlement that he was clearly willing to make).

285. I therefore find that the Employer has breached the March 3, 2005 partial settlement agreement insofar as it relates to Bell.

VIII. DEFAMATION

(a) The Parties‟ Positions

286. The Union submits that this case is all about retrieving the grievors‟ reputations and obtaining damages for what happened. The Union asserts that the transfers themselves were defamatory of the grievors, and submits that Fantino‟s April 19, 2004 press release and press conference statements defamed the grievors because they implied that all members of the PCU to be corrupt.

287. The Employer does not plead the defence of justification in response to the defamation claim. It relies on the defences of qualified privilege and fair comment. Mr. Hines submits that Fantino‟s April 19, 2004 statement to the press did not demonstrably refer to all of the grievors, and that it was in any event made in the public interest and with due regard to the ongoing investigation and potential criminal proceedings, and the rights of all concerned, including the grievors.

288. Mr. Hines submits that the evidence reveals that the calls to Bell began before the press conference at which the words complained were spoken and points out that the grievors did not make any claim against any of the newspapers who published the statements complained of, either in court or otherwise.

(b) Comment

289. In my October 23, 2006 Preliminary Decision #3 I wondered how the courts thought the normal grievance arbitration process would cope with complex and resource taxing defamation or other tort claims. However regrettable or ill-advised it may appear to some arbitrators to be, there is no doubt that if the essential character of a tort claim is factually and functionally connected to the operation of a collective agreement it must be litigated under the grievance and arbitration provisions of that collective agreement. I am convinced that the law has taken a wrong jurisdictional turn. It is “essential” to remember that collective agreements are about individual employment rights and obligations subsumed within a collective of bargaining unit employees who are represented by a union which has an independent status and set of rights and obligations – and on the employee side of the labour relations divide, control over the collective agreement and (usually) over the grievance and arbitration procedure, and therefore over whether a collective agreement claim proceeds. Though I am tempted to comment further, this is neither the time nor the place to do so. As I determined in Award #3, I am constrained to follow the dictates of the Supreme Court of Canada (and see also, Giorno v Pappas (1999) 42 O.R. (3d) 626 (C.A.) in which the Ontario Court of Appeal held that the courts had no jurisdiction to deal with 80 a defamation claim because its essential character was covered by a collective agreement and had to be pursued under that collective agreement).

290. The tort of defamation is the communication by spoken or written word of falsities which tends to damage a person‟s reputation. The law of defamation protects a person‟s reputation from being sullied by false statements or innuendo of fact or opinion.

291. The test for the necessary elements of the tort of defamation is an objective one. Just as a complainant is not required to prove intent to do harm (other than to prove malice if that is an issue – see below), whether he feels personally insulted or his feelings are hurt is irrelevant. The test is whether the statement complained of objectively tends to harm the reputation of the complainant in the eyes of ordinary, reasonable, or “right- thinking” people in the community generally. The question is what the mythical objective “reasonable man” acquainted with the circumstances would have thought. It is a kind of “everyone knows” test, and is a matter for the judge (or arbitrator) and (in a civil trial) jury to decide. It does not require that anyone testify to what they understood from the publication. There is no reason why the approach taken to defamation by the courts is not equally applicable to the issue in a grievance arbitration proceeding.

292. Defamation is a strict liability tort. Once the essential elements of the tort are established damage to reputation is presumed and actual harm need not be proved. The elements of the tort of defamation are:

(a) a false statement of fact or opinion that is false,

(b) which is “published”, by speech, in writing, or by way of picture, sign or electronic broadcast, to at least one person other than the complainant,

(c) which, on the plain and ordinary meaning of the published words, or innuendo or reasonable inference reasonably drawn from them, in the context of all the circumstances, are likely to be understood by objective reasonable persons of normal intelligence with ordinary general knowledge and worldly experience, to be of and concerning to the complainant

(d) and tend to harm reputation of the complainant in the eyes of such persons

293. The tort of defamation has always applied to words spoken or otherwise published of individuals. It is conceivable that in today‟s world acts without words could have a 81 defamatory effect. However, I was not referred to any cases in which the courts have found an act to be defamatory and I am not aware of any. In the absence of any authority, or even any developed argument of principle that extends the tort to acts, I am not prepared to do so. Although the law continually evolves (as demonstrated by the Weber, supra, jurisprudence, and the Supreme Court of Canada‟s companion decisions in Grant v. Torstar, supra, and Quan v. Cusson, supra), and I am willing to push the labour relations envelope if persuaded that is appropriate, I am not prepared to push the tort law envelope. Accordingly, the defamation claim is limited to the press release that Fantino read at the news conference on April 19, 2004 (paragraph 48, above).

(d) Irrelevancies

294. I note that the fact that the grievors did not initiate civil proceedings against any of the print or broadcast media which published the statements in issue is irrelevant. My job is to deal with the claim made in the grievance. (Although the point does raise potentially interesting procedural or Weber issues in a case in which a union pursues a defamation claim against both the employer and media or other entities unrelated to the employer.)

295. Because defamation is a strict liability tort, the fact that Bell began to receive calls about the transfer, suggesting that that and not Fantino‟s statement was the problem, is also irrelevant. I am satisfied that Fantino‟s public statement is inextricably intertwined with his decision to transfer the grievors.

(e) Fantino‟s Explanation

296. Fantino testified that he didn‟t know how, but the media almost immediately became aware of the McCormack‟s suspension and his decision to disband the PCU, resulting in what he characterized as a media frenzy replete with rumours, references to unnamed sources and misinformation. He felt that the matter had “developed a life of its own” and that “we felt we had to say something to set the public record straight as far as we could” without compromising the ongoing investigation or anyone‟s reputation. Fantino says making no comment would have made no sense, and although that was discussed it was not considered to be an option or the right thing to do because it would have resulted in more speculation, misinformation, rumours and innuendo. Fantino wanted to address the public through the media in order to emphasize that the issues were being dealt with, that there was an investigation, that reasonable steps had been taken and “we were moving forward”, and that this was an isolated incident which was being looked after. Fantino testified “we” also wanted to ensure “our own people knew they were not in any way being brought into disrepute by rhetoric and rumours”. He says he 82 was not more precise than he was in his statement to the press on April 19, 2004 because neither he nor the investigators could say anything definitive. He felt it would have been unfair and would have raised more questions if he had identified either one of the two Teams or individual officers with respect to whom there was specific information, and he wanted to make it clear the investigation was continuing. Fantino says that the media was looking for names and particulars but he wanted to make it clear the investigation was ongoing, and both that he didn‟t want to “broad brush” everyone and that “everyone was in the same boat”.

297. Mr. Hines ended his examination-in-chief of (then) Commissioner Fantino by taking him through the media statements which remain in issue. In cross-examination, Fantino testified that he felt compelled by the media reports the previous Thursday (April 15 – the day the search warrants were executed) and Friday, and by unspecified internal rumours, to issue the April 19, 2004 press release and hold the press conference that day. He reiterated that he wanted to demonstrate to the public that things were under control and to prevent the circulation of rumours and misinformation. He also testified in cross- examination that “in his mind” there were inferences and information about alleged criminal activity of 52 Division PCU members other than McCormack. Once again, he did not specify what these were.

298. Fantino testified that he believed the statements at paragraphs [1], [2], and [3] of the press release (paragraph 48, above) to be true then and believes them to be true now. In paragraph [5] he was referring to months earlier and says that paragraphs [6] and [7] are factually accurate, and that paragraph [8] expresses what he anticipated and intended. When Mr. Chercover suggested in cross-examination that his statement in paragraph [6] would cause anyone reading it to think that everyone being transferred was guilty of something, Fantino responded: “Not necessarily because the next line [paragraph [7]] indicates the investigation continues.” He added that: “I had no way of gauging reaction and we were limited in what we could say, but we had to say something based on the information we had.”

299. Fantino also explained in cross-examination that his statement at paragraph [14] was a “comment”, and a message that he repeated often. When Mr. Chercover followed up by asking whether people would think those issues were involved, Fantino‟s reply was not responsive. He simply repeated his assertion (for which I have already concluded there was no reasonable basis) that: “We were dealing with a dysfunctional, unsupervised, unaccountable unit.”

300. Fantino acknowledged that he never followed up with a media release regarding the progress of the investigation, and more specifically that he did not publicize the fact 83 that any of the grievors had been exonerated. This is notwithstanding that after initially denying it, he acknowledged that discredited allegations can persist and “stick” to people a cloud of suspicion, and could have followed the grievors after they were cleared in this case.

(f) The Element of Publication

301. There is no dispute that Fantino published the words complained of by causing the press release containing them to be distributed, and by reading the press release at a press conference on April 19, 2004. There is no dispute that Fantino intended the words complained of to be widely publicized in the media, and that that occurred.

(g) Do the Statements Complained of Relate to the Grievors?

302. Identification can be, and in this case is, an issue. As I wrote in my October 23, 2006 Preliminary Award #3 in that respect:

58. The issue of identification is a difficult one. … an essential element of defamation is that the words complained of were published “of the plaintiff”; that is, that they referred to, or were reasonably understood to refer to the complainant. Where as in this case no one is named, the objective test is whether the words complained of would lead persons reasonably acquainted with the complainant to conclude that he was the person referred to. …

59. Defamation is a tort that is personal to individuals. A class or group cannot be defamed as such. A general reference in a defamatory statement to a class or group is not defamatory of individual members of the class or group. The further general rule is that defamatory words that refer to a large group or class cannot give any individual member a cause of action. In order for a defamatory statement that is made of a class or group to give rise to an individual cause of action for any member, the statement must be capable of being reasonably understood to refer either to every member of the class or group, or to a particular member or members. The complainants must be identified somehow, if not by name then by necessary inference. In the seminal case of Knupffer v. London Express Newspaper, supra, Viscount Simon L.C. put it this way, at page 119:

Where the plaintiff is not named, the test which decides whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action.

And in the same case, at page 121, Viscount Simon went on the write that:

There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language be regarded as capable of referring to the appellant? The 84

second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise, and where the trial judge went wrong was in treating evidence to support identification in fact as governing the matter, when the first question is necessarily, as a matter of law, to be answered in the negative.

Also at pages 121-122, Lord Atkin wrote that:

The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that words are published of two or more persons if they are proved to be published of him, and it is irrelevant that the two or more persons are called by some generic name.

60. Without specific reference to Knupffer v. London Express Newspaper, supra, the Supreme Court of Canada in Fraser v. Sykes, supra in effect adopted and applied the two question test set out by Viscount Simon. …

61. Where the class or group is relatively small, it is more likely that a defamatory statement that refers to the group can reasonably be understood to refer to all of its members, thereby giving all of them individual causes of action for defamation. The point is illustrated in the trial judge‟s decision in Elliott v. C.B.C., supra. The plaintiff in that case brought an action for defamation and other torts on behalf of 25,000 surviving Canadian members of the Allied Bomber Command. In striking out the defamation claim because a group of 25,000 could not be defamed and no individual member of the group had been singled out, and that the defamation was therefore not “of or pertaining to any individual”, the court relied in part on the United States‟ decision in Neiman-Marcus v. Lait (1952) 13 R.F.D. 311 (S.D.N.Y.). In Neiman-Marcus v. Lait, supra, the statements complained of in a book that referred to certain department stores were that “most of the salesmen were fairies”, and that some of the “salesgirls” were “call girls”. On a motion to strike, 15 out of a staff of 25 salesmen (i.e. the small group) were allowed to continue with their libel action. Even though the word “most” was used, the group was considered to be sufficiently small to infer that each member was referred to, and that any individual member could sue. The 30 female salespeople were part of a group of 382 (i.e. the large group). There action was struck because the group that they were part of was too large to permit any reasonable inference that any individual member was “infected” by the defamation. (See also, Aiken v. Ontario (Premier), supra.)

62. Whether a particular class or group referred to in a defamatory statement is sufficiently small to permit individual members who have not been named to sue for defamation will depend on all of the circumstances, and engages a concept referred to in some court decisions as the “intensity of suspicion”. In Butler v. Southam Inc., supra, the Nova Scotia Court of Appeal picked up this concept from a 1934 Columbia Law Review note, which in the Court‟s view was no more than a restatement of the approach in Knupffer v. London Express Newspaper, supra. This concept suggests what the Court referred to as the “common sense” proposition that the definiteness of the membership or composition of a group, and its degree of organization will intensify the suspicion that statements made about the group refer to individual members of that group. To put it another way, the larger and more poorly defined and organized the group, the less likely it is that any individual member will be personally injured by a defamatory statement that refers only to the group, and vice versa. 85

63. Applying this analysis to the Union‟s pleadings, I find that consisting as it did of some 16 [sic] police officers, the 52 Division plainclothes unit was a relatively small class or group. It was a highly organized group. Although the individuals or group as a whole may not have been highly visible in the general community, subject to evidence in that respect it seems likely that reasonably informed people, particularly within the community “serviced” by the unit, could and would identify the individual members of the group. Without hearing the evidence, I cannot say that a defamatory reference to the plainclothes unit is incapable of supporting a reasonable conclusion that the individual members of the unit were being referred to. As a general matter, it is therefore inappropriate to dismiss at a preliminary stage the defamation claims being made on the basis that the statements complained of do not sufficiently identify the grievors.

…

303. The question is whether the words are capable of being understood, by the public at large or people who know the grievors, as referring to the individual grievors. As indicated above, although a class of persons cannot be defamed as such, it is clear that individuals who are not identified can nevertheless be defamed by reference to a class to which they belong if reasonable people who know them would conclude that the words were spoken of them (see also, Lennon v. Ontario (Premier), supra).

304. Fantino did not refer to any of the grievors by name in his April 19, 2004 statement. However, he did specifically identify “the plainclothes unit at 52 Division” and state that it “has been disbanded and the officers transferred elsewhere”. Consisting as it did of 15 officers (i.e. McCormack and the 14 grievors), the 52 Division PCU and the individual officers in it were readily identifiable within at least the TPS and entertainment district communities, as well as by their families, friends and associates. The only reasonable inference, and in fact the case was, that all of the officers the PCU had been transferred. I am satisfied that Fantino‟s statement would have led reasonable persons acquainted with the grievors or any of them to believe that Fantino was referring to every single member of the PCU. Indeed, that is the only reasonable inference.

(h) Were the Statements Complained of Defamatory?

305. With the exception of paragraph [4] (“As soon as I became aware of these allegations, I took immediate action.”), there is nothing in Fantino‟s April 19, 2004 statement that is untrue. The issue is innuendo (the indirect or subtle implications of what Fantino said).

306. There is nothing incorrect or improper in the introductory f paragraphs [1], [2] or [3] of the statement. Although paragraph [4] is not accurate on the evidence it is not 86 arguably defamatory of the grievors. There is nothing in paragraph [5] that impugns the reputation of any of the grievors.

307. The focus of the defamation claim is paragraphs [6], [7], [8] and [14] of Fantino‟s April press release and statement to the media, which must of course be read within the context of the statement as a whole. To repeat for ease of reference, those statements, which must be read together in the context of the rest of the publication and the occasion, were as follows:

[7] The investigation continues.

[8] I anticipate that criminal charges and Police Services Act charges will be laid. We will release the details of charges as they occur.

…

[14] I will not tolerate any unprofessional behaviour, corrupt practices, compromises to the moral and ethical code of conduct demanded of the policing profession, abuses of power and authority, racial intolerance or discriminating conduct, on or [off] the job.

308. Paragraphs [6], [8] and [14] are full of innuendo, the implication being that everyone in the PCU was under suspicion and probably guilty of something. Rather than ameliorating the insinuation, paragraph [7] suggests “and we are going to find out more about that”. Coming hard on the heels of the otherwise innocuous statements in the first five paragraphs, I am satisfied that the reasonable person would understand the words in paragraph [6] to mean that Fantino had ordered an internal investigation into very serious allegations regarding the honesty, integrity and professionalism of the PCU, and that it was as a result of that investigation that the PCU had been disbanded and all of the officers in had been transferred elsewhere. Although Fantino stated in paragraph [7] that “the investigation continues”, his statement in paragraph [6] suggested that he already had sufficient information to disband the Unit and transfer all of its members. Going on to state in paragraph [8] that he anticipated criminal and PSA charges would be laid would reasonably have been understood to mean that the transfers were only the beginning, and that Fantino expected that some sort of charges would be laid against the transferred officers; that is, the grievors. After all, the reasonable person would think: why would they have been transferred if they had done nothing wrong? The reasonable person would believe that Fantino would not take the extraordinary steps of disbanding the PCU and transferring all of the officers in it, and publicly announcing both that, and 87 that he expected charges to follow, unless he had good reason to believe they had all done something wrong.

309. Finally, it may be that paragraph [14] was a “boiler plate” message that Fantino repeated often, but in the context of the statement as a whole it was more likely to be viewed as an assertion that the grievors were guilty of the “unprofessional behaviour, corrupt practices, compromises to the moral and ethical code of conduct demanded of the policing profession, abuses of power and authority, racial intolerance or discriminating conduct” that Fantino stated he would not tolerate, and that that is why the PCU was dismantled and the grievors all transferred. That is, the reasonable person would have believed that whatever the transferred officers had done wrong related to their honesty, integrity and professionalism.

310. I don‟t know why anyone would be surprised that the sudden complete dismantling of a large police unit in what is probably the most prominent and certainly the most visible TPS Division would attract public attention and a media frenzy. I have no doubt that Fantino felt pressure to make a public statement. However, sometimes it is better to say nothing, particularly if, as Fantino admits and is in fact the case, one has neither sufficient information, nor anything definitive to say. But feeling compelled to make a statement, Fantino could have chosen his words more carefully. The statement that he made raised more questions (like why was everyone in the PCU transferred), created more suspicion (namely, that everyone in the PCU was dirty), and did more to fan the media frenzy (Exhibit #53) than silence would have. Fantino testified that he felt it would have been unfair and raised more questions if he had identified one of the Teams or individual grievors with respect to whom there was specific information. The problem with that assertion, and the fact is, that he had no specific information with respect to anyone other than McCormack – so he couldn‟t identify anyone else by name. He had no other names to give. Although Fantino testified that he wanted to ensure that the grievors were not brought into disrepute by rhetoric and rumours, that is precisely what his statement did. Finally not only are his statements that he didn‟t want to “broad brush” everyone and that “everyone was in the same boat” inconsistent, his statement and the innuendo in it did just that; namely, broad brush everyone in the PCU and put everyone into the same boat with McCormack – who had already been suspended and the subject of media reports.

311. Fantino could have stressed that there was no suggestion that anyone other than McCormack would be charged or had done anything wrong, and that the sole reason for the (temporary) transfers to facilitate and ensure the integrity of the ongoing investigation. And if he had properly considered and implemented temporary transfers, he could have said (after his introductory statements) something like: 88

“I am not aware of any allegations or information that any member of the 52 Division Plainclothes Unit other than McCormack (whose name had already been published – Exhibit #53) has done anything wrong or acted improperly in any way. It is only to facilitate the timely and efficient completion of the ongoing investigation that we are affecting temporary administrative transfers of the other officers in the Unit. [perhaps adding that] Unless the investigation reveals matters of concern of which the TPS presently has no knowledge, those officers will be returned to the Unit to complete their assigned tours of duty upon completion of that investigation.”

312. Such a statement would not have been any more definitive but would have more accurately stated what was in fact the state of Fantino‟s knowledge and information (as opposed to his assumptions and suspicions), and would probably done more to allay suspicions and reduce questions. It would have done no more to identify the grievors than Fantino‟s statement did, but would not have associated them with any misconduct.

313. To most people, and especially to professionals, their reputation is important above all. As Cory J. put it in Hill v. Church of Scientology of Toronto, 18 O.R. (3d) 385 (Ont. C.A.; [1995] 2 S.C.R. 1130 (S.C.C.) (at paragraphs 107-108):

107 … to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation.

108 Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value. False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

Or as David Lepofsky put it in "Making Sense of the Libel Chill Debate: Do Libel Laws „Chill‟ the Exercise of Freedom of Expression?" (1994), 4 N.J.C.L. 169, at p. 197 (as cited by Cory J in Hill v. Church of Scientology, supra, at paragraph 117) reputation is the “fundamental foundation on which people are able to interact with each other in social environments”. Because a positive reputation is particularly important to public service professionals, including those who work in the justice system, it is defamatory to impute guilt of dishonest or disreputable conduct in a profession or calling (Musgrave v. Levesque Securities Inc., supra). 89

314. The insinuation in the statements complained of; namely, that Bell and Elliott had acted in a manner that was corrupt, dishonest or otherwise unprofessional was false. On the evidence presently before me that insinuation was equally false insofar as it related to Hutton or anyone else on Bell‟s Team. But there may be further evidence in that respect. There is a clear distinction between the conduct of Bell‟s Team and Berger‟s Team, and I consider it inappropriate to comment further in that respect until all the evidence is in. However, I am satisfied that the innuendo in Fantino‟s press release and statement to the media on April 19, 2004 was defamatory of the grievors Bell and Elliott.

315. “If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.” (per McLachlin C.J. in Grant v. Torstar Corp., supra, at paragraph 29)

(i) The Employers‟ Defences

316. There are a number of long recognized defamation defences. One is the truth (i.e. the plea of “justification”). No one can be heard to complain about the publication of a statement that is true – however harmful the statement may be to his reputation. The other defences are based on context and recognize that there are circumstances which as a matter of societal welfare and convenience justify less constraint on communications between individuals or to the public at large. These “privilege” defences permit the publication of prime facie defamatory statements in societally appropriate circumstances. These well established defences are absolute and qualified privilege, and fair comment.

317. In this case, the Employer relies on the defences of qualified privilege and fair comment. There is a degree of overlap between the two defences.

318. A new privilege defence has recently been recognized in Canada. In the companion decisions in Grant v. Torstar, supra, and Quan v. Cusson, supra, (released after the hearing concluded but which came to the parties‟ attention with an opportunity to comment), the Supreme Court of Canada recognized the new defence of responsible communication on matters of public interest. This “responsible journalism” or “fair reporting” defence contains elements of the qualified privilege and fair comment defences. It is a media defence, and as such and to the extent that it differs from the long established defence of qualified privilege, is not available to the Employer in this case.

Qualified Privilege

319. Qualified privilege and fair comment are affirmative defences. That is, they apply to excuse statements proved to be defamatory of the complainant(s). As affirmative defences, they must be established by the “defendant”, in this case the Employer.

320. “Qualified privilege” is grounded in special relationships characterized by a professional, social or moral duty to communicate and a reciprocal interest in receiving the communication. The defence attaches to the occasion of the communication. Qualified privilege operates to protect untrue defamatory statements fairly made without actual malice in the discharge of a public or private duty, or for the purpose of pursuing or protecting a private duty, to an audience that has a corresponding duty to receive it.

321. In RTC Engineering Consultants Ltd v. Ontario, supra, Laskin J.A. pointed out (at paragraph 14) that the defence of qualified privilege operates to permit a defamatory statement to be made without attracting liability. He went on to explain that the defence attaches to the occasion when a defamatory statement is made, and not to the statement itself, and went on to explain (at paragraphs 15, 16 and 18) the rationale for the defence and how its protection can be lost as follows:

15 The rationale for the defence is that the interest sought to be protected by the statement is considered important enough to justify a limited immunity from an action for defamation. Immunity is limited because it extends only to statements that are germane and reasonably appropriate, and that are made honestly and in good faith or without malice. Thus, the defence of qualified privilege reflects a balancing of competing interests: the interest the maker of the statement seeks to serve and the interest in reputation that the defamed party seeks to protect.

16 At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. A defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it. "Interest", however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

…

18 Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term "qualified privilege" itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not 91

germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. See Hill v. Church of Scientology, supra, and Douglas v. Tucker, [1952] 1 S.C.R. 275.

322. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks about the complainant which may in fact be untrue and defamatory. The defence of qualified privilege permits persons in positions of authority or trust to make or repeat statements that would be considered defamatory if someone else made them. The conduct of the “defendant” is only relevant after the privilege has been established (Grant v. Torstar, supra), if malice is alleged.

323. As Laskin J.A. noted in RTC Engineering Consultants Ltd v. Ontario, supra, qualified privilege is just that: “qualified”, not absolute. It does not apply if the limits of the duty or reciprocal interest are exceeded. The information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given. The key question is whether the communication taken as a whole relates to a matter of public interest, in the sense that it is a matter which affects that public at large (which is not necessarily the whole public) regardless of the degree of actual public interest (Grant v. Torstar, supra). That is, it applies to matters that invite public attention or about which there is substantial public concern because it affects public welfare or attracts considerable public notoriety or controversy.

324. The objective test for qualified privilege is whether persons of ordinary intelligence and moral character, or the majority of right-minded persons, would consider there to be a duty to communicate the information to those to whom the words were published. In Leenen v. Canadian Broadcasting Corp., supra, at paragraph 108, Cunningham J. cited the House of Lord‟s articulation of the reciprocity test in Reynolds v. Times Newspapers Ltd. [1999] H.L.J. No. 45 (QL), at paragraph 13, as follows:

There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

At paragraph 109, Cunningham J. continued with what he called “instructive” comments as follows:

[109] The trier of fact, therefore, must carefully consider the position of both parties when deciding whether an occasion is privileged. A court must take into consideration all circumstances in first determining whether a duty existed in the conveyor of the 92

information and, correspondingly, whether there was an appropriate interest or right to know the information being conveyed. In order to assist trial judges, Lord Nicholls suggested some matters which ought to be taken into account. These are found at para. 57 [of Reynolds v. Times Newspapers Ltd., supra] as follows:

(a) The seriousness of the allegation. The more serious the charge the more the public is misinformed and the individual harmed, if the allegation is not true.

(b) The nature of the information, and the extent to which the subject-matter is a matter of public concern.

(c) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

(d) The steps taken, to verify the information.

(e) The status of the information. The allegation may have already been the subject of an investigation which commands respect.

(f) The urgency of the matter. News is often a perishable commodity.

(g) Whether comment was sought from the defendant. He may have information others do not possess or have not disclosed. An approach to the defendant will not always be necessary.

(h) Whether the article contained the gist of the plaintiff's side of the story.

(i) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

(j) The circumstances of the publication, including the timing.

325. It is apparent that good faith is an essential element of the defence of qualified privilege and so the defence is defeated by proof that the dominant motive for publishing the statement is actual or express malice. Malice is commonly understood in the popular sense as spite or ill will, but for defamation purposes includes any indirect motive or ulterior purpose that conflicts with the duty or mutual interest of the occasion. Malice may also be established by showing that the defendant spoke dishonestly, or knowing that the statement was untrue, or with reckless indifference to or disregard for the truth.

326. Honest belief is not sufficient to constitute good faith unless the belief is based on reasonable grounds (Teskey v. Canadian Newspapers Co. (1989) 68 O.R. (2d) 737 (Ont. C.A.) after a proper and thorough investigation of the facts, which is for the trier of fact to determine. An irresponsible statement is by definition malicious.

Fair Comment

327. As the label suggests, “fair comment” applies to a statement of opinion – not to statements of fact, although the published opinion must be based on provable facts. For something to constitute fair comment in Canada, the comment must be a fair and honest expression of opinion, based on known and provable facts and made without malice, on a matter of public interest. Although the statement may infer facts, it must be obvious that the comment is an opinion and does not purport to be a fact (Cherneskey v. Armadale Publishers Ltd. [1979] 1 S.C.R. 1067 (S.C.C.), and must satisfy the objective test: “Could a reasonable person honestly express that opinion on the proved facts.”

328. Defence of fair comment is similar to the defence of qualified privilege. As the trial judge put it in Leenen v. Canadian Broadcasting Corp., supra (at paragraphs 121- 125):

(i) The law regarding the defence of fair comment

[121] The defence of fair comment protects words that are prima facie defamatory provided they are comments based on true facts made honestly without malice with reference to a matter of public interest: The Law of Defamation, supra, at p. 15-2. The defence of fair comment has been identified as the repository within the law of defamation of the values of freedom of speech and it must be interpreted and applied in that light. As Lord Denning stated in Slim v. Daily Telegram Ltd., [1968] 1 All E.R. 497 at p. 503, [1968] 2 Q.B. 157 (C.A.):

…the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements.

[122] The defence of fair comment illustrates just how highly our society values the freedom of expression. As Bellamy J. stated in Myers v. C.B.C., supra, at paras. 108-09:

…no matter how prejudiced, extreme or biased the opinions are, the only issue is whether a fair-minded person could hold them based on the proved facts:

The opinion need not be fair in any objective sense. There is no requirement that the criticism be impartial and well-balanced… There is no cause to complain merely because the commentator is obstinate, biased, prejudiced, or wrong, or the comments are rude, severe, extravagant, exaggerated or even fantastic, or they are expressed in colourful language or the tone is unnecessarily discourteous. A court generally will not consider whether the comment is well-founded or reasonable: Brown, supra at p. 15.4.

The long arm of the defence of fair comment highlights the importance we ascribe to freedom of expression in our society We place a high value on this freedom and recognize that it is not the job of the courts to tell TV producers, 94

researchers or editors how to do their jobs. While we expect responsible journalism, and arguably, especially from the CBC, there is little room for the courts to censor what they do. Reporters do not have to meet an objective standard of care in reporting. The only constraint on their freedom to make damaging comments is that their comments must be fair, in the sense of satisfying the branches of the common law defence of fair comment.

She goes on:

In this case, the proved facts of the nifedipine story are easy to access. The interview clips with the various doctors and the minutes of the HPB meeting combine to provide an account of the nature of the nifedipine debate and the spectrum of opinion. The CBC relied on these sources. In addition, the CBC relied on the audiotapes of the meeting. Looking at the proved facts, I must consider one question: Could a fair-minded person, looking at these same facts, honestly come to hold the eight defamatory opinions about Dr. Myers?

I conclude that no fair-minded person, nor indeed any reasonable person, could have come to hold the views about Dr. Myers which were conveyed in the program, given ail the facts (reported and unreported) available to the defendants. From my review of the detailed transcripts and the tapes, including the parts which were not used in the program, I find that the CBC dramatically simplified a complex medical debate by seriously mischaracterizing Dr. Myers‟ position. The CBC set him up quite unfairly as a “bad guy” in the debate.

Without any question, the same applies to the CBC‟s treatment of Dr. Leenen.

[123] Comment is a statement of opinion. It is the inference which the writer or speaker draws from facts. Assertions of fact are not protected by this defence. Comment must appear as comment; it must not be so mixed up with statements of fact that the reader or listener is unable to distinguish between the reported facts and comment: P.F. Carter- Ruck, Carter-Ruck on Libel and Slander, 5th ed. (London: Butterworths, 1997), at p. 109. Any matter which does not indicate with reasonable clarity that it purports to be comment and not statement of fact cannot be protected by the plea of fair comment: Hunt v. Star Newspaper Co., [1908] 2 K.B. 309 at p. 320, [1908-10] All E.R. Rep. 513 (C.A.). If the message of the broadcast, therefore, was one of fact, then the defence of fair comment fails. In the present case, if the words and visual images projected create a factual impression, then the defendants cannot rely upon the defence of fair comment. If the reasonable viewer takes what is broadcast to be fact, it will not be considered as comment. Thus, in the present situation where we have Ms. Wood portraying Dr. Leenen as someone who publicly supports CCBs and who argues that they are safe, she mixes up fact with comment. Even in the introduction, Dr. Brill-Edwards is spoken of as the whistleblower “who has the facts”.

[124] As to the distinction between fact and comment, MacKeigan C.J.N.S. stated in Barltrop v. Canadian Broadcasting Corp. (1978), 86 D.L.R. (3d) 61 at p. 75, 25 N.S.R. (2d) 637 (C.A.):

Here, as in Jones v. Bennett and Binham v. Pure Water, the defence founders because the words found defamatory in meaning and by innuendo are, in my opinion, not comment but are false statements of fact, with the possible exception 95

of Dr. Needleman‟s remarks which probably qualify as a mere expression of opinion. The remaining remarks state or imply as a fact that Dr. Barltrop, for a price, has given false or misleading evidence with unethical disregard for the health of the public. They assert as a fact that he was professionally dishonest. They are therefore not mere expressions of opinion, such as might have been the case had the accusers set forth substantially true facts from which dishonesty might fairly be inferred and had then expressed as their opinion that they thought he was dishonest. I must conclude that the defence of fair comment cannot succeed.

Furthermore, as Bellamy J. stated in Myers v. C.B.C., supra, at para. 89:

The key lies in determining whether a defamatory statement or broadcast is presented as an objective fact which requires no support, or whether it is presented as a comment or opinion for which supporting facts are included. Indeed, the difference can be a subtle one, since opinions are often expressed more as facts than as personal views. Regardless of how it is expressed, in order for the defence of fair comment to apply, the opinion must still be recognizable to the reasonable viewer as an opinion. To do this, the opinion must be supported by enough true facts for the viewer to see how the commentator could have reached this conclusion.

[125] Section 24 of the Libel and Slander Act, R.S.O. 1990, c. L.12 has modified the common law of fair comment. This provision adopts the objective test as to whether a “person” could honestly believe the opinion published, regardless of whether there is any proof that either the publisher or the speaker of the words in question believed them.

(j) Assessment of the Employer‟s Defences

329. I am not satisfied that the defence of fair comment has been made out.

330. Fantino was not and did not present himself to be a journalist, or social or police services commentator. He was and presented as the TPS Chief of Police and spoke with and from the authority of that position. He did not intend and would not reasonably have been perceived to be offering opinion. He made and was reasonably perceived to be making statements of fact. Since the defence of fair comment applies to statements of opinion (albeit on the basis of provable facts) the defence does not apply.

331. As for the defence of qualified privilege, I find it useful to begin my approach by reviewing the factors in Reynolds v. Times Newspapers Ltd., supra, that Cunningham J. found instructive in Leenen v. Canadian Broadcasting Corp., supra, as follows:

a. the allegation by innuendo was very serious an caused serious harm to reputation;

b. the issue was a matter of significant public concern, but the information provided was general and more emotional than informative;

c. Fantino had no direct knowledge and few if any details with respect to other than McCormack;

d. on the evidence, Fantino took few or no steps to verify the basis for the innuendo in his statements;

e. Fantino stated that there had been an investigation and that the investigation was ongoing, which lent unjustified credence to the innuendo;

f. the issue was urgent, but was made so by Fantino himself when he precipitously decided to dismantle the PCU and transfer all of the grievors without reasonable cause;

g. although no comment or information was sought from the grievors, this factor is not applicable in the circumstances;

h. not applicable

i. consistent with the innuendo, the tone was negative, and suggested that the grievors had acted in a manner that was unprofessional, corrupt, or unethical;

j. the press release and statement to the media hard on the heels of the transfers, made the situation appear dire and more serious than there was ant reasonable basis for believing it was.

332. Having regard to all the circumstances, I am not satisfied that the occasion was privileged. Fantino was under no duty to make the insinuations contained in his statements. I am satisfied that publishing words complained of on the occasion exceeded the boundaries of the defence of qualified privilege.

333. In the alternative, and in any event, I am satisfied that it was reckless and irresponsible (within the legal meaning of the terms for defamation purposes) of Fantino to make the statement he gave on April 19, 2004. I am satisfied that that whatever he honestly believed, he failed make or cause any appropriate investigation and deliberately disregarded the consequences to the grievors.

334. I am therefore satisfied that Fantino’s April 19, 2004 press release and statement to the media defamed Bell and Elliott.

335. Although it was not suggested otherwise, I note that Fantino was acting in the course of his employment when he made the defamatory statements. As his employer the Employer Toronto Police Services Board is therefore vicariously liable in that respect.

336. On the evidence before me, that is probably the case for all of the other grievors on Bell’s Team as well. However, the parties may have further evidence or submissions in that respect. Because of the distinction between the two Teams and evidence with respect to Berger’s Team, I consider it inappropriate to comment on the defamation issue as it relates to Berger’s Team until the parties indicate their intentions regarding further evidence or submissions in that respect.

IX. SUMMARY OF CONCLUSIONS

337. To summarize:

(a) I am satisfied that Fantino/the Employer did not have reasonable cause to transfer Bell or Elliott permanently or at all. I am therefore satisfied that the Employer violated the collective agreement when it transferred Bell and Elliott effective April 19, 2004.

(b) I find that the Employer has breached the March 3, 2005 partial settlement agreement insofar as it relates to Bell.

338. The grievance is therefore allowed to that extent.

XII. REMEDY

339. The parties focused there attention in argument on the merits of the issues in dispute and at least tacitly agreed that I should remain seized with the issue of remedy.

340. In any event, I am not satisfied that I have heard sufficient evidence or argument to deal with remedy. 98

341. However, I do have some comments that I hope will assist the parties in that respect.

342. I understand the grievor Bell no longer wishes to return to the 52 Division PCU. I understand that when the current phase of the hearing concluded Elliott still wished to do so.

343. There is no dispute that the transfers had a least a short term negative economic impact on the grievors. Damages are therefore an issue for both of them in any event. Bell and Elliott are prima facie entitled to damages for the value of the wages and benefits that they lost as a result of the violation of the collective agreement.

344. Fantino acknowledged in cross-examination that one effect of the transfers was a reduction in the officers‟ income. Bell testified that although the Detective and Sergeant rates of pay are the same, Detectives receive a $1,000.00 yearly clothing allowance, and the earning potential for PCU Detectives is significantly higher because of off-shift court attendance requirements and other premium pay opportunities. In examination-in-chief Bell estimated the earnings difference potential as being “easily” $20-30,000.00 annually. In cross-examination, he estimated his economic loss as a result of the transfer at $25,000.00 per year. The grievors‟ entitlement to damages is subject to mitigation. Bell maintains that he has suffered an economic loss notwithstanding his transfer to the Fraud Squad that is a straight days assignment (which means there is no shift bonus), and there is no extra court time and little overtime available.

345. There is also the question of the extent to which my determinations in this Award are dispositive of the claims of the other grievors, particularly those on Bell‟s Team.

346. Much hearing time was spent on the issue of tenure in the PCU. The question of tenure is significant for purposes of remedy. Bell, Gottschalk and Campbell testified at great length, and Fenwick and Crawford also spoke to the issue. It would take many pages to review that evidence and I do not consider it particularly useful to do so. What it comes down to is as follows.

347. It is clear that there was no formal TPS-wide tenure policy in place at any material time. Indeed, according to Campbell there was no such policy in place until a Command Directive was issued in March 2007, and even then it did not apply to Detective-Sergeants or Detectives. It is apparent that prior to that, and certainly at the material times, tenure “policy” was Unit Commander driven, and that in the case of the 52 Division PCU, the tenure policy was what Maher and subsequently Gottschalk said it 99 was. When Gottschalk replaced Maher he wanted to change the culture of the PCU and institute a more formal and less idiosyncratic tenure policy for the PCU. There is a dispute that the parties spent a great deal of hearing time on a meeting shortly after Gottschalk took over as Unit Commander of 52 Division at which tenure was discussed, and about the Unit Policies document in evidence as Exhibit #31. Gottschalk, Campbell, Bell, Hutton and Berger were present at the meeting. Gottschalk, Campbell and Bell all spoke to the issue. Hutton and Berger did not testify.

348. In the result, it is clear from both the agreed or undisputed facts and the evidence that there was and everyone understood that the normal PCU tenure for Detective- Constables (i.e. grievors Elliott, Stehouwer, Simon, Knott, Ion, Dziemianko, McCutcheon, Rosete, Bangild, Mayers and Gillespie) was either one year for “training” assignments, or first three and at some subsequent point two years for “permanent” assignments, the latter subject to extension. Although the evidence is not entirely consistent, both the agreed or undisputed facts and Bell‟s acknowledgement that he was aware that Berger was due “to be transferred in October 2003, six months before me” suggests that there was a 3-year tenure policy for PCU Detectives (Bell and Berger) as well. Bell‟s acknowledgement is an admission that notwithstanding his assertions to the contrary there was a tenure policy in place that Bell was aware. I am unable to discern any other basis for his statement.

349. There is little cogent evidence about tenure policy or expectations for Detective- Sergeants (i.e. the grievor Hutton) at the material times. What evidence there is suggests there was no policy in place. But there has been no focus on Hutton and the parties may have more to say about that.

350. It is not clear what remedy is sought for the breach of the partial settlement, although my determination of the issue clearly impacts on the tenure effect on damages.

351. Defamation is a strict liability tort. General damages are presumed from the publication of the false statement and are awarded at large. As the Supreme Court of Canada has recently stated (per McLachlin C.J. in Grant v. Torstar Corp., supra, at paragraphs 28-29):

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff‟s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, … The plaintiff is not 100

required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

352. In addition to general damages, a person who has been defamed is entitled to actual damages upon proof thereof.

353. The grievors Bell and Elliott are clearly entitled to damages for defamation. The measure of damages is in issue. The parties may have further evidence in that respect. The issue certainly requires further submissions.

354. I remit the issue(s) of remedy to the parties.

355. I shall remain seized for the purposes of rectification, and to deal with respect to remedy, and to any issues concerning the implementation, application or administration of this Award.

356. It is virtually certain that a further hearing will be required, either to deal with remedy, or to deal with the claims of the grievors other than Bell and Elliott. I direct the counsel to advise in that respect once they and the parties have had an opportunity to review and consider this Award, and how they wish to proceed.

DATED AT TORONTO THIS 24TH DAY OFOCTOBER 2010.

George T. Surdykowski _ George T. Surdykowski – Sole Arbitrator

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APPENDIX “A” – HISTORY OF THE PROCEEDING

1. My first Award (dated April 17, 2006) dealt with certain production and procedural issues. One of the significant process matters was my attempt (not particularly successful in the result) to expedite the hearing by dealing with the common bases for the 14 grievors‟ individual claims through a representative grievor process.

2. Award #2 (dated July 21, 2006) dealt with particulars and “pleading” issues, and further production issues.

3. The 48-page Award #3 (dated October 23, 2006) dealt with two related Employer motions. The first was what has come to be known as a “Weber” motion, in which the Employer submitted that I had no jurisdiction to entertain the Union‟s allegations or claims for damages for defamation. The second was a motion in the alternative in which the Employer submitted that in the event that I found that I did have jurisdiction all or most of the Union‟s defamation pleadings should be struck on various bases (as set out in paragraph 38 of that Award). The two motions were argued at the same time, so that the second motion was argued before the parties knew the result of the first.

4. I concluded (at paragraph 30) that the Weber, supra, jurisprudence establishes an “essential character” test for labour arbitrator jurisdiction which requires a factual and functional connection between a collective agreement claim and a claim in tort such that the tort claim is actionable as part of the collective agreement claim. I determined (at paragraph 34) that the material facts for essential character purposes are those that relate to the claim that the decision to transfer the grievors was improperly motivated, and for remedial purposes, arguably to the manner in which the transfers were made and what was said about them at the time.

5. Applying that test, I held that I have jurisdiction over the claims relating to the alleged statements made on April 17-19, 2004 as pleaded in Item #1 of the Union‟s statement of particulars (Appendix A to Award #3) and the claims pleaded in Item #2. I held that I do not have jurisdiction over the other defamation claims made in Item #1, or over the defamation claims made in Items #3, #4, #5, #6, or #7 of the Union‟s statement of particulars. With respect to the second motion, I held that the statements in Items #1, #4, and the statements attributed to former Chief Fantino in Item #6 are arguably defamatory, that the statements in Item #2 are not arguably defamatory, and that the statements in Item #6 attributed to unnamed police sources cannot stand in this proceeding. (Items #3, #5 and #7 were not challenged on this basis.) I held that none of the allegations should be struck at this preliminary stage on the basis of insufficient identification. 102

6. Accordingly, the Employer‟s motions were allowed in part. The claims and pleadings in Item #1 other than those relating to the alleged statements on April 17-19, 2004, and all of the claims and pleadings in Items #3, #4, #5, #6, or #7 were struck on the basis that I have no jurisdiction to entertain them. The claims and pleadings in Item #2 were struck on the basis that they did not make out an arguable case for defamation. However, I also ruled that the pleadings in Items #3 and #6 could be reinstated (or reiterated) as pleadings of malice in the event that the Employer pleaded the defence of qualified privilege. In the result, subject to the qualification with respect to Items #3 and #6, the only part of the Union‟s defamation pleading that remained was that part of Item #1 that relates to the April 17-19, 2004 statements.

7. Award #3 also dealt several other matters. First the Union sought leave to amend the grievance “if necessary”. I ruled that it was too late for the Union to amend its grievance (which at the time was more than two years after it was filed) to include claims it had been well aware for a long time.

8. Second, the Union reiterated an earlier request for disclosure of any portion of the wiretap evidence that was one of the subjects of Award #2 in which any of the 14 grievors is discussed, named or recorded. I ruled that the Union‟s request for production of wiretap evidence continued to be overly broad and noted that I had in any event addressed that issue in paragraph 40(h) of Award #2 in which I indicated that I was not prepared to make any production or other orders with respect to wiretap evidence at that time. I was still not prepared to do so and held that if the Union wanted any material that was in a criminal investigation file it would have to approach the court that had jurisdiction in that respect. I observed that there had to that point been no suggestion that any wiretap evidence constituted any part of the basis for the transfer decision in issue, and that it was not apparent that any such wiretap evidence was relevant to the issues I have to deal with.

9. Third, the Union requested that I direct the Employer to state and particularize its defence. I saw no reason not to require the Employer to deliver a statement of its defence in this matter. I therefore ordered the Employer to forthwith deliver its defence with respect to all matters in issue (i.e. not limited to what was left of the defamation claim), and in any event to do so prior to the next scheduled day of hearing. The Employer complied, and in its particulars it pleaded the defamation defences of fair comment and qualified privilege. The Union has alleged malice.

10. Fourth, the Union asked that I lift the stay on one of the orders in Preliminary Award #2. The jurisdiction issues having been settled, I saw no reason not to lift the stay 103

I imposed on my orders in paragraph 40(g) (dealing with grievor access to police records information pertaining to them) of Award #2. I therefore lifted that stay, ordered that the orders in paragraph 40(g) of preliminary Award #2 be complied with.

11. Award #4 (dated December 12, 2006) dealt with part of a continuing wiretap evidence production issue. I was satisfied that it was likely that some disclosure in that respect, and perhaps some of the actual wiretap evidence itself, was probably necessary and material to a fair and just hearing and determination of the grievance. It appeared that the Union was entitled to further particulars in that respect, which particulars would probably also enable me to determine what if any of the wiretap evidence would actually have to be produced and be the subject of evidence in the hearing. To facilitate further discussions between counsel and the hearing in that respect I ordered that any discussion or evidence concerning the gathering of any wiretap information or of any actual relevant wiretaps be held in camera, and that any member of the media or the public, or anyone else who did not have a right to be present as a matter of law, was excluded from that portion of the hearing.

12. Award #5 (dated May 8, 2008) concerned the continuing issue of wiretap evidence. For the reasons given in that Award I ordered that unredacted copies of all arguably relevant wiretap evidence materials be produced to counsel for the Union, subject to review and reconsideration upon application in writing of any interested party within two weeks of May 7, 2008, and that if no such application was made in a timely way any objection would be deemed withdrawn, and I would confirm the order and direct that unredacted production be made forthwith.

13. By letter from counsel dated May 16, 2008, William Blair, current Chief of the TPS, filed a timely objection to the “production of unredacted copies of audio and written transcripts of intercepted private communications” (i.e. wiretap evidence). An evening hearing was scheduled to hear submissions in that respect. In addition to counsel for the Employer, the Union, and the Chief, counsel from the Federal Department of Justice appeared on behalf of the Royal Canadian Mounted Police (“RCMP”). Counsel advised that the RCMP had not received timely notice of the issue or the hearing, and sought to make the RCMP‟s objections to production notwithstanding that it had not filed an objection within the time prescribed in my Award #5. I was advised that the RCMP had supervisory authority over the Combined Forces Special Enforcement Unit (the “CFSEU”) and as such effectively had custody and control of the wiretap materials in issue. Accordingly, the RCMP clearly had an interest in the issue. There being no apparent prejudice to anyone, I therefore heard Federal Department of Justice counsel‟s submissions over the Union‟s pro forma objection.

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14. The result was Award #6 (dated July 8, 2008). I ruled that I had jurisdiction to order the production of wiretap materials arguably relevant to the issues in this proceeding whether those materials were in the custody or control of the RCMP or otherwise, except for those materials that were subject to the Court Sealing Orders that had been made in collateral criminal proceedings (which did not involve charges against any of the grievors), or other like orders made by a court, body or person of competent jurisdiction. Further, and also for the reasons given in the Award, I changed my mind about my order in Award #5 that completely unredacted copies of the wiretap evidence that had been or was subsequently offered by the Employer in this proceeding be produced to the Union. Instead, I ruled that, having regard to the balancing of the relevant interests, the probable relevance of each piece of redacted information would have to be established separately for each piece of redacted private personal information on an item-by-item basis. I recognized that this could have the unfortunate effect of extending the already lengthy proceeding but noted that speed could not take precedence over principle. I therefore vacated my order that unredacted copies of all arguably relevant wiretap evidence materials be produced to the Union at that time, but made it clear that I was prepared to revisit the issue if it became apparent that other wiretap materials or any redacted information was probably relevant to my considerations.

15. In Award #7 (dated October 16, 2008) I dismissed the Union‟s request for production of the audio recordings of all of the wiretap materials in evidence, and its alternative 37 more specific individual requests, which the Union asserted it required to permit it and the grievors “to better identify the individuals involved in the conversations and … clarification of any evidence of tone of voice sarcasm, or jest which may not be possible through written transcript.”

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APPENDIX “B” – WITNESS ROSTER

(i) Union Witnesses

1. Representative grievor Bell was 21-years old when he joined the TPS On February 3, 1987. He is married and has a young son. His parents and two sisters live in British Columbia. Police officers and policing have always been a part of his life, and he says he wanted to be a police officer “ever since I was a kid”.

2. After 2½ years as a Constable, and some 2½ years in the 51 Division Major Crimes Unit (“MCU”), including two years (the tenure limit for Detective-Constables in that Unit) as a plainclothes MCU Detective-Constable, Bell was transferred to uniform duties at 42 Division. Nine months later, in 1993, he transferred to uniform duties back at the busier “hot spot” 51 Division just east of Yonge Street (51 Parliament Street, between Kings St. E. and Front St. E.). While there, Bell was transferred to a task force created to tackle street-level drug trafficking. His task force duties included both plainclothes and uniform assignments. When that task force was disbanded 10 months later, Bell returned to uniform duties at 51 Division. Six months after that (in 1995) he took a “permanent” Detective-Constable plainclothes position in the Criminal Investigation Branch (“CIB”). In July 1997, after 1½ years in the CIB position, Bell was transferred at his request to a Detective-Constable position in the Central Field Command Drug Squad located at 53 Division. In September 1998 he was promoted to Sergeant and assigned to uniform duties at 52 Division. In November 2000 he was transferred to the 52 Division PCU Detective position he held until the transfers in issue. Bell testified this was pursuant to management request by then Unit Commander Maher.

3. Representative grievor Elliott was also 21-years old when he joined the TPS in November 1981. He is married and the father of two young adult girls. After a year at York University he decided that was not for him. During a year spent finding his direction, he was drawn to police work and specifically the TPS because he considered the TPS to be an elite police force which offered diverse career opportunities. Elliott has always been more interested in investigative work than uniform duties.

4. After spending the first two years of his career in 5 District Traffic in downtown Toronto, Elliott sought and obtained a transfer to 52 Division and was assigned to what is now the uniform Primary Response Unit (“PRU”). In 1985, he obtained a 6-month training position in the 52 Division plainclothes Fraud Office. After completing that training Elliott returned to uniform patrol car duties in 52 Division until 1987 when he moved to an investigative Detective-Constable assignment in the 52 Division MCU. This was a 3-year tenured position which Elliott left early for personal reasons to take a 106 uniform foot-patrol position in 52 Division. Some two years later, in 1992 he took a plainclothes Detective-Constable position in the 52 Division Detective Office. He was in that position for less than a year when he successfully applied a Detective-Constable position in the PCU. In late 1996 Elliott moved to the Central Field Command Drug Squad, but was diagnosed with an illness soon after. A paper transfer returned him to the 52 Division PCU while he was off work and receiving treatment. Elliott returned to work on light duty in the PCU office, was off again for further treatment, and returned to PCU light duty again at the end of November 1997. He remained there until 1998 when he was transferred to full foot-patrol duty in the Community Response Unit (“CRU”). Two years later (in 2000) Elliott transferred back the 52 Division MCU. After 2½ years as a MCU Detective-Constable, Elliott transferred to the Community and Order Management Unit. This was a uniform function which operated in the entertainment district as a sort of extension of the PCU and also assisted in policing protests and demonstrations.

5. Elliott remained in the Community and Order Management Unit until he returned to the PCU as a Detective-Constable on Bell‟s Team in October 2003. Elliott says he applied for that position to further his investigative career, and also because of the overtime and court time economic benefits associated with it.

6. Grievor McCutcheon testified in aid of the cases of Bell and Elliott on the understanding that he can be recalled in aid of his own claim if and as appropriate.

7. Thirty-four years old when he testified, McCutcheon began his police career at 52 Division in January 1999. From then until April 2001 he was assigned to uniform patrol duties. From April to October 2001 he was assigned to a training position in the CIB Detective Office. After returning to the CRU and a stint in the Traffic Unit, he was assigned to the PCU and Bell‟s Team in June 2002, which is where he remained until the transfers in issue in April 2004. McCutcheon‟s career aspiration is to focus on investigative functions.

8. Grievor Gillespie joined the TPS after nine years of service with the OPP. He arrived at 52 Division in August or September 2000 and was assigned to Berger‟s Team in the PCU in October 2003, like Elliott just 6 months before the transfers in issue.

9. Grievor Mayers was hired by the TPS in January 1991 and arrived at 52 Division in September 1990 where he was assigned to uniform duties. In 2001 he had a one-year assignment on Berger‟s Team in the PCU, after which he returned to uniform duties. Mayers returned to the PCU in late 2002, again on Berger‟s Team where he was partnered with Detective-Constable Clayton.

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10. Grievor Knott went directly from Police College to 52 Division in 1987. After 6½ years in uniform he had (in 1994) a 6-month training stint in the PCU, and then returned to uniform. Two years later, in 1996, he returned to the PCU for four years (until 2000) and then was back in uniform for one year. Knott returned to the PCU in 2001.

11. Colette Bell is grievor Bell‟s spouse. Her evidence is relevant only to remedy.

12. Now retired, former Staff-Sergeant Paul Mckeown testified in reply. His testimony was limited to the sign on and off duty procedure at 52 Division at the material times. I consider that evidence irrelevant.

13. Detective-Sergeant Dean Burks has had numerous assignments in his more than 20 years on the job. He had been on the Homicide Squad since February 2005 (i.e. for some 20-21 months) when he testified in November 2006. He has known Bell for 20 years and considers him a good friend.

14. Dave Ouellette has been a TPS officer since August 1998. He is a CRU Constable at 41 Division.

15. Former Detective-Sergeant Michael Fenwick retired from the TPS in November 2003 after 35 years on the job – 15 years in uniform and 20 years in investigative (plainclothes) positions. This included significant time in the 52 Division PCU.

16. Michael Walters is a uniform Sergeant at 12 Division. He has been a TPS officer since October 1976. He was in the 52 PCU Unit for 3 years beginning in 1989, and again for one year, from October 2001 to October 2002, after which he returned to uniform for 6 months before being promoted to 12 Division.

(ii) Employer Witnesses

17. Commissioner of the Ontario Provincial Police when he testified (but is no longer in that position), Julian Fantino was TPS Chief of Police at the material times. Fantino has had a lengthy police services career. He began as a TPS Constable in February 1969 and moved through various positions and locations until he left the TPS in November 1991 to take the position of Chief of the London Police Service. After seven years as Chief in London, he served as Chief in York Region for some 1½ years before returning to the TPS as Chief in 2000.

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18. Inspector Bryce Evans began his TPS career on September 16, 1980. Since then he has held a number of progressively responsible positions in the TPS. On February 29, 2000 Evans was promoted to Detective-Sergeant and transferred to what was then Internal Affairs and is now Professional Standards. While in Professional Standards he has been involved in several criminal investigations of police officers. In January 2004 he was promoted to Inspector, after wiretap authorization had been obtained for the TPS 52 Division PCU offshoot investigation.

19. Evans testified with the assistance of his investigation notes. His redacted notes are Exhibit #48. Evans was also examined and cross-examined at great length about the wiretap evidence that was produced.

20. Staff-Superintendent Gottschalk has served with the TPS since October 1973. He recalls that he replaced Maher as 52 Division Unit Commander in late December 2002 or early January 2003 – the latter being more likely having regard to all the evidence.

21. Staff-Inspector Campbell began his TPS career in June 1975. He came to 52 Division as Inspector in charge of all non-uniform detective operations in December 2001. As such he was effectively second-in-command at 52 Division.

22. Tony Crawford has served with the TPS since March 14, 1972. He was made Staff-Inspector in January 2001. Maher was still Unit Commander when he was transferred to 52 Division in July 2001. Now a Staff-Inspector, Crawford was the Inspector in charge of 52 Division uniform units (e.g. the Primary Response (“PRU”), Community Response (“CRU”), and Alternative Response (“ARU”) Units) at the material times.

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APPENDIX “C” – COMMENTS ON ACTUAL OR PERCEIVED IRRELEVANCIES

1. I heard a considerable amount of evidence that is irrelevant to the merits of any of the issues. However, some of that evidence is relevant to remedy or offers assistance in assessing the credibility of the witnesses or the reliability of their evidence. Some of the irrelevant or marginally relevant evidence has to be used to maintain required context and chronology.

2. Campbell and Gottschalk both testified about a 2002 incident (before Hutton or Gottschalk arrived) in which a member of Bell‟s Team at the time (PC Greenaway – not in the PCU when the transfers in issue were ordered and not one of the grievors) caused, apparently at the request of a Crown Attorney, subpoenas to be issued to a City Councillor and then Unit Commander Maher without giving Maher or any other senior officer a “heads up” notice that Campbell says is appropriate with respect to something that impacts on the Chief‟s office. Gottschalk testified that this was “the” example of the lack of management and control of the PCU. Campbell acknowledged that he accepted that neither Smallbone (then in charge of the PCU) nor Bell were aware of what Greenaway did in that respect but says that they should have known. All Gottschalk knows about the matter is what he read (presumably in reports) about it, but he doesn‟t believe that Bell, Berger, Hutton or anyone else in the PCU had anything to do with it. In cross-examination, Campbell acknowledged that so far as he was aware (and he presumably would have been) no discipline – not even a reprimand – was issued with respect to the matter, perhaps not even to Greenaway. In any event, there is no evidence that this “incident” was on anyone‟s radar at any material time, and it is completely irrelevant to the determination of the grievance.

3 Campbell and Gottschalk were asked about a 2003 New Year‟s Eve incident at 52 Division. Gottschalk has no direct knowledge of the incident. He knows only what Campbell told him. The incident involved two off-duty MCU officers and Gillespie, a member of Berger‟s Team, and alcohol in the PCU office. (No one from Bell‟s team was present or on duty.) An investigation revealed that both MCU officers had been drinking and were impaired, but that Gillespie had not been drinking. The MCU officers were transferred to uniform duty within 52 Division. No PSA or other charges were ever laid against Gillespie with respect to this incident. There is no evidence that this incident was a factor in the decision to transfer Gillespie (or any other grievor), and because of that and the fact that the focus of this Award is on issues of general application and grievors Bell and Elliott it is also irrelevant.

4. The Employer‟s evidence concerning Bell‟s PCU performance is conflicting and internally inconsistent. (For example, notwithstanding his purported criticisms, Campbell 110 testified that he had no enforcement or other concerns with him, and Gottschalk testified he had no issues with Bell, and that no one on 52 Division‟s management Team ever expressed any dissatisfaction with him). There is no evidence of any issues with Elliott‟s performance. Having regard to the Chief Fantino‟s assertion that the PCU was dysfunctional, and that that factored into his conclusion that there was no distinction to be made between Bell‟s Team and Berger‟s Team and the PCU had to be completely dismantled, I cannot agree with the Employer‟s assertion that there was no merit component to the transfers. How could the entire PCU be judged dysfunctional if 52 Division management had no performance issues with the Detective in charge of one of the two Teams? That, and fact that Fantino made no inquiries in that respect and ignored the grievors‟ performance appraisals, is not irrelevant.

5. The evidence of Campbell‟s and Gottschalk‟s dissatisfaction with Hutton and Berger, is irrelevant in this phase of the proceeding because that evidence is specific to their claims, and the only individual grievors I am concerned with in the Award are Bell and Elliott. However, I am constrained to review much of this evidence for purposes of continuity and because it also demonstrates important distinctions between the two Teams and the individual grievors.

6. I heard days of evidence about tenure theory, application and expectations, both generally and in the 52 Division PCU, and also the Ferguson Report. Although much was said about them, the transfers in issue had nothing to do with tenure or the implementation of the Ferguson Report. Indeed, Fantino completely ignored tenure as a factor. This evidence is relevant to the merits of any the transfer issue because it speaks to the quality of the transfer decision. It is also relevant to remedy.

7. Notwithstanding the Employer‟s attempt to make it so, the court time issue, and the tie-in officer-in-charge (of court files) issue, has nothing to do with this case. There is no evidence that that was a factor in Fantino‟s decision, much less an issue he had any information about. Even if it was, I am satisfied that this is more probably than not the sort of budgetary issue that constantly vexes every TPS Division as the command officers struggle to control and stay within budget. It should not surprise anyone that the members of a Unit who work a steady night shift schedule incur significant overtime and be “high earners” as a result of being required to be in court or to deal with related matters outside of their regular schedule. As for the officer-in-charge issue, like Evans, I accept Bell‟s explanation. Since neither Gottschalk nor Campbell suggested otherwise, I also accept Bell‟s assertion that he was never instructed to change his officer-in-charge practice. The Employer can therefore hardly be heard to complain about it in this case. In any case, this evidence is also irrelevant to the merits except to the extent that it assists in assessing credibility or reliability. 111

8. I am also satisfied that notwithstanding Fantino‟s lip service to it, the Ferguson Report recommendations, and the theory and policy regarding the rotating of police officers through assignments, both in high risk units and generally, were given more significance at the hearing than at the time the transfer decision was made. Not only is the devil in the application of the Ferguson recommendations in the TPS, these apply to normal course transfers, and in this case, both the situation and the transfers were anything but normal course. I also observe that on the evidence of the careers of the officers who testified, TPS officers actually move around quite a bit.

9. I heard a great deal of evidence about the sign on and off issue, particularly as it relates to the “Huey‟s incident”. Although an issue for the TPS, this is a complete red herring for purposes of this case because the manner in which the grievors were signed off duty on April 15, 2004 is completely collateral to the Huey‟s incident. The evidence in that respect is irrelevant except for chronology purposes, and I am not going to review it except for that purpose.

10. Fantino was cross-examined at length about the negotiations for the renewal of his contract as TPS Chief of Police as motivating his decisions with respect to the PCU in 2004, and about alleged attempts to set up his son in order to extort Fantino‟s resignation. Having considered the evidence in that respect, I do not consider it at all helpful, and I find it neither necessary nor useful to review it in this Award.

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APPENDIX “D” – WIRETAP EVIDENCE CONTROVERSY

1. The production of wiretap evidence was an issue that permeated the proceeding and was a subject of several of the previous seven Awards. I was advised that there are records of some 70,000 wiretap intercepts that may related to the Professional Standards investigation. The Employer submitted a selection of this evidence as part of its case. The Union sought production of additional wiretap materials on numerous occasions during the course of the proceeding, and controversy ensued.

2. Mr. Chercover requested that I record an exchange between us during the hearing concerning the wiretap evidence. In argument, he returned to the issue when he “wondered” about the relevance of the wiretap evidence, his suggestion being that it is of little relevance because I did not require all of it to be disclosed and allowed the Employer to pick and choose what wiretap material was disclosed. I note and infer from Mr. Hines‟ comment in argument on behalf of the Employer that only a “sliver” of the wiretap evidence collected is before me a suggestion that there is much more in the wiretap material that is not before me.

3. From the outset, I was skeptical about the assistance that the wiretap evidence was likely to provide with respect to either the issues perceived to be common to all the grievors, or the issues specific to grievors Bell or Elliott (which were the only two grievors whose unique individual situations were being litigated). My skepticism only increased when Employer witness Inspector Evans (the wiretap evidence witness) testified in chief. In an effort to signal my doubts about the efficacy of extensive cross- examination in that respect and thereby focus and move the hearing along I expressed concern about the relevance and utility of an extensive cross-examination of Evans on the wiretap evidence. I did this first with counsel in camera and subsequently in open hearing.

4. I expressed concern in open hearing during Mr. Chercover‟s cross-examination on the point because it reflected the Union‟s and grievors‟ apparent obsession with the wiretap evidence, and their apparent belief that that haystack of evidence might contain a needle which might tend to support their case. I found it hard to fathom, and the Union could not explain, how the authorized intercepts could possibly produce such evidence. It appeared that the Union was engaged in a “fishing expedition” for which no foundation had been laid, so I expressed my concern that there was nothing to be gained from any closer examination of the wiretap evidence and suggested that it would be more useful to focus on things that at least appeared to be arguably relevant to the issues actually before me. In response, and notwithstanding that I did not made an actual ruling in that respect, Mr. Chercover expressed the Union‟s disagreement with my observation and the Union‟s 113 concern that it was being prejudiced in the presentation of its case, but agreed to try to “circumscribe” his cross-examination in that respect – which to some extent he did.

5. The grievance arbitration process is no longer either as informal or as expeditious as it once was, but it is still far less formal than a criminal proceeding – which it appeared the Union was intent on treating it as being. Although speed is not the only objective (and this proceeding had even to that point been anything but expeditious), and a party is entitled to latitude in exercising its right to cross-examination, a party is not entitled to “go fishing” by seeking production or to cross-examine outside of the litigation parameters established by the “pleadings” (in this case established by the particulars provided by the parties) or in the hearing as the case is presented. An expeditious hearing remains a bona fide objective, and there are limits on what a party can reasonably be permitted to pursue in cross-examination. In a labour arbitration proceeding those limits are arguable relevance to the matters in issue. It is perfectly legitimate for an arbitrator to try to keep the parties on that very generous track.

6. In the result, certain wiretap evidence was admitted. Most of it is of very limited utility to the extent it is referred to in the body of this Award, and having finally arrived at the stage of Award #8, I am convinced that it is highly unlikely that spending more hearing days ploughing through even more wiretap material would have served any useful purpose. Notwithstanding the Union‟s obsession with it, to the extent that it was useful at all, and also notwithstanding the Employer‟s “sliver” comment, I consider it reasonable to infer that what I have of the wiretap evidence is as good as it gets on the weigh scale of relevance.