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IN THE MATTER OF AN ARBITRATION

BETWEEN:

North Bay Police Association

(Hereinafter called the “Association”)

and

North Bay Police Services Board

(Hereinafter called the “Board”)

IN THE MATTER OF THE GRIEVANCE OF SANDRA ALLARY

Arbitrator

Belinda a. Kirkwood

Appearances for the Association

Caroline (Nini) Jones, Counsel

Noel Coulas, Association Representative

Sandra Allary, Vice-President of the Association and Grievor

Appearances for the Board

Michael B. Burke, Counsel

Paul Cook, Chief of Police

Shelley Hampel, Human Resources Officer

Jennifer Katsuno, Student at Law

Lindsay Scott, Student at Law

Hearing Dates

May 5, 2009, June 15, 21, 22, 23, 24, 2010 and July 28, 2010 in North Bay and August 3, 2010 in Toronto, Ontario P a g e | 2

AWARD

The Association claimed that the Grievor ought to be placed in the position of Forensic Identification Officer, or alternatively that the job competition be rerun, after offering the Grievor the opportunity to receive relevant materials and the time to study. The Association claimed that the process which the Board used to assess the candidates was so unreasonable as to be fundamentally flawed that it could not properly assess the candidates, more particularly the Grievor, and asserted that the Grievor was qualified under the terms of the collective agreement.

The Grievor was a Classification Clerk and had been employed with the Service for approximately 19 years. She applied for the position of Forensic Identification Officer (“FIO”). The Grievor did not receive the position, as it was the Board’s view that although the Grievor had the capacity to learn the position if given to her, the Board was entitled to select a candidate who had the skills and ability to perform the duties of the job at the time of receipt of the job. The Board’s position was that it was not required to select a candidate who had the potential to fill the position.

As a result, the Board selected an outside candidate, Brian Solmes. The Association agrees that Brian Solmes is highly qualified for the position, as he had been a forensic specialist with the Sudbury Police Service for seven years, has a background in Science, has extensive training in the field and has been sent on regular courses to maintain his expertise. However, the Association asserted that the collective agreement does not give the right to the Board to select the best qualified candidate, but the Board is required to select the most senior qualified candidate.

The North Bay Police Service (“the Service”) is one of the very few services that employ civilians as Forensic Identification Officers. With very few exceptions the work is done in the various Services by sworn members. In North Bay, the position had been carried out by the Technical Services Technicians or Supervisor, who had entered the position originally without particular accreditation in this area, but who then attended intensive P a g e | 3 courses put on by either the Ontario Police College (“OPC”) or the Canadian Police College (“CPC”), and over the course of time, became experts in their field.

Since the Campbell Report on the Bernardo Investigation (1996) and the Kaufman Inquiry (1997), new legislation, Adequacy and Effectiveness of Police Services Regulations, Ontario Regulations 3/99 s. 14(3) (“the Adequacy and Effectiveness Regulations”) was promulgated in 2001 and imposed high standards on the chief of police with respect to the carriage of forensic investigations. In order to act as a FIO all FIOs must have passed either an intensive nine week course put on by the OPC or that of the CPC after which the FIO must be recertified every three years, by passing further intensive courses. Although under the legislation there is an entitlement to hold the position if the person has equivalent training, none of the witnesses were aware, including the Police Services Advisor, that anyone had obtained this position by demonstrating equivalent standards.

Mr. Ransom was the most recent Technical Services Supervisor in the Service, but left the Service, creating a vacancy in this area. Chief Paul Cook decided, after consulting with the Association, to fill this need by creating two FIO civilian positions, who would then report to the Detectives in the Investigation Support Unit.

The FIO position was posted by Routine Order on August 14, 2008 with a closing date of August 28, 2008 and candidates were invited to submit their resumes detailing their qualifications and experience as it related to the requirements of the position.

The Position Description as revised on May 9, 2008 and then in September a further amendment was made to reflect the change in the reporting structure from Technical Services Supervisor to Detective Investigative Support. The accuracy and applicability of the Position Description was not in issue. Without reference to the physical component which was not relevant, the Position Description is as follows:

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FUNCTION

1. Provide or arrange specialized technical advise and/or assistance in investigations of incidents. 2. Prepare cases for court, assist in the court process and prosecution of offences. 3. Maintain identification files.

A. PREREQUISITE

1. Successful completion of pre-employment testing. 2. Must meet entrance criteria of identification training course at either the Canadian Police College or Ontario Police College.

B. DESIRABLE QUALIFICATIONS

1. Knowledge of Criminal Code and related Federal Statutes. 2. Effective communication skills. 3. Experience in providing oral testimony in court and knowledge of the court system. 4. Demonstrating understanding of the rules of evidence. 5. Knowledge of photographic processes and techniques. 6. Knowledge of drafting/drawing skills. 7. Basic knowledge of personal computer. 8. Knowledge of report writing. 9. Knowledge of Service policies and procedures. 10. Ability to work independently. 11. Self-motivation/initiative. 12. Problem solving and research skills.

C. PRINCIPAL TASKS

1. Attend at crime/incident scenes conduct investigations and/or assist other member of the Service or other agencies with technical assistance. 2. Take photographs/video at crime/incident scenes, special events, in the identification laboratory and/or administrative purposes, as required or directed. 3. Conduct fingerprint examinations at crime scenes or in the identification laboratory as required. 4. Take measurements, conduct or arrange specialized processes to reconstruct crime scenes and/or accident scenes. 5. Collect, preserve and process evidence at crime scenes. 6. Acquire, examine, inventory, store, or transport firearms, prohibited weapons, prohibited devices, prohibited ammunition or explosive substances. P a g e | 5

7. Acquire, examine, inventory, store, or transport controlled drugs and substances. 8. Document and preserve continuity of evidence. 9. Process and analyze evidence. 10. Fingerprint persons as required. 11. Obtain DNA samples and Data Bank sampling pursuant to the Criminal Code of Canada as required. 12. Prepare and submit crown briefs for charges of Failure to appear and Breach of Undertaking in relation to the non-appearance for the purposes of identification. 13. Conduct identification examinations and processes such as physical matches fingerprint comparisons. 14. Prepare physical, fingerprint, and photographic or other demonstrative evidence for court as required. 15. Search persons, places, or vehicles for physical evidence as directed. 16. Maintain notebook containing an accurate account of up-to-date- activities. 17. Maintain a record (curriculum vitae) supporting personal expert knowledge for court purposes. 18. Prepare for court, formal inquiry and Coroner’s Inquests. 19. Attend court and provide testimony as required. 20. Monitor activities and incidents to help establish crime trends. 21. Complete sexual offenders registrations as required. 22. Prepare and submit reports as required. 23. Prepare case submission form and liaise with person of the Center of Forensic Sciences, the Royal Canadian Mounted Police Identification Services, the Ontario Provincial Police, Forensic Identification Service and the Forensic Pathology Branch of the Minister of the Solicitor General’s office in accordance with Service policies and procedures. 24. Use and maintain all equipment within the technical services office, laboratory, and dark room area. 25. Conduct in-service training, in regards to specialized processes, equipment, or procedures with Patrol, Courts, and Investigative Support when directed. 26. Act as a field trainer in relation to Technical Services as directed. 27. Provide front line response to Biohazard threats and suspicious packages.. 28. Research, develop, and report on identification processes and techniques when directed. 29. Consult and provide guidance to Patrol and Investigative Support personnel in regards to technical processes or procedures. 30. Confirm fingerprint identifications and opinion conclusions made by other technical service personnel. 31. Attend autopsies and conduct examination, investigations relative to the Coroner’s Act/Criminal Code. 32. Maintain incident files containing latent fingerprint lifts, photographic negatives, prints, and documentation. 33. Maintain a computerized/hard copy fingerprint, mug photo system. 34. Perform the duties of a “Fingerprint Examiner: where designated in the Criminal Code of Canada. 35. Take additional training as required. 36. Perform additional duties as required.

D. POSITION DIMENSIONS

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CRITICAL

a) KNOWLEDGE – Has knowledge of Federal and Provincial laws, Service policies and procedures, scene investigations and court procedures, the principles of identification, photographic, and fingerprinting techniques. Working knowledge of all technical services equipment.

b) JUDGEMENT – Accurately identifies problems and situations correctly and selects the appropriate courses of action or procedures to deal with same. Makes decisions based on logical conclusions which reflect factual information.

c) ORAL COMMUNCIATION – Expresses ideas or concepts effectively. Effectively questions others and listens attentively to gain information. Clearly communicates ideas verbally.

d) LEARNING AND RECALL – Remembers details and information and applies that which has been learned to a given situation.

e) PLANNING AND ORGANIZATION – Establishes an appropriate course of action for self and others to accomplish specific tasks. Uses resources appropriately, establishes work priorities and uses time efficiently. Handles several investigations at one time.

f) INIATIVE – Originates action. Actively attempts to influence events to accomplish tasks. Puts forth extra effort when required. Is self – starting. Takes action to achieve goals beyond what is called for.

IMPORTANT

A) WRITTEN COMMUNICATION – Expresses oneself clearly in writing. Compiles effective reports that convey information or data accurately. “Understands written or graphic material. B) COOPERATION – Works willingly and constructively with peers, superior and the public. Relates to field personnel, superiors, and the public in obtaining their cooperation. Is considerate of others and their opinions. C) INTERPERSONAL SKILLS – Demonstrates sensitivity for the feelings and needs of others, job-related or persona. Displays tact and diplomacy. Establishes a rapport, working relationship with others to accomplish tasks. Keeps others informed.

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The Grievor forwarded her resume on August 25, 2008. Brian Solmes, the successful candidate and FIO, learned in the spring of 2008 that there was a possibility that such a position would be created in North Bay and subsequently contacted the Service and forwarded his resume to the Service on August 18, 2008.

Chief Cook was looking for a person who could step into the position and carry out its functions immediately. He reviewed Mr. Brian Solmes’ application on receipt and concluded that he was qualified for the position. Chief Cook reviewed several applications from internal candidates and reviewed their resumes on or about the time of the closing of the posting, and was of the view that none of the internal candidates, including the Grievor, were qualified for the position. With respect to the Grievor’s application, he came to his conclusion, based upon his knowledge of what the job entails, the legislation and his knowledge of the Grievor as an employee and her resume.

Chief Cook, however, wanted to provide the internal applicants with an opportunity to demonstrate that they had the qualifications to do the position even though he was not aware of any of them having the training provided by the OPC or the CPC. Chief Cook wanted to have an independent body develop a test that could be used to determine if a person, who had not gone through the OPC training, could nevertheless be qualified to be an FIO. As the Service did not have such expertise, Chief Cook contacted the Director of the OPC, Rudy Gheysen, and arranged for the OPC to develop a tool or test to determine if the candidates were qualified to do the FIO position. Accordingly, on August 29, 2008, he spoke with Rick Devine, the Team Leader, Forensic Identification Training Unit, who is responsible for the development and delivery of training of forensic officers at the OPC, and is responsible for the Basic Forensic Course, re-certification and related specialized courses. Chief Cook forwarded Rick Devine a copy of the Position Description to assist him in creating the test.

Chief Cook understood from Rick Devine that he would develop a three part test, based upon Basic Constable Training and forensics, general knowledge, and observation and report writing based upon a photograph. The Service would proctor the test, but the test would be marked by the OPC, and the passing mark would be set by the Service. Chief P a g e | 8

Cook then delegated the responsibility for the development of the test to Deputy Chief Williams and did not see the test before it was administered.

Rick Devine developed the first draft of the test which had 60 questions which required true or false answers and submitted it to Deputy Chief Williams. There were three components as discussed with Chief Cook. There was a series of multiple choice questions that came from the Basic Constable Training course, a component on fingerprint comparison, and a photo that was to be used by the candidate to review and to report on the scene. As Deputy Williams found the test too easy and wanted a greater focus on forensics, Rick Devine revised the test increasing the number of questions to 105 and focusing more questions on forensic issues as requested by Deputy Williams, but he maintained questions that related to basic police work as he felt they were a necessary component of the position even if the position was held by a civilian member.

The first 32 questions were taken from the Basic Constable Training Course, and questions 33 to 60 were taken from the bank of questions used in the Recertification Course. Other questions came from the mid-term examinations of the Forensic Identification Course.

The Second part of the test was a Pattern Recognition Test, a fingerprint recognition test, the purpose of which was to identify if a person is able to recognize spatial differences in situations where things look the same, but are different. Unlike the standard applied during the OPC course which would require a candidate to leave the OPC course if there were any errors, this test was based upon the premise that the person did not have any pre-training and pre-knowledge of the area, and was developed to assess whether a person had an ability in this area.

The third part of the test was to complete a report on a crime from a photograph to test the reporting and observation skills of the individual. P a g e | 9

Rick Devine testified that he based his test on the Core Competencies in the Standard set out by the Ministry of Community Safety and Correctional Services. He did not want to vary from the standard and set a precedent for a person to be able to become an FIO who was not competent. He believed that the test was to be used in the selection process in conjunction with an interview. The Service set the pass mark at 75%.

The Grievor was advised on September 10, 2008 that she was to write a three hour test at 1500 hours on September 12, 2008. She wrote the test and the test was forwarded to the OPC for marking. One question was removed from the examination and the Grievor received a total of 46% on the test. On the multiple choice portion, which was worth 50% of the total, the Grievor obtained 51 out of 104 for 24.5 out of 50. She received 12 out of 20 on the written report, and she had one wrong on the comparison test. As in that segment, incorrect marks were subtracted from the correct answers, this error was equated to be equivalent to 4.3% wrong. In Rick Devine’s opinion, the Grievor’s test results demonstrated that she was not qualified as an FIO, but was a very good candidate to take the course.

Chief Cook was of the view that the tests confirmed what he had believed, that while the Grievor was an exceptional employee, the Grievor was not qualified for this position. He had heard that Rick Devine was of the same view, but he stated he was not influenced by his opinion.

On September 25, 2008, the Grievor was advised that based upon her resume and her score of 46% on the tests, she was not qualified for the position. Neither she nor any of the internal candidates were given an interview.

An advertisement for the position was approved on September 26, 2008 and the position was advertised in the North Bay Nugget in October 2008.

Although Chief Cook believed Brian Solmes was qualified, and debated whether he should be tested, he ultimately decided that Brian Solmes should write the test to determine if he was wrong in his assessment. Upon being asked to write the test, Brian Solmes immediately came to North Bay and did so. P a g e | 10

Brian Solmes received 74 out of 105 on the multiple choice portion, 31 out of 31 on Pattern Recognition, and 15 out of 20 on report writing for an overall 71% on the test. Rick Devine knew Brian Solmes previously in an academic sense and knew that Brian Solmes had taken the OPC course and a number of other relevant courses. When he reviewed Brian Solmes’ test results, the results aligned with previous assessment of him in an academic forum. He concluded that Brian Solmes was qualified to be an FIO and conveyed his opinion to the Service.

Although Chief Cook was told by either Deputy Chief Williams or by Shelley Hampel, Human Resources Officer, that Brian Solmes did not pass the test as he had only received 71% on the test, Chief Cook believed that Brian Solmes was qualified, and wanted him to be interviewed as well as the other two external candidates who demonstrated that they had relevant knowledge or experience. The three external candidates were interviewed for the position by a panel of Deputy Williams, Detective Sergeant Jerome, and Mr. Ivan Ryman, a prior Technical Services Supervisor.

The three interviewers concluded that Brian Solmes was qualified for the position. Brian Solmes was given a conditional offer on January 19, 2009 and on February 9, 2009, the Board passed a resolution approving his appointment and Brian Solmes began working in March 2009.

The incumbent, Brian Solmes was provided notice of the hearing and did attend the hearing on some occasions. While Brian Solmes was offered the opportunity to ask questions and present submissions, he chose not to do so.

ASSOCIATION ARGUMENT

The Association argued that the parties’ intentions are as written in the collective agreement and the role of the Board is to determine whether the collective agreement was complied with on the face of the language of the collective agreement. The Association submitted that the collective agreement must be interpreted on its plain P a g e | 11 language and be interpreted in a consistent manner. Each word should be given meaning and no additional words should be added to reach a meaning.

The Association submitted that seniority rights in this collective agreement are generous and the parties have given preference to civilian members with the greatest seniority and certain qualifications to move upwards. Such rights once conferred ought not to be restricted. One of the benefits is provided in Article 10.01, which is to give preference to those with seniority in matters of promotion. The Association submitted that Article 10.01 is a “threshold” clause, such that the senior person with the “necessary qualifications” of loyalty, activity, intelligence and conduct receives the position. Seniority will govern if the employee has loyalty, which represents duty and commitment, activity which requires initiative, drive and diligence, intelligence which includes the capacity or ability to learn and adopt and gain knowledge, and finally conduct, which embodies the concept of discipline, and applying conduct at its highest standard, to give pride to the organization. The Association submitted that the application of these criteria may differ with the position applied for, but it is these attributes which the parties agreed constitute the qualifications for the position.

The Association submitted that the parties did not agree in this collective agreement to require knowledge, skill and ability to obtain the position. Where the parties intended to require knowledge, skill and ability to relate to a position, they have done so. By example, the parties used the criteria of loyalty, activity, intelligence and conduct for promotions in the Sworn Agreement for all positions other than that of Inspector where the parties applied the pre-requisites to the knowledge, skills and abilities as reasonably required for the position in the opinion of Chief of Police.

The Association submitted that the collective agreement does not require a candidate to have the present ability to do all elements of the position as determined by Arbitrator Snow on the Aline Major grievance, North Bay Police Association and North Bay Police Services Board (unreported) (November 19, 2004)(Snow), when interpreting Articles 10.01 and 26.01 of the prior collective agreement between these parties, which P a g e | 12 wording is identical to the Articles 10.01 and 26.01 of the collective agreement applicable in this case. The Association submitted that Arbitrator Snow was wrong and his decision ought not to be followed.

The Association submitted that although earlier decisions between the same parties are not precedent for a subsequent decision, she acknowledged there must be some reasonable reason for departing from the earlier decision. The Association submitted that an arbitrator must apply the correct interpretation of the collective agreement and not follow an interpretation made by in an earlier arbitration decision which is wrong.

The Association submitted that Arbitrator Snow’s decision was wrong, as he concluded that there was an ambiguity in Article 10.01 without establishing any foundation for his conclusion, without applying and considering rules of interpretation and for making his conclusions without evidence to resolve an ambiguity. She submitted that Arbitrator Snow’s interpretation was not based upon what the parties had agreed in the collective agreement, but was based upon, what, in his view made good business sense.

The Association agreed with Arbitrator Snow’s interpretation that Article 10.01 was a “sufficient ability” clause, such that it was not a competition for the best or most qualified person for the position, but that the senior civilian candidate is awarded the job once the threshold of ability is reached. However, the parties did not use words which are common in other agreements which tied the qualifications to the job to be performed. The Association submitted that Arbitrator Snow’s interpretation was not supported by the collective agreement and was unreasonable when he found that in order to acquire the position that the applicant is required to do all elements of the position. It would be rare to require the employee to be able to do all the elements of the position being applied for, and it would be rare that one person would be able to do another’s job in the bargaining unit when the positions are so disparate.

Relying on National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Bristol Aerospace Ltd. [2005] M.J. No.306 (Scurfield J.), Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic P a g e | 13 and Pacific Co. of Canada [1976] O.J. No. 32; 76 CLLC 332 para. 14,056 at 332 (Reid, Cory and Garrett J.J.), the Association submitted that the role of the arbitrator is to interpret the collective agreement and not to determine whether the Board had acted honestly and reasonably in making its decision or to base its interpretation on a business decision as did Arbitrator Snow in the Aline Majors decision.

The Association submitted that the entitlement of the Board to administer tests to ascertain whether the employee is capable of performing the job is not in issue, rather it is the content of the test and the manner in which it was administered which is in issue, and which, the Association submitted was grossly unfair. The fact that the Board hired a person who the Board considered qualified, and yet who failed the test indicates that the test was not reasonable. Some of the test’s contents were taken from the Basic Constable Training, although it was not a sworn job. There were more difficult questions on the final test used than on the original test submitted and many questions were not reasonably related to the job. Unlike those who would be taking the recertification course who would have completed the Basic Forensic Course, would have a minimum of three years of experience on the job, and months notice to review over 1200 pages and three text books, the Grievor had no material and less than two days notice before writing the test and had no prior knowledge of what the contents of the test would be. Even those who take the Basic Forensic Course would have received extensive material to review and learn prior to taking the course. The Association submitted that as the test is so deficient it cannot be relied upon.

The Association also submitted that there was no clear assessment of the Grievor’s loyalty, activity, intelligence and conduct, the qualifications under Article 10.01. There were more reasonable methods of determining whether a person could do the job, such as through an interview or through pre-testing based upon standards which align with a civilian and not a sworn position. If the Board had engaged in a more reasonable process, they would have learned that the Grievor was qualified as set out in the collective agreement.

The Association submitted that the Board was estopped from removing the entitlement to training for this position. Every person prior to this posting had been assessed at P a g e | 14 threshold levels, and upon being appointed had been sent to the OPC or the CPC for training. The Association submitted OPC training is embedded in the job. It is the statute that requires the training, not the collective agreement. A candidate could only receive the training at OPC, if the person was in the FIO position, and there are no other courses given in Canada which meet the standard required. The only way that the candidate could do the OPC pre-course is with the sponsorship by the Service.

The Association submitted that Chief Cook does not have the right to change the qualifications to the standard to require the candidate to have the qualifications to perform the job, without notice to the Association and to the candidates, without offering the opportunity to the Association to raise the issue at the bargaining table.

The Association submitted that the Grievor met the necessary qualifications for promotion. The Grievor has loyalty, as shown by her involvement in various workplace issues, and participation in outside events, she has made meaningful contributions and shown a deep commitment to the organization. The Association submitted that intelligence is an important criteria and is determinative of whether the employee has the capability to do the job. She is intelligent and has tried to take courses in forensics, but has been discouraged from doing so. The Grievor has demonstrated loyalty, good conduct, is committed to the Service, is intelligent and an extraordinary employee. Chief Cook acknowledges that she was an outstanding member and Rick Devine concluded that she was a good candidate for the FIO course.

The Association submitted that the Grievor was qualified and should be put in the FIO position, or alternatively that the competition be re-run and that she have the right to write the test with reasonable notice and the materials that would make her eligible for the FIO course.

In support of its submissions, the Association also relied upon Re DHL Express (Canada) Ltd. and Canadian Auto Workers, Locals 4215, 144 and 4278 [2004] 124, L.A.C. (4th) 271 (Hamilton), Brown & Beatty, Canadian Labour Arbitration December 2009, Release 13 at Paragraph 4:2100, Metropolitan Toronto Zoo and Canadian Union of Public Employees, Local Union 1600 (Wage Increase Grievance) [2004] P a g e | 15

O.L.A.A. No. 217, Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Co. of Canada [1976] O.J. No. 32; 76 CLLC 332 (Reid, Cory and Garrett J.J.), Re North Bay Police Services Board and North Bay Police Association (Osmun et al.) [2006] 153, L.A.C. (4th) 336 (Marcotte), Re Board of School Trustees, Delta School District and Canadian Union of Pubic Employees, Local 1091 [1994] 46, L.A.C. (4th) 216 (Laing), Re Ascolite Ltd. and International Union of Electrical, Radio and Machine Workers, Local 553 [1980] 26, L.A.C. (2d) 391 (Weatherill), Canadian Food and Allied Workers Union, Local 175 v. Great Atlantic and Pacific Co. of Canada [1976] O.J. No. 32, Sullivan on the Construction of Statutes, 5th Edition, Ruth Sullivan, The Canadian Oxford Dictionary, edited by Katherine Barber, Oxford University Press, Canadian National Railway Co. v. Beatty [1981] 34 O.R. (2d) 385 (Osler, Southey and Gray J.J.), Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43 [1982] 7, L.A.C. (3d) 218 (Carter), Canadian Airlines International Ltd. and I.A.M., Local 721 48 C.L.A.S. 435 (Laing), Re Eastern Provincial Airways (1963) Ltd. and Canadian Airline Employees’ Association [1979] 24, L.A.C. (2d) 71 (Christie), Local 278C, International Union of Brewery, Flour, Cereal, Malt, Yeast, Soft Drink and Distillery Workers of America, and Brewers’ Warehousing Company Limited [1954], 5, L.A.C. 1797 (Laskin), Re Oak Bay Police Board and Oak Bay Police Association [2002] 106, L.A.C. (4th) (Glass), Re Hamilton Health Sciences and Ontario Nurses’ Association (Jones) [2007] 164, L.A.C. (4th) 332 (Johnston).

BOARD ARGUMENT

The Board submitted that the Grievor was an unqualified candidate who was trying to claim a highly technical job, where the importance of the qualifications of the position cannot be overstated. The Board argued that the importance of the forensic position has been heightened since the Report of Mr. Justice Archie Campbell on the Bernardo Investigation Review 1996, and that of the Kaufman Inquiry into Guy Paul Morin 1997. These reports resulted in amendments to the Police Service Act to require the Board, P a g e | 16

Chief and Service to meet minimum standards as set out in the Adequacy and Effectiveness Regulations.

The Board submitted that the Board is entitled to set the qualifications provided that they relate to the job in question and provided that its actions were not arbitrary and done in bad faith. With the promulgation of the standards set out in the Adequacy and Effectiveness Regulations, the Board was required to change the requirements. Whether it was to fulfill a posting or a promotion, the qualifications required, are those sufficient to do the job.

The Board argued that the interpretation that has been given to Article 10.01 and 26.01 by Arbitrator Snow in the Aline Majors decision ought to be followed. The Board submits that deference should be given to the interpretation in an award between the same parties on the same wording of the collective agreement to maintain orderly relations between the parties. The burden is on the Association to show that the prior award of Arbitrator Snow is wrong (Bluewater District School Board v. Ontario Secondary School Teachers’ Federations District 7 (Class Size Grievance) [2008], 172 L.A.C. (4th) 144 (Tacon), Newfoundland Assn. of Public Employees v. Newfoundland (Department of Works, Services and Transportation (Group Grievance) [1994], 40 L.A.C. (4th) 372 (Oakley).

The result of following Arbitrator Snow’s decision is that in order for the Grievor to be successful, the Association must demonstrate that the Grievor has the skills, ability and qualifications of the position being applied for. The parties have not negotiated a different clause in this collective agreement which was negotiated after Arbitrator Snow’s decision to reflect any other criteria.

The Board submitted further that the wording of Articles 10.01 and 26.01 must be looked at together and submitted that the onus is on the Association to establish that the Grievor had the skills, and knowledge for the job being applied for pursuant to Article 26.01 and further, in matters of promotion, that the Grievor had to have the loyalty, activity, intelligence and conduct as it relates to the job being sought. P a g e | 17

The Board argued that a basic principle which has been adopted by arbitrators is that where there is no specific right to training in the collective agreement, a candidate for a position must demonstrate sufficient skill and ability to perform the job. This requirement occurs even in situations where the Board controls the ability to train an employee or where there are sympathetic situations where a candidate demonstrates that he or she is substantially capable, but another can do the job without training. Where it has not been restricted by the collective agreement, the Employer was not required to accept a candidate for a position who had courses which did not amount to the certification requirement by the Employer, and the Employer has not been required to award an applicant a position where the applicant had not done the job. In support the Board relied on Brown & Beatty, Canadian Labour Arbitration (4th ed.), vol. 1 paragraph 6:3230, and by example, the decisions of Ivaco Rolling Mills v. United Steelworkers of America, Local 7040 (Lefebvre Grievance) [1997]. 69 L.A.C. 1 (Adell), Northern Telephone Ltd. v. Communications, Energy and Paperworkers Union of Canada (Samson Grievance) [2000], 90 L.A.C. (4th) 146 (Herman). General Dynamics Canada v. Independent Union of Defense Contractors (Lynch Grievance) [2006] 150, L.A.C. (4th) 41 (Brown). In National Steel Car Ltd. V. United Steel Workers of America, Local 7135 (Rozon Grievance) [2005] 144, L.A.C. (4th) 189 (Welling).

The Board submitted that under this collective agreement the Grievor was not entitled to training. The Grievor had not asked for training and did not follow up on her interest in forensics. She had not taken any courses that would be relevant with the exception of a photographic course. This was not a situation in which the Grievor had placed herself in a comparable position. On the Grievor’s evidence she testified that she would need training on 17 out of the 35 tasks, and she admitted that she needed training to fulfill the knowledge requirement, which was a Critical Position Dimension, as stated in the Position Description and fundamental to the work. The right to training is a matter for bargaining, not for resolution through a rights dispute.

The Board submitted that the Employer acted reasonably. Chief Cook offered the opportunity to the Grievor to demonstrate that she was qualified to be an FIO even P a g e | 18 though he did not believe she was. He went to an unbiased party, the OPC, to create a test to assess whether a person was qualified as an FIO. The Board acknowledged that there were deficiencies in the test, but submitted that the test was relevant, was based upon the Basic Forensic Course, and not an advanced course, and was a reasonable method of assessing the candidates. Questions relating to police work had been reduced as Rick Devine knew that it was a civilian position, but some questions were still required as civilian FIOs would still have to know about police work. Rick Devine’s expressed reticence with increasing the number of forensic questions, only because he wished to protect the test bank by limiting the number of questions that may be circulated outside the OPC.

Even where the testing process had deficiencies the employee was not given the job when they could not prove that they were able at the time (Consumers Glass v. Aluminum, Brick and Glassworkers International Union, Local 269G (Cardoni Grievance) [1997] 61 L.A.C. (4th) 303 (Shime)).

The Board submitted that as there is no right to demand training and the Board is satisfied that there was no qualified internal candidate, the Board was entitled to look outside and use its discretion exercised reasonably to obtain the best candidate. The Board acted reasonably in considering Brian Solmes, and although Chief Cook believed that Brian Solmes was qualified, required Brian Solmes to take the test.

Finally, the Board submitted that retesting the Grievor is not an appropriate remedy as the OPC is even having difficulty in setting testing for re-certification. The more reasonable test is whether the person is capable of doing the principle tasks of the position. The Board submits that the Association did not satisfy the onus on it to demonstrate that the Grievor was so qualified.

The Board submitted that the role of the arbitrator is not to determine the proper qualifications, and not to intervene because other alternative methods could be available to assess candidates.

In support of its submissions the Board also relied on Canadian Union of Public Employees, Local 87 v. Schreiber (Township) (Job Description Grievance) [2003] P a g e | 19

O.L.A.A. No 674 (Dissanyake), Hart Chemical Ltd. and C.A.W. Loc. 1917 [1992], 30 L.A.C. (4th) 159 (Brown), T.R.W. Canada Ltd. v. Thompson Products Employees’ Assn. (Coons Grievance) [1999] 84 L.A.C. (4th) 327 (Goodfellow).

DECISION

The role of an arbitrator is to interpret and apply the collective agreement as it has been written by the parties. The nature of a dispute often arises as in this case, where each party has a different interpretation of the words, and therefore the role of the arbitrator is to examine the contract to ascertain the common intention of the parties by interpreting the contract on its plain and ordinary meaning, giving meaning to each word without the addition of other words. The language in issue should also be examined in the context of the agreement to provide an interpretation that is harmonious with the balance of the contract. If the contract language is found to be ambiguous, extrinsic evidence can be considered to determine the parties’ common intention.

The parties agreed in argument that the movement from the Classification Clerk Position to that of FIO would constitute a promotion. This Award therefore centres on the interpretation of Articles 10.01 and Article 26.01 of the Collective Agreement.

Articles 10.01 and 26.01 of the collective agreement state:

Promotion

10.01 With respect to promotion, preference will be given to those with the greatest length of service when supported by the necessary qualifications of loyalty, activity, intelligence and conduct.

26.01 When a job position becomes vacant, either permanently or temporarily…

(d) Civilian Members applying for a bulletined position, provided they are qualified, shall be given first consideration.

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The language of Articles 10.01 and 26.01 has not changed from the language in a preceding collective agreement which was interpreted by Arbitrator Snow in an Award between these parties on the Aline Majors Grievance.

There are compelling reasons to follow the interpretation of language which has not changed in successive collective agreements between the parties. Where a provision of the collective agreement has been interpreted in a previous arbitration award, although the prior award does not bind the arbitrator in a subsequent arbitration, great weight is usually given to such an award in order that the parties may base their actions upon a consistent interpretation of the contract that regulates their relationship. Further, when it does come time to bargain a new collective agreement, the parties have an understanding of how the language has been applied, and then have the opportunity to negotiate a change in language to reflect a different intention, if so desired. Where there is an earlier award in which identical language between the same parties has been interpreted, it should be followed unless the prior decision can be considered clearly wrong. As quoted from Canadian Airlines Ltd. (1999), 82 L.A.C. (4th) Ready, at paragraph 23 of the Bluewater District School Board Award (supra):

The generally accepted approach to the issue of what weight should be given to prior awards appears to have been expressed by the Professor Laskin Brewers’ Warehousing Company Limited (1954), 5 L.A.C. 1797 (Laskin). In the result, contemporary boards of arbitration adopt a posture of deference and restrain in the face of decisions of other boards previously seised of the same issue between the same parties. They apply what may be described as a presumption that the prior award should not be disturbed unless it is clearly or patently wrong. In this regard the approach is not unlike that taken by courts in the judicial review of the decisions of inferior tribunals protected by a privative clause: if the prior decision is one that could be reasonably made, even if it might not have been the decision the second tribunal would have made, it should not be disturbed. Where however, the prior decision has plainly been based upon a fundamental error in principle, it should not be followed.

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Therefore the first consideration is whether the decision made by Arbitrator Snow was “reasonably made” or was it based upon a fundamental error in principle, and should not be followed.

I accept the rationale and findings that Arbitrator Snow made in resolving the issues before him as “reasonable” and “not wrong” and in line with the language of the collective agreement and consistent with the purpose of such clauses. Even though Arbitrator Snow found that as Article 10.01 was unclear, it was ambiguous, when mere lack of clarity or even arguability does not necessarily constitute ambiguity and he interpreted the language without resorting to extrinsic evidence, his rationale is reasonable.

In the Aline Majors decision, the grievor was a Clerk who applied for the position of Dispatcher. She did not receive the position as she was only able to perform 19% of the skills, and she admitted that she was unfamiliar with 12 of the 19 tasks and would need training, which normally took one year. Two part-time applicants on the other hand, who had had the opportunity to learn the tasks, were able to perform 100% of the tasks. As he found that the Grievor was not able to fulfill the necessary qualifications of the dispatch position, the grievance was dismissed.

Arbitrator Snow analyzed the grammatical construct of Article 10.01 and took a purposive approach in his interpretation, an approach which is commonly taken in interpreting collective agreements, and accepted the Board’s argument as the most probable. Such an approach is often used in interpreting collective agreements which are unclear, taking into account general principles that have developed in the labour field, which although not introduced as extrinsic evidence to support an interpretation, provide context and a better understanding of what the parties most likely intended their agreement. Arbitrator’s Snow’s interpretation is consistent with the language chosen by the parties, and is not at odds with general labour principles.

After Arbitrator Snow found that moving from the Clerk position to that of Dispatcher was a promotion, he held that the selection of the candidate was regulated by Article 10.01 of the collective agreement, and the necessary qualifications of loyalty, activity, P a g e | 22 intelligence and conduct as articulated by the parties were unclear and ambiguous. Arbitrator Snow considered what Article 10.01 would have meant if “necessary qualifications” were not included, and concluded that in that case, the Association might then have been reasonably able to claim that only the attributes of loyalty, activity, intelligence and conduct were required. He then turned to the words of the agreement as they were written and concluded that as the parties had included the words “necessary qualifications” these words had meaning, such that the qualifications listed were not attributes to be considered in a vacuum and divorced from the job, but were tied to the position sought. Accordingly, the applicant had to have these qualifications to the degree necessary to do the work of the position sought.

Arbitrator Snow also interpreted Article 10.01 to be as what is colloquially known as a “sufficient ability” clause, such that it did not create a competition for the best applicant, but gave preference to the senior applicant with sufficient necessary qualifications to do the job, whether or not there was a junior candidate who would be better suited or better qualified for the job. He remarked at page 15 that it would be unlikely that the parties intended that a person who was loyal, intelligent and active with good conduct who was unable to perform the job would be given the job in preference to a less senior applicant who had these qualifications, but was able to do the work. He stated that he did not think that the parties intended to promote someone who could not do the job in preference to one who could. Therefore he concluded that a person seeking a promotion must demonstrate that he or she has the qualifications necessary to do the job, and then the senior such applicant would receive the job. He further noted that there was nothing in the collective agreement that entitled an employee to training. He found that as the Ms. Major could not do the job on application, she lacked these qualifications.

Arbitrator Snow’s interpretation accords with the general consensus of arbitrators, and supported by the cases presented, that if a person is applying for the position that they come to the position with the credentials and the present ability to do the positions at hand. P a g e | 23

To accept the Association’s argument on the interpretation of Articles 10.01 and 26.01 would require reading into the clause words which the parties did not choose. To conclude that the necessary qualifications of the attributes listed in Article 10.01 were to be considered by themselves without regard to the position applied for would require reading “only” into Article 10.01, which the parties did not use.

Arbitrator Snow’s interpretation is also supported if Article 10.01 is interpreted along with Article 26.01. In the case before me, the meaning of Article 26.01 needs to be addressed, and to ensure that the meaning given to Articles 10.01 and 26.01 meaning is harmonious. Adopting the plain meaning of “qualified” in Article 26.01 adds clarity to Article 10.01 when interpreting what is required to be promoted into a vacant position. Deputy Chief Williams relied on Webster’s dictionary meaning of “qualified” in his response to the Grievor and pointed out that “qualified” was defined as “1.a: fitted (as by training or experience) for a given purpose: COMPETENT b: having complied with specific requirements or precedent conditions (as for an office or employment): ELIGIBLE”. This definition has been applied generally in labour matters and the arbitral jurisprudence has been summarized by Brown & Beatty in Canadian Labour Arbitration (supra), to require the applicant to have the credentials or education requirements and background to step into the position and work competently in the position sought, allowing for a brief period of familiarization without a right to training unless such right is provided in the collective agreement. The necessity of having present ability to work is pointed out in Ivaco Rolling Mills (supra) even in difficult situations where technical skills are required and cannot be obtained without training.

Both parties agree that the effect of Article 26.01, that when filling a vacant position, when comparing a civilian member with an external candidate for the position, preference is given to the civilian whose qualifications meet that minimum threshold. However, the Association submitted that “qualified” meant that the civilian only had to have the qualifications listed in Article 10.01. The language does not provide that the mere status of being a senior civilian member who is loyal, active, has intelligence and conducts him or herself well, confers the right to the position, which would be the effect of accepting the Association’s argument. As the qualifications listed in Article 10.01 are P a g e | 24 unusual and specific to these parties, if the parties had intended that an external candidate needed to have the credentials and ability to do the job, but the civilian member was not under the same criteria, the necessary qualifications listed in Article 10.01 would have to have been inserted into the collective agreement to modify the plain meaning of “qualified” in the case of the civilian member.

Although greater clarity is often provided in many collective agreements where skills, abilities, or knowledge of a position are expressly required, as discussed by Arbitrator Snow, and as seen by these parties in the sworn collective agreement for the Inspector position, the omission of these criteria does not detract from the plain meaning of “qualified” and nor do the qualifications listed in Article 10.01 limit the meaning of “qualified” in Article 26.01. I see the necessary qualifications of loyalty, activity, intelligence and conduct as an adjunct to the credentials that are required as a result of Article 26.01.

Therefore although Arbitrator Snow founded his decision on a finding of ambiguity, removing that premise, his interpretation of the collective agreement remains reasonable and is not wrong and should be followed. Accordingly, by application and with the comments I have added it would incumbent upon the Association to prove that the Grievor has the minimum qualifications as listed in Article 10.01 as applied to the position sought and the credentials and ability to step into the position, such that she could perform her job competently with a short familiarization period as required by Article 26.01.

The Association was not able to establish that the Grievor had either the credentials or the equivalent skills required to perform the fundamental tasks of the job, to perform forensic investigations. The Grievor is in a similar position to that of Ms. Majors, in that she admitted that she was not able to perform many of the principal tasks of the position without training. First and foremost, the Grievor did not have the qualifications to attend at crime scenes and attend to forensic matters, as she had not been hired as an FIO and had not taken the requisite course. She had taken one online course on DNA forensics, but for any other aspect that touched on the analysis and processing of forensic matters she admitted that she would need training, and she had not attended P a g e | 25 an autopsy, which is now required for the Basic Forensic Course. She did have a level one photography course, and had taken computer courses and her experience and background most likely would have given her the ability to do the supportive tasks. In her view, she was able to meet the Desirable Qualifications. Although Chief Cook was not totally in agreement that she could meet all the Desirable Qualifications, she could meet most.

I do not find that the process which the Employer was unfair and prevented the Grievor from demonstrating that she was qualified under the terms of the agreement, as submitted by the Association. The test was developed to determine whether without the certification a candidate could still be qualified and competent as a FIO. It was designed to test present ability, which is acceptable under the plain meaning of “qualified”. The fact that Brian Solmes who everyone considered qualified did not reach the pass mark for the test with his mark of 71%, gives rise to some conjecture. It indicates that there may have been a problem with the test, he may have had an off day, if he had known the nature of the test and had had time to review any material he had on hand he may have done better, the pass mark may have been set too high, but in any event, he had an opportunity to overcome his results in an interview, which was the process which Rick Devine had understood was to be applied in conjunction with the test.

The test had some defects, such that ten of the questions were acknowledged by Chief Cook as not relevant to the job. Some questions came from the recertification bank, but it was not proven that they should have been excluded as not testing basic knowledge. Brian Solmes testified that some in his view came from the Advanced Courses he had taken, but Rick Devine was not challenged on the level of the questions, and I accept that the questions as constructed excluding those which Chief Cook acknowledged were not relevant to the job in North Bay, were an appropriate test of the qualifications of an FIO. Even taking the problems into account, the Grievor would not obtain a passing mark.

Had the interpretation of Arbitrator Snow been wrong, and the necessary qualifications were only those attributes listed in Article 10.01 in a vacuum, the Association may have P a g e | 26 been able to successfully argue that the test would not have allowed the Grievor to demonstrate those qualities, and even if she had had an interview, the questions asked of the candidates were not directed to examining these qualities.

However, that is not the test that the Grievor had to meet. Even assuming the Grievor had the opportunity to have an interview and could have expanded on examples which would support her commitment to the Service, activities within the community, and assistance in the paperwork required for a large investigation, to demonstrate general qualities of loyalty, activity, intelligence and good conduct and a clean record, she could not demonstrate that she had the either the necessary credentials or any technical skill to be able to step into the position and carry out a forensic investigation from beginning to end at court, which is the essence of the position, without training.

There is nothing in the collective agreement that provides such an entitlement. Therefore under the plain interpretation of Articles 10.01 and 26.01 the Grievor is not “qualified” as an FIO, and, she does not have an entitlement to be trained under the collective agreement, and therefore she does not have preference over an external qualified candidate.

In this very unique situation, the strict application of the plain language of the collective agreement does not end the matter. Notwithstanding that the literal interpretation of Article 26.01 requires an internal candidate to be qualified and therefore come to the job with the present ability to do the job, which in my view is the correct interpretation of Article 26.01; the Employer has not applied that interpretation to the forensic identification positions in the past.

Previously the Employer had interpreted and applied “qualified” for this position as “being capable” because every person who had obtained the preceding position of Technical Services Technician, the essence of which was the same as the FIO position, to carry out forensic investigations, did not have the certification required to carry out the job on receiving the job, but was considered qualified for the position, and was offered the opportunity to attend the OPC or the CPC for Basic Training and Certification to gain the required expertise after acquiring the position. The Employer’s P a g e | 27 application of the collective agreement was consistent with the requirement of the OPC which requires an applicant to have a FIO position before entering the program.

The Service’s practice has therefore been to interpret “qualified” for the forensic investigation position as to being “capable” of obtaining the qualifications necessary to do the job after receiving the position.

Interpreting “qualified” as the Employer is now doing, eliminates any civilian member from obtaining this position. It has rendered Article 26.01 meaningless as it relates to this position. The only way a person can become an FIO is through the OPC or CPC, and the selection criteria of the OPC is that the person has to be either a civilian or sworn member, has to review extensive training modules and then pass the eligibility exams, and has to be, or about to be an FIO. The individual then has to complete an intensive nine week course and pass the OPC examinations. There is no alternative way that an individual can become qualified as an FIO at this time. Although the Regulations permit a person to have equivalent qualifications, no witness was aware of anyone who had obtained an FIO position on the basis of equivalent qualifications. The evidence was that the courses which are available in Ontario and throughout the country would be useful, but are not a substitute for the OPC/CPC training, and there is no university or college that could provide the degree of training that is necessary to perform this job.

The issue is therefore, is there a breach of the collective agreement where there is a change in practice and application of the collective agreement when the effect of the change in the application of the collective agreement denies the members of the bargaining unit access to the forensic identification position, which they formerly had, which is the result of the Employer’s change in practice in its application of Article 26.01 and 10.01.

The Employer was entitled to eliminate the previous Technical Service Positions and create the FIO position, and change the qualifications for a forensic position to reflect the tasks of the job or the requirements of the legislation, subject to the rights bargained in the collective agreement. The right to manage its workplace is clearly recognized in P a g e | 28

Article 25, its management rights clause. The right to manage is limited only by the collective agreement and the Police Act. As a result, the Employer may determine what positions are required, what functions the position performs, and what qualifications are necessary, and the Employer may unilaterally alter, modify and extend job descriptions during the lifetime of a collective agreement, unless it is limited or prevented from doing so in the collective agreement. As mentioned by Arbitrator Dissanyake in the Township of Shreiber case (supra) these rights have been recognized as far back as 1961 as being accepted in Re Union Gas Co. of Canada (1961) 12, L.A.C. 58 (Reville), and they have continued to be accepted provided that the employer is not establishing or using the qualifications arbitrarily, unreasonably or in bad faith or as a guise to defeating employee rights under the agreement. By implication if an employer has the right to change qualifications and job descriptions, looking at the concept theoretically that would mean it could open opportunities to some employees and close opportunities to others and not offend the collective agreement.

However, notwithstanding management’s rights, the Association has understood by the Employer’s conduct, that the necessary qualifications or the threshold which the member has to meet for this particular position to be qualified, is the capability to obtain the credentials. The parties have had a shared understanding as to the meaning of “qualified” in this instance which is different from the plain meaning of the contract.

When the Adequacy and Effectiveness Regulation was promulgated, the Service did not advise the Association that as a result of the Regulation that their practice would change in the future if a vacancy arose in this position, and therefore when Arbitrator Snow issued his award, the Association had no notice that despite necessary qualifications meant that the person had to be able to do the job as is normally required in filling vacant positions, that the common understanding as it applied to this particular position would longer be applied.

Therefore the Association had no knowledge that if it wished to maintain access to this position for bargaining unit members that the issue of access to the position needed to be raised as a bargaining issue in the subsequent round of collective bargaining, and accordingly the Association relied on the representations of the Employer to its P a g e | 29 detriment. This situation is similar to Oak Bay Police Board and Oak Bay Police Association (supra) where the arbitrator applying the principles of estoppel recognized that management can develop and create new positions, but when it also created a new rank which impacted the structure and hierarchy of the police force as a whole, it was reasonable to expect that the Association would have fair warning of the employer’s intention to allow it to be a subject of collective bargaining.

Although keeping each civilian position separate and apart and not available for movement may be more manageable from a management perspective, a training perspective and an economic perspective, the collective agreement provides rights to the civilian members to seek vacant positions, if they are qualified, and to seek promotions if they have the necessary qualifications. Although the right of promotion in itself has not been removed, the right to be promoted to this bargaining unit position from within the bargaining unit had always been there and was removed, without notice and without any ability of the Association to negotiate the issue and attempt to pursue its interests. As a result, I find that the Employer is estopped from relying on the plain interpretation of Article 26.01 as it relates to this position.

In turning to the appropriate remedy, a re-run of the competition is not necessary, as the Grievor is the most senior civilian applicant who was seeking the position, and was considered by the Employer as capable of obtaining the credentials and having the potential to become an FIO and thereby is “qualified” for the position, as applied by the practice of the Employer and relied upon by the Association. Accordingly, the Grievor is entitled to be placed in the FIO position in order to be able to be considered for selection by the OPC. However, as the course runs from time to time, and the Adequacy and Effectiveness Regulations require a person holding the position be certified or have equivalent qualifications, the Grievor cannot hold that position until graduation from the Basic Forensic Course. Therefore the Grievor will only be entitled to be promoted to this position upon graduation from the OPC course.

This Award should thereby allow the Grievor to apply to the OPC and be considered for selection and receive the training modules or any other materials the OPC provides to allow her write the eligibility exam, if accepted. If the OPC requires attendance at an P a g e | 30 autopsy as part of the selection procedure, the Employer is to make such arrangements.

The grievance is thereby allowed and I will remain seised with respect to the implementation of this Award.

I would like to thank Counsel for their excellent and thorough presentation of the case, including the numerous cases which were of assistance.

Dated at Toronto, this 19th day of November, 2010

“Belinda A. Kirkwood”

______Belinda A. Kirkwood, Arbitrator

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