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IN THE MATTER OF AN ARBITRATION

BETWEEN:

TORONTO POLICE ASSOCIATION(hereinafter called the Association)

- and-

TORONTO POLICE SERVICES BOARD(hereinafter called the Employer)

- and -

SIX GRIEVANCES

SOLE ARBITRATORPROFESSOR IAN A. HUNTER

REPRESENTATIONS:

FOR THE ASSOCIATION: Mr. Roger Aveling, Counsel

FOR THE EMPLOYER: Mr. Bruce K. Stewart, Counsel

FOR STAFF SERGEANTRALPH BROOKES: Mr. John E.F. Gibson, Counsel

ARBITRATION HEARINGS WERE HELD IN TORONTO, ONTARIOON MAY 12 AND 27,2004

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DECISION ON PRELIMINARY ISSUE (II)

(1) Introduction

Before me are a total of six (6) grievances involving five (5) Toronto police officers

(Costabile, who was two (2) grievances; Broske; Colmenero; Crisanti; Pignatelli), all of

whom at the relevant time were members of D platoon at 14 Division. 14 Division is a

busy, downtown division.

All ofthe Grievors were signatories to a letter, prepared by P.C. Costabile (a Toronto

Police Association Steward at 14 Division) in April, 2002 concerning personnel issues and

alleged morale problems in 14 Division.

As a result of this letter, Toronto Police Internal Affairs began an investigation in

May, 2002. Over the next four (4) months, approximately ninety (90) officers (including all

five (5) Grievors) and civilians/employees were interviewed by the investigator (Inspector

Qualtrough) or his assistants.

On September 23, 2002 Inspector Qualtrough's Report (Exhibit 4A) was released.

The Report thus describes the allegation under investigation: "That Staff Sergeant Ralph

Brookes through favouritism, deceit and improper manipulation in the exercise of his

authority has created a troubled work environment that greatly affects the morale of the

platoon."

The Report, and its conclusion, will no doubt figure prominently in my eventual

decision. It is sufficient, for now, to note that each Grievorwas either (a) transferred or (b)

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reassigned out of 0 platoon, based on the Qualtrough investigation and Report. Those

"moves" (to employ a neutral term) are the gravamen of the grievances (Exhibit 1) before

me.

(2) The Grievances Before Me (Exhibit 1)

With the exception of the Costabile transfer grievance (Exhibit 1, Tab 1), all other

grievances summarize the nature of the grievance and the remedy sought in identical

terms (I use Broske's grievance as illustrative (Exhibit 1, Tab 2):

Please be advised that the above-noted member and the Association are grievinghis recent reassignment. On the basis of what the TPA currently understands tohave happened, we are contending that the direction given to him that he was tomove to another platoon was discriminatory, without reasonable cause, and an actof discipline, all of which is contrary to the management's rights clause of theuniform collective agreement. We reserve the right to allege other violations of thecollective agreement if they subsequently become apparent. As remedy, we seekthis officer's immediate placement back on his original platoon.

It should be noted that all grievances were processed (a) through the Collective

Agreement grievance procedure (Exhibit3,Article 15); (b)through the conciliation process

set out in the Police Services Act, section 123. In addition, the parties voluntarily sought

the mediation services of Mr. Kevin Whittaker in August 2003.

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(3) The History of This Arbitration

On July 21, 2003 I received a fax from Mr. Roger Aveling, Association Counsel,

requesting me, on behalf of both the Toronto Police Association and the Toronto Police

Services Board, to act as arbitrator.

I replied on July 24,2003 accepting the appointment and proposing possible hearing

dates.

The arbitration hearing convened on December 10, 2003 at which time I heard

lengthy and helpful opening statements from both counsel. On the next date (December

15,2003) I heard arguments, and receivedwritten submissions, on a preliminary objection

raised by Mr. Stewart concerning the scope of relief claimed by the Association. I reserved

my decision and on January 12, 2004 I issued a written decision on that preliminary issue

(I).

In light of the grievances (Exhibit 1), the opening statements of both counsel, and

the submissions advanced on the preliminary issue, I expressed to both counsel my

concern that Staff Sergeant Ralph Brookes was someone whose interest could be affected

by this arbitration, and I requested that he be given notice in advance of the resumption

of hearings on May 12, 2004.

In compliance with that request, Mr. Aveling wrote to Staff Sergeant Brookes on

March 18, 2004 as follows (Exhibit 5):

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Dear Mr. Brookes:

Toronto Police Association &Toronto Police Services Board,Grievances of Costabile, Broske, Colmenero, Crisanti & Pignatelli

The arbitrator in the above noted matter has requestedthat I provideyou withformal notice of the hearingdates which have been established. Please beadvised,therefore,that the arbitrationwill take placeon the followingdays:

Re:

May 12, 27, 28, 2004June 14, 15,22,23,2004October 18, 28, 29, 2004December 7, 8, 13, 14, 16, 17,2004

If you have any questions please do not hesitate to contact me.

Yours sincerely,

TORONTO POLICE ASSOCIATION

Roger AvelingLabour Relations Counsel

Unbeknownst to me - and, I am advised, unbeknownst as well to Mr. Stewart, Staff

Sergeant Brookes had much earlier requested of the Toronto Police Association some

voice in its decisions with respect to the Costabile et al grievances (Exhibit 1).

Specifically, on July 5, 2002 Staff Sergeant Brookes wrote to the Toronto Police

Association as follows (Exhibit 6, Tab 1):

Mr. Craig BromellPresident

Re: Internal Complaint 2002-INT-0193

DearSir,

I am advised that you have been made aware of the initiation of an internalcomplaint, through a petition, by P.C. Gino COSTABILE, a Steward of Number 14Division.

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Q This complaint states that "it is alleged that the subject officer throughfavouritism, deceit and improper manipulation in the exercise of his authorityhas created a troubled work environmentthat greatlyaffects the morale of theplatoon".

This complaint was initially directed towards the Internal Affairs Unit, but wasreceived by S/Supt. Blair who has assigned Insp. Robert Qualtrough and twodetectives to investigate.

I am advised that the investigativeportion has been completed. As the last witnessand subject officer, I have been recently interviewed at length (four hours),concerning these issues at 55 Division, by Insp. Qualtrough and one of thedetectives. We are awaiting the findings and outcome of Insp. Qualtrough's report.

I would first like to take this opportunity to thank Mr. George Jackson for his adviceand counsel. Throughout the investigative process, Mr. Jackson provided sound,consistent and positive assistance. I have, on several occasions, had theopportunity to utilize Mr. Jackson's services or sit with him on various committeesand it is an honour and a privilege to do so. He represents many things that areright within the Association. He continues to work tirelessly to assist members invarious issues.

Mr. Jackson has the various copies of the petitions and allegations should you wishto review them.

() I wish to bring to your attention, however the behaviour of P.C. Costabile.

There are some very disturbing issues, which I believe our Association shouldaddress.

Notwithstanding the document is full of rumours, innuendo, falsehoods andhistorical misinformation, this Steward has launched this complaint through apetition with a view to retaliate against an unpopular decision, made by the UnitCommander, which affects him and him alone. Hehas put members of 14 Division,past and present, including D Platoon in jeopardy by forcing them through aninterview process. I am advised that in excess of eighty seven (87) members havebeen interviewed.

I am advised by my Sergeants, from feedback from the officers themselves thatsome of them were coerced into signing by the utilization of the names of DirectorsRick Mcintosh and Andrew Clarke, as supporters and motivators behind thiscomplaint.

I am personally advised by several former membersof my shifts and platoons of hiscontact, from as far back as 10 years, with the view to supporting his personalagenda of revenge.

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I am equally disturbed about his misguided comments and complaints. Hecontinues to publicly blame mefor his issueswhich date back several years, despitehaving full disclosure that reveals my only role in his issues were to take a phonecall, to assign a Sergeant to deal with the irate callerand to pass the information on.These are duties, which I am required to do.

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Notwithstanding what this Steward has put me through personally, the men andwomen of 14 Division have been subjected to an investigation which has not beenpositive for themselves or their careers. Some have been put to the test byseasoned investigators and may now face consequences for participating insomething which they had no information about, no reasons to participate in orissues to speak about.

They were bullied, coerced and pressured into participating, for the personalrevenge of this Steward.

I am well aware of the appropriate steps to be taken when members disagree withthe directions of Command and Senior officers of the Service. This matter was notdealt with in such an appropriate fashion.

It is in this vein that I believe the Toronto Police Association should review thismatter along with the expected report of Inspector Qualtrough's investigation. Ihave serious concerns about the nature and quality of information that he continuesto supply to our young officers.

This Steward's activities are in direct contrast to the supportive, positive role of theChief Steward within the unit, P.C. Marcel Chiasson.

It is my opinion that our Association is in jeopardy by having P.C. Costabile remainin the position of Steward. The best interests of our members are certainly not thepriority with this Steward. I believe that the Boardof Directors under your guidanceshould review this entire matter and assess whether it is in the best interests of ourmembership to have this officer remain in the position of Steward.

I am available for any questionsyou may have. This document is not for publicationor distribution.

On August 26,2003 Mr. Martin Weatherall, Toronto Police Association Director of

Legal Services, wrote to Ms. Maria Ciana, Manager of Labour Relations for the Toronto

Police Services Board, clarifying the remedies to be sought at arbitration in the Costabile

et al grievances (Exhibit 1):among the remedies soughtwas: "An order that Staff Sergeant

Brookes be transferred out of 14 Division".

On October 16, 2003 Mr. Eugene Kosziwka, Analyst, Labour Relations at the

Toronto Police Association, wrote to Staff Sergeant Brookes as follows (Exhibit 6, Tab 3):

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0 Please find enclosed the five grievances which are proceeding to arbitration to beheld commencing December 10, 2003 and continuing, if necessary, on December11,15,16, and 18 as well as on May 12, 27, 28, June 14 and 15,2004. Thegrievances appear to concern the transfer of Constable Costabile from 14 Divisionand the reassignment of the other grievors within 14 Division.

The Board will be defending the transfer and the reassignments.

After these grievances had proceeded through the grievance process and thestatutory conciliation processunder the Police ServicesAct, theAssociation notifiedthe Board on August 26, 2003 (enclosed) that they would be seeking an order fromthe arbitrator that you "be transferred out of 14 Division". We also enclose a letterof August 27, 2003, from the Toronto Police Service to the Toronto PoliceAssociation in reply to its letter of August 26, 2003. Counsel for the Police ServicesBoard will be taking the position before the Arbitrator that such an order cannot bemade.

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However, as your mandatory transfer from 14 Division is sought by the TorontoPolice Association and the five grievors you are, in the opinion of counsel for thePolice Service Board, entitled by law to be notified of these proceedings and toparticipate in the proceedings to the extent you may wish and as may be permittedby the Arbitrator.

As a member of the Toronto Police Association, you may be entitled to legalcounsel provided or paid for by the Toronto Police Association we suggest youcontact the Association in that regard if you wish.

We enclose a copy of Arbitrator Ian Hunter's letter setting out the times and theplace of the hearing. If you have any questions concerning the foregoing, pleasedo not hesitate to contact the writer or, if you wish, Mr. Roger Aveling - 416-491-4301, counsel for the Toronto Police Association and the five grievors.

You will note that copies of this correspondence have been sent to the PoliceBoard's counsel, Bruce Stewart and to the Association's Counsel, Mr. RogerAveling.

On October 18, 2003 Staff Sergeant Brookes wrote to Mr. Terry Nunn, Toronto

Police Association Director of Legal Services, as follows (Exhibit 6, Tab 4):

Attention; Mr. Terry NunnDirector of Legal Services

Personal and Confidential

0 DearSir,

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0 Please find attached, a document dated 2003/10/16 from Mr. Eugene Kosziwka,Analyst, Labour Relations which relates to a series of grievances and a pendingarbitration process.

In the document I am advised, that through the arbitration process, the TorontoPolice Association (my representative organization) is seeking a mandatory orderfrom the Arbitrator that I be transferred from my current unit at 14 Division.

Mr. Kosziwka advises that I may be entitled to legal counsel provided or paid for bythe Toronto Police Association and I hereby request that that process be initiatedat the earliest available opportunity.

A brief history of this issue will perhaps enlighten you.

In October of 2001, I returned to a uniform Staff Sergeant's position and I wasplaced on D Platoon. I had lengthy discussions with the Senior officers of the unitand received my direction about the manner in which the platoon was to behandled. There were very serious issues which related to discipline, supervisionand direction.

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Ican advise you that the necessarycorrectionswere made immediately without anynegative impact upon anyone, not one negative documentation was created and infact, the platoon flourished as it should. The corrections were not aimed at, nor didthey influence in any fashion the grievors in this matter.

In April of 2002, seven months after my arrival and after his mandatory placementin the training program, Gino Costabile initiated, I am advised with the permissionand direction of Directors Andrew Clarke and Rick Mcintosh, a petition criticizingand condemning my management practices and styles. The petition suggested amorale problem on the shift and within the station.

Gino Costabile, with Director Clarke present, personally presented the documentthrough Internal Affairs and an internal investigationwas initiated. Iwas notified asbeing the subject officer and the matter was then extensively investigated by Insp.Bob Qualtrough and a team of investigators under his direction.

That investigation took several months to complete and involved, I am told, theinterviewing of some ninety (90) witnesses. I was assisted through the process byMr. George Jackson.

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The result of this investigation revealed in fact, the perpetrator of the moraleproblem was Gino Costabile. The investigation revealed the members did notsupport his allegations and in fact disclosed a personal vendetta against me.Furthermore it reflected serious credibility issues within the documents whenmembers were interviewed and either had been coerced, harassed or bullied tosign, or certain members had their names attached without their permission or insome occasions, or their signatures were forged.

I am advised that the investigationalso revealed that prior to my arrival in October,Gino Costabile held a series of meetings designed to develop strategy to removeme from my position as the Staff Sergeant in charge of the platoon. The other

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C)grievors, I am advised were active participants in those meetings. This action wasnothing short of mutiny.

A copy of Insp. Qualtrough's synopsis is attached and is confidentially placed inyour care.

Upon the completion and formal presentation of the report, Superintendent PaulGottschalk made certain decisions regarding the movement of Gino Costabile andthe others.

In a very private telephone conversation, Director Andrew Clarke has privatelyapologized for his role in supporting Gino Costabile. He is the only one to do so.

I can advise you that I seek legal assistance for a number of reasons.

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The actions of Gino Costabile, supported by Directors Clarke and Mcintosh wasdesigned to attack me both personally and professionally. A serious investigationtook place which was profound, extremely stressful and I believe designed tointimidate, harass and annoy. However the result of that investigation not onlyexonerated me, but placed the responsibility of this vexatious and frivolous actionat the feet of Gino Costabile.

However, I am completely horrified to determine that despite knowing the outcomeand responsibility for this act, the Police Association continues to support andpropagate these allegations.

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Not only that, despite knowing the results of the investi~ation, my Association, ofwhich I have been a member, recently entering my 30 year, seeks to have memoved from my unit, a unit that I have served in for the past eleven (11) years,without my input, direction or permission.

I believe that I am entitled to legal representation to;1) participate in and against the remedies sought by the grievors and the

Toronto Police Association2) seek an order of compensation for mental anguish against Gino Costabile

and perhaps at least one other grievor3) seek an order of compensation for mental anguish against the Toronto

Police Association for a continued course of action despite the knowledgethat the basis for the action is completely without meritsuch further or other relief as may be appropriate, including punitivedamages against the Toronto Police Association, certain and specificdirectors and the grievors.

As always, I am available to discuss any possible remedies to this situation.

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On November 27,2003 Mr.Aveling wrote to Mr. Stewart (Exhibit 2, Tab 9) advising

that the Toronto Police Association would no longer pursue that part of their remedy that

requested that Staff Sergeant Brookes be transferred out of 14 Division.

There are other letters and documents (in Exhibit 6) relating to Staff Sergeant

Brookes' efforts to obtain standing, legal representation, and indemnity for his legal costs,

through the Toronto Police Association, but the foregoing are sufficient to provide the

background and context for my decision in December 2003 to request that Staff Sergeant

Brookes be given notice of the arbitration proceedings, and Mr. Aveling's subsequent

giving of notice on March 18, 2004 (Exhibit 5, quoted supra).

(4) Decision

On May 12, 2004 Staff Sergeant Brookes appeared with Mr. John Gibson, as his

counsel of record.

Mr. Gibson filed (a) a Brief of Documents (Exhibit 6, from which I have quoted

above), and (b) two "grievances" which, for the purposes of this preliminary issue only, I

entered as Exhibit 7.

The first grievance is against Costabile, Broske, Crisanti, Pignatelli, and Colmenero

and seeks, by way of remedy: (a) five hundred thousand dollars ($500,000) against each

Grievor in damages; (b) a cease and desist order to prevent each Grievor from continuing

the "campaign of harassment anddefamation"; (c) a signed,written apology; and (d) costs.

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to arbitration (Article 15.04 (b)); and (f) most important, I have not been appointed as

arbitrator, either by consent of the parties (Police ServicesAct, Section 122 (2) (2)) .orby

the Solicitor-General, or by the Police Arbitration Commission (Police Services Act, Section

122 (2)). I reject the suggestion, advanced somewhat cavalierly by Mr. Stewart and Mr.

Gibson, that these procedural and statutory defects can be either (a) ignored, or (b) "cured"

by me now referring the Brookes grievances to the Solicitor-General for conciliation and/or

arbitration pursuant to the Police Services Act, Section 124 (2).

I hold that I have no jurisdiction, either under the Collective Agreement (Exhibit 3),

or under the Police Services Act, or by mutual consent of the parties, to hear and

determine Staff Sergeant Brookes grievances.

Having so held, I observe that at least as early as July 5, 2002 Staff Sergeant

Brookes wrote to the Toronto PoliceAssociation (Exhibit 6, Tab 1) expressing his concern

about Constable Costabile's allegations. From July 2002 until today's date (July 15,2004)

Staff Sergeant Brookes' expressed concerns appear to have received little consideration

from the Association of which he is a dues-paying member. In August, 2003 his

Association sought his transfer out of 14Division (Exhibit6, Tab 2), a remedy only dropped

by the Association on November 27, 2003. Staff Sergeant Brookes' concern about the

effect that the Costabile et al grievances may have on him, and his evident frustration at

the response of his Association, the Toronto Police Association, are readily understandable

to me, although as a matter of law I have no jurisdiction to deal with his grievances (Exhibit

7).

I turn then to the rights enjoyed by Staff Sergeant Brookes, as someone given notice

ofthese proceedings, in respect of the grievances (Exhibit 1) of which I am properly seized.

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Mr. Aveling submitted that Staff Sergeant Brookes "has two options": (1) a civil suit

for defamation and/or any other remedy against the individual Grievors and the Toronto

Police Association; or (2) to process his grievances (Exhibit 7) in accordance with the

Collective Agreement and the Police Services Act. But, in Mr. Aveling's submission, Staff

Sergeant Brookes has no standing in the arbitration hearings before me.

I disagree.

Given (a) the nature of the allegations the Grievors, individually and collectively,

advance against Staff Sergeant Brookes; (b) that Section 128 of the Police Services Act

will make any arbitration decision I make binding, inter alia, on Staff Sergeant Brookes; (c)

that the Exhibits filed to date, and Mr.Aveling's opening statement, provide evidence of an

attack by the Grievors on Staff Sergeant Brookes' supervisory abilities, competence and

integrity; I hold that the requirementsof natural justice will be satisfied only if Staff Sergeant

Brookes is given (a) notice of the hearings; (b) the right to counsel; (c) the opportunity to

call, examine, and cross-examine witnesses; and (d) the right to make closing argument.

Of the many cases cited to me by counsel the one I found most apposite is Mr.

Kaplan's decision in O.P.S.E.U. v. Ministry of Transportation (1994, unreported). That

case involved an allegation of sexual harassment, and the Board of Arbitration granted

standing to two individuals on the ground that their interest in the proceedings was "vital

...direct ... and compelling". Specifically, Mr. Kaplan wrote: "The outcome ... may be the

issue of an award that makes findings of fact permanentlydamaging to Mr. [X's]

reputations and standing in the community".

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In the instant case, I hold that Staff Sergeant Brookes' interest is "... vital... direct

... and compelling". This is shown by the fact that for a period of time (albeit no longer) one

remedy sought by the Toronto PoliceAssociation was Staff Sergeant Brookes' transfer out

of 14 Division. At this date, it appears likely that I shall be asked to make findings of fact

damaging to Staff Sergeant Brookes' reputation, particularly within the tight-knit police

community, but perhaps also in the wider civilian community.

It is not enough to say that Mr. Stewart, who will ably represent the Toronto Police

Services Board, will take care of Staff Sergeant Brookes' interest. At this early stage (with

no viva voce evidence having yet been heard) it appears that the Board's interest is similar,

perhaps identical, to Staff Sergeant Brookes' interest. But, as Mr. Stewart candidly

acknowledged, in the course of protracted litigation, that could change. I believe that the

only way to ensure that Staff Sergeant Brookes' interest is protected is by granting him full

third party status in these proceedings.

At this stage, of course, I have no way of knowing if all, or any, of the allegations

that the Grievors advance against Staff Sergeant Brookes are true. Such findings await

another day. But I have heard enough from counsel to persuade me that Staff Sergeant

Brookes has a vital, direct and compelling interest in these proceedings, and that he is

entitled to appear and to defend that interest which may, or may not, be identical to, or

similar to, the interest of the Toronto Police Services Board.

This is likely to be a long, costly and divisive proceeding. Recognizing Staff

Sergeant Brookes as an interested party, and according him third party status, will add time

and complexity; nevertheless, fairness to Staff Sergeant Brookes, in the circumstances of

this case, requires no less.

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Datedat the Cityof SI. ThomasthisJ~~ay of ../°1,2004.

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