HomeMy WebLinkAboutUnion 12-11-13>1 "',\
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BETWEEN:
Before: S
Appear
For the Un
For the Em
THI
2Otl:
Jon'o5Jq-tdl'
IN
THE MATTER OF AN ARBITRATION
TORONTO COMMUNITY HOUSING CORPOMTION
AND
O.P.S.E.U.
(UNION GRIEVANCE RE: SECURITY CHECI{S)
n Tacon, Sole
Arbitrator
Lesley Gilchrist, Grievance Officer
Kamrool Mohamed, President, Local 529
William LeMay, Counsel
Pat Milana, Senior Labour Relations Consultant
Terry Skelton, Director, Community Safety Unit
Pamela Boyce- Richard, Manager, Operational Safety
Support Services
MATTER WAS HEARD IN TORONTO ON THE FOLLOWING OdrnS:
CTOBER LB;2012: APRIT 20; MAY L4,3I;AUGUST 9; SEPTEMBER 7.
?
FA.CTUI\L FINDINGS
It jis helpful to first provide the context in which the grievance
arises. The security
clearan,:e in question is referred to as "CPIC", standing for Canadian Police
IniiormaLtion Centre. Pamela Boyce-Richard is the manager of operations, safety and
support services. In that role, her responsibilities include: CPIC coordinator, Special
ConstaLrle Liaison, program management, court and evidence management, payroll,
health and safety, training and scheduling. She provided much of the evidence
relgardirrg the background to
the grievance and the employer's operations. I regard
her testimony as reliable and consistent with the documentary material. Moreover,
she was well placed to provide details regarding the CPIC system and implications
for the employer of CPIC clearance
for its employees in the bargaining unit.
CPIC is ;r
database operated by the Royal Canadian Mounted Police IRCMPJ that also
interfaces with American law enforcement agencies and, as of June 2009,
with
Interpo[. The data contained
within CPIC is wide-ranging including criminal
rerlords, criminal charges,
missing persons,
outstanding warrants, probation orders,
stolen vehicles, orders prohibiting firearm possession,
and curfew orders. There are
approximately 30,000 entries per day
by Canadian law enforcement agencies. The
inlbrmation is constantly being updated to reflect criminal charges, releases,
warrants, etc.
The Toronto Community Housing Corporation ["TCHC") emerged in20O2
from its
predecessor organizations that had existed prior to amalgamation but has carried
out esserntially the same functions. The employer operates community housing in
various sites across the city. Its residents comprise some of the city's most
vulnerable people:
new immigrants, seniors, those with mental health issues, those
fleeing rriolent relationships and the poor.
Part of the employer's role is to ensure the protection and safety of those residents.
The bargaining unit in question is a security unit referred to as the Community
Safery Llnit ("CSU'J; OPSEU
is the bargaining agent. The CSU operates on a twenty-
four hour, seve
represented by
clerks, tlata en
personttel supe
two pri'i/ate se
operated by TC
Currenl.ly, in th
["CP0's); Parki
the CPCI's are
approximately
of Special Co
fewer than tha
perform the sa
regard 1;o
their
Enforcement
These figures
differenLt from
changed some
convenlence,
to as "security
The Spercial Co
Initially set up
Board (the "Bo
TCHC, vvas en
appendices de
procedures an
that, if the
correctr:d to th
appoint.ment o
days per week, basis. There is also another bargaining
unit
CUPE, Local 79, comprised of administrative assistants, support
clerks and a court administrator. There are management
ising operations in both units. As well, there are contracts with
rity companies
to provide on-site security at the residences
C.
security bargaining unit, there are: Community Patrol Officers
g
Enforcement Officers ("PEO's"), and Dispatchers. A subgroup of
gnated as Special Constables. At the relevant time, of the
L CPO's, only about L8 are not also Special Constables. The
number
bles in the bargaining
unit is capped at7 6, although there may be
at any one
time. The CPO's and Special Constables essentially
e security duties, although there are significant differences with
pe of authority, as
will later become evident. There are B Parking
icers and, of the Dispatchers,9 are full-time and2 are part-time.
flect the point in time the grievance was filed but are
not materially
e current composition. Likewise, the managerial structure has
hat but that, too, is not of relevance to the matter before me. For
CPO's, Special Constables and PEO's are often collectively referred
fficers".
stable program is operated by the Toronto Police Service ("TPS).
2000, a further agreement between the Toronto Police Services
rd"J and the employer, reflecting the change in the employer to the
into in 2002. That agreement is quite lengthy, with various
ing with equipment, functions and objectives, incident reporting
procedures
for handling complaints. Noteworthy is a stipulation
ment is breached by the TCHC and such breach is not promptly
satisfaction of the Board, the Board may suspend or terminate the
Special Constables, individually or collectively, or terminate the
Agreement enti
pass
all screeni
background in
discretion.
Kamrool Moha
many |,3ars. H
and the additi
integrated into
Where approp
lnitially, the e
exampl:, if an i
house dispatch
dispatcher in o
person In q
house dispatc
delays on the o
time the CPO
release the
indi
CPIC that war
deliver the ind
Boyce-Richard
complyling with
to follorrv the g
control over th
conducted in
correctr:d.
This initial rou
cumbersome.
4
ly. In Item 1"6, applicants for Special Constable, inter alia,
must
g
tests and shall not be
appointed if the results of the tests or the
tigations, are unsatisfactory to the Board,
in its sole and unfettered
ed is a Special
Constable and, also, has been local president for
testified
with respectto the duties and responsibilities of the CPO's
al authority of Special
Constables. His evidence has largely been
e narrative as consistent with that of the employer's witnesses.
te,
his testimony has
been specifically highlighted.
oyer only had access
to the CPIC system through the TPS. For
dividual was detained by a CPO or Special Constable, first the in-
had to be contacted
who then relayed the request to a police
er to ascertain whether there was information on CPIC about the
on. Any information from CPIC was then relayed back to the in-
r and, ultimately, to the CPO or Special Constable. There were often
r of thirty minutes in retrieving the information, during which
Special Constable could be at
risk. As well, only the police could
dual if it was determined there was no relevant information from
nted an arrest. In that case, the CPO or Special Constable had to
idual to the nearest police
station.
stified that continued CPIC access is conditional upon the employer
various rules
for safeguarding CPIC information and its use. Failure
delines could
result in the loss of CPIC access; the employer has no
continuation of that access. Compliance is monitored. Audits were
02 and 2008: fairly minor discrepancies were reported and
for accessing CPIC information was time-consuming and
nd, the volume of CPIC
requests increased to approach 3,000 per
year. Thus, in
that ther emplo
computer term
The CPIiC Man
extensive but,
agency, TCHC, i
There naust be
any informatio
request is legi
of the CPIC svs
The CPIC comp
the dispratche
on the CPIC ter
and the CPIC
CPO's, PEO's an
The PEO's can
can also req
informaLtion co
input thre data
the dispratche
informaLtion.
communicated
are traiLned in
To ensure com
training;guides
CPIC Inliorma
documernt,
dispatchers, th
directly requ
5
005, there was an agreement
with Toronto Police Services
Board
r be granted direct access to CPIC, through its own in-house CPIC
nal.
I governs the usage and protocols of the CPIC system. The Manual is
r purposes of this grievance, only some references are needed. The
responsible
for ensuring the security of the CPIC information.
written policy on the dissemination of CPIC information. Before
is released,
the agency head or delegate must be satisfied that the
te and the released
information will not jeopardize the integrity
or its users.
ter terminal is physically housed in a secure room, separate from
desks. The dispatchers are trained in the various information fields
inal. Two managerial staff [the CPIC administrator, Karen Harvey,
inator, Boyce-Richard) are also CPIC trained. Currently, the
Special
Constables
contact dispatchers seeking CPIC
information.
nly request information on vehicles. CPO's and Special Constables
a CPIC checkon persons and property. The dispatchers record the
eyed
by the CPO, Special Constable or PEO on a notepad and then
the various fields of
the CPIC terminal. Direct access to CPIC
by
results in virtually instantaneous responses to the requests for
e
request and the dispatcher's response are generally
sing codes. The dispatchers, CPO's, PEO's and Special Constables
ese codes so that the communication is very swift.
liance, the employer has created policies and procedures,
including
dispatch control sheets,
field control reports, and such like. The
Management Directive [the "Directive"J is a comprehensive
ring a number of topics. Included therein is the stipulation that only
CPIC Coordinator and CPIC Administrator will be permitted to
information contained
and/or available through the CPIC. CPO's,
Special Constables and PEO's
can only
indirectly request CPIC inl'ormation
by
con'[acting a dispatcher, Radio transmission is the usual
form of contact
for the
requesl. and response.
Allthe security personnel have
radios with a microphone on
the unil.orm's lapel for hands-free use. The requests could also be made via cell
phones
that the security personnel carry, The responses from the dispatchers,
reflecting the specific outcome of the CPIC search, are broadcast in code over radio
and canr be heard by everyone on shift. If detailed CPIC information is to be
communicated, the dispatcher must use the central dispatch telephone
line and the
securigr officer receiving the
information must likewise use a landline [not a radio
or cell-phone).
The user of codes to communicate the dispatcher's response has aLlready
been
noted.
The cocles also reduce the
likelihood that an
individual who has been
apprehended
will un<lerstand what is said. Nonetheless, the Directive "strongly recommends",
for
reasonsi of officer safety, that requests
for CPIC information not be completed when
the subiect of the inquiry, or another unauthorized person, is able to overhear the
request andf or the dispatcher's
reply. Where that is not possible, those reasons
must ber fully outlined in a general occurrence report or memorandum to the
supervisor. It is also noteworthy that
written references on a general occurrence
report, rsupplementary occurrence, daily log or any other report or memorandum
resu.lting from a CPC information request
must be introduced without any reference
to C,PIC, by using the introductory phrase "As a result of
investigative inquiries...".
The Sep,tember 2010 version of the Directive and its predecessor of
April 2008 are
identicaLl in these respects.
The acquisition of a CPIC terminal on site at TCHC also led to significant changes
in
secu.ri$'. CPO's, Special Constables, PEO's, dispatchers and the afbre-mentioned
managerial personnel all
require CPIC clearance and must sign confidentiality
agreements. The Special Constables are subject to a stricter background check, as
are rlispratchers. The Special Constable program, as mentioned, is operated by the
Toronto Police Service. The
broad authority of Special Constables will be elaborated
upon later. The private security companies referred to earlier do
not have CPIC
acc€rss ernd their employees are not CPIC
cleared.
In2007, there was a formal Memorandum of Understanding between the RCMP
and
the r:mtrlloyer regarding CPIC
access.
The document need not be set
out verbatim,
What is of
import is that the employer
therein accepted a number of
obligations
relaled to the use of CPIC
information, access to the CPIC system and measures
to
ensure the security of the CPIC information. Boyce-Richard testified that
it is the
employer's obligation to ensure
the
integrity of CPIC, that the information must be
kept confidential and not disseminated
to non-authorized persons. She stated that
it
could br:
catastrophic if information was released, for example, to persons
with
kno,wn criminalties,
There are three "levels" of organizations
with differing access to CPIC. A level 1
agerrcy [s essentially a law enforcement organizatioU a level 1, agency can
add, edit
and delete data on CPIC. Level2 agencies include organizations with security
depiirtments, such as, the TCHC, the Toronto Transit Commission, and universities.
Levell 2 agencies can only view the CPIC data. If there is a need to update CPIC, that
must be done by a level l agency. A level 3 agency, in effect, is the Ministry of
Community Safety and Correctional Services. That body can add or edit data, such
as, a person's release or parole,
but cannot delete data.
SecuLrig' checks for the CPO's,
Special Constables, PEO's and relevant management
staff'arer conducted by the TPS. Since
the dispatchers have direct access
to CPIC, the
initi;al background check is conducted
by the TPS but then, during the eight to ten
weeks orf training, the Ontario Provincial Police ["OPP'] carry out a
further check.
Boyce-Fi.ichard outlined the
information that must be provided by the employee,
includinLg a waiver; that detail need not be repeated herein. The forms are very
thorough. Indeed, one part must be completed at the place of employment under
superrvirsion and cannot be taken out of the office. Special Constables have an
additional form to complete, as their background check is "enhanced" in view of
their additional authority. It is possible for an individual to "fail" the Special
B
Constable security check
but "pass" the CPIC clearance
for CPO's. The employer has
no inpr-Lt into the security check
process and is
simply advised as to
whether the
individual has "passed" or "failed" CPIC
clearance.
The unjLon's
evidence was
that the
security check for CPO's was as rigorous as
for
SpecialConstables and
thatthe forms to be completed were the same. In this
instance, I have preferred the
testimony of the employer's witne.sses
who were
more farmiliar
with the process. Further, the distinction between the
two
classifications is supported by the fact that "refresher" checks were performed for
Sper:ial Constables and dispatchers at defined intervals. Prior to
the events
culnainating in this grievance, the CPO's
were only subject to CPIC clearance at
time
of hire.
The.n, irr February 2009, TPS,
through Staff Sergeant Barrat! raised a concern that,
apart from Special Constables and dispatchers who were checked every five years,
securiqr officers initially CPIC
cleared had not had "refresher" clearances
for quite
some time. The TPS wanted TCHC to adopt the "refresher" clearance schedule for all
secuLriq' officers in the Community Safety
Unit. This concern of the TPS was
expressed as a "very strong
recommendation". Boyce-Richard testified that, in
view
of thLe irrformation shared
between TCHC and TPS, it was important to the employer
to update the CPIC clearance checks as TPS "recommended". Moreover, she stated
that the Special Constable program could not operate without CPIC
access.
For
TCHC, tlhe Special Constable program enhances
the sense of security and safety
for
the resi,Cents in the community, The
union did not dispute this, although Mohamed
characterized the Special Constable program as an important "added"
tool. He also
confirmed that Special Constables possessed
greater
authority than CPO's
and,
in
turn, CPO's who were not Special
Constables had greater powers than the
employr:es of the private security companies
working on-site at the residences.
Before proceeding
further with the narrative, it is useful to digress and
flesh out the
greater authority of Special Constables, as compared with CPO's, under various
9
statutes. This section is
not intended to be comprehensive but, rather, to give a
sense of the Special Constable's enhanced role.
The Criminal Code
distinguishes between "anyone" and a "peace officer". For our
purlposr3s, "anyone" refers to a CPO.
Succinctly put, a CPO can arrest
without
warrant a person
who is
in the act of committing an indictable offence
or a person
who, on reasonable grounds, is believed to have committed a criminal offence and
who is escaping from, and is being
freshly pursued by, someone who has lawful
authority to arrest that person. Much
broader is the authority of a peace
officer, a
category that includes Special
Constables. Essentially, the peace
officer may
arrest
wittrout a warrant: a person who has
committed an indictable offence or who, on
reasronzrble grounds, is believed to have committed, or is about to commit, an
indictable offence; or, a person who is in the act of committing a criminal offence; or,
a person about whom there are reasonable grounds to believe an arrest
or
committal warrant is in force
within the territorial jurisdiction irr which the person
is founcl. Again, there is a level of detail in the statute that, in the instant matter,
need not be recounted.
Thus, a Special Constable is empowered to execute a Canada-wide arrestwarrant to
process and to immediately transportthe individual to a police
station. The Special
Con:statrle is authorized to apprehend
individuals under the Mental Health Act
if
there is a danger to that person or others and to transport the individual to a
hospita.t. There is additional authority under the Trespass to Property Act and
Provincial Offences Act. A Special Constable has the statutory power to seize liquor
where ar person was consuming alcohol
in a common area or was intoxicated. And,
to give one other example, a Special
Constable has the power to seize
controlled
subs;tances from individuals and to transport those persons, and the substances,
to
the police.
If a llpecial Constable arrests an individual, it is up to the Special Constable to
review
the r:ircumstances, in the context of a CPIC chech to determine if the person may be
releiaserl funconditionally or
with a commitment to appear later in courtJ or taken to
10
the nearest police
station. The
acronym "PRICE"
reflects the sequence of
assessments; relevant to that
determination: "P"
- public safety interest; "R"
-
repetitive misconduct;"1" - whether the person's
identity is cleary "C" - courl i.e.,
if
there is a history of previous failures to appear in court; arld, "E"
- evidence, i.e.,
if
the release risked the destruction of
evidence. Thus, CPIC mustbe accessed
to
conduct the "PRICE"
evalutation. Boyce-Richard added that there is a Charter
obligation not to arbitrarily detain an individual: if the person was
delivered to the
TPS when he/she should have been released, according
to PRICE, without
conditions, that would constitute a
Charter violation. It is the responsibility of
TCHC, as a k:vel 2 agency,
to ensure
the requisite tools,
including CPIC,
are available
to maintain the Special
Constable program.
The CPO cannot release an
individual who has been arrested. Rather, the CPO
may
request a CPIC check but then,
the person must be conveyed to a police station or
handed over to a Special Constable who would make the appropriate determination,
in accordance with PRICE.
Likewise, the private security officers cannot release an
arrested suspect. Only Special Constables may transport an arrested suspect
to a
police station.
Some aspects of Mohamed's testimony are usefully summarized at this juncture. He
described the routine of a Special
Constable. They work twelve-hour shifts that are
rotated at specified intervals. On patrol, Special Constables respond to calls
for
assistance thLat could range from incidents of
mischief to violencer. If the calls are
more seriou:;, a co-worker will attend the scene as well. The areas patrolled include
undergroun<1, surface, hallways and stairwells throughout the geographic region to
which they are assigned. Mohamed stated that there are around five assaults on
Special Constables each year,
the
majority of
which result in injury to the officer. He
confirmed thLat a CPIC check
should be conducted outside of the hearing of an
individual under arrest wherever possible,
while still maintaining control of
the
person. On occasion, where
control could not otherwise be maintained, the suspect
might overhear the CPIC information communicated to the Special Constable
in
LT
code. In some circumstances, as noted, the dispatcher must communicate via a land
line to ia
Special Constable who also
receives
that information on a land line rather
than by
radio or cell phone. Mohamed also confirmed that some CP0's [including
Special ConstablesJ are
regularly paired up in the
field, depending on the geographic
area,
although the
rnajority of
security officers
work alone. There is also a period
once a week when the shifts overlap
for four to six hours. The CPO's
and Special
Constables
wear the same
uniform, apart
from a distinguishing pratch on the
shoulder.
As mentioned, the employees of the
two private security companies providing basic
security at the residences are
not CPIC
cleared. Those persons cannot effect arrests
and
must contact Special Constables
to deal with serious issues. Mohamed
testified
that those personnel use a separate
radio channel so that CPIC information being
transmitted cannot be received on
their radios, He did add that, if the security
officers were in physical
proximity to the Special Constable who was conducting a
CPIC chech it was possible they might overhear the coded communication,
It was the "refresher" checks
implemented by TCHC in 2009 that eventually
culminerted in the
instant grievance. After discussions
with Staff
Sergeant
Barrett,
Terry Skelton sent an email to all CSU
employees, including those employees who
now would be subject to the "refresher" checks, explaining that CIPIC "refresher"
clearance was now required for all CSU
staff with direct or indirect access
to CPIC.
Skelton was the Director of
the CSU
at the relevant time and had held that position
for roughly a decade. The results of the
several clearance checks were not available
at the same time. There is no reason,
in my view, to identif,i the individuals who
failed ttre CPIC checks
beyond noting
that four were permanent and three were
temporiery employees. Neither the
individual nor the employer was given an
explanation for the failure to clear the CPIC check. The
individual employee has
no
real power to ascertain the basis for the rejection and there is a very limited power
to
appeal. In only one instance,
with the assistance of a lawyer and
after more than
a year of pursuing the matter, an individualwas able to learn of the reasons
for the
12
failure to clear
the CPIC
security check. It is of some
import that the reasons were
not
negligible. On
the other hand,
it is possible to
fail the CPIC
security check
without having
directly been
involved in culpable misconduct. T'he
employer simply
has no means of
extracting an
explanation from TPS as to
why an
individual failed
CPIC,
in part because the grounds for the failure may compromise an ongoing
investigation.
The temporary employees were
terminated with an exit package and given access
to
the Employee
Assistant Program to provide support for the
transition. They
were
also
advised
that,
if the issue
with the TPS
was resolved and CPIC
clearance
reinstated, they were welcome
to reapply for their positions. The
employer was
able to transfer the
four permanent employees to positions in other assignments in
another bargaining
unit. Thus,
the matter before me is a policy grievance and does
not currently impact on any specific persons. The employer's position is that there
is no obligation to place an
employee in the CSU
who has failed a
refresher CplC
clearance
in a position in another bargaining unit, The
solution
with respect to the
four permanent employees was,
in effect, felicitous on this one
occasion but was
not
compulsory. Further, the employer's view is that
it is
not appropriate to leave
the
individual in the CSU, The job postings for all security officers,
including pEO's, now
reflect the
requirement that full security and police clearance be
maintained.
Following the "failed" security checks,
the employer and the union discussed the
consequences of the
implementation of "refresher" checks
for cpo's, The union
submitted some
options,
including a pilot
projec! for preserving the employment
status of those
individuals withou! in the union's view, compromising the integrity
of the CPIC information. The
specific suggestions are dealt
with in more detail infra.
Boyce-Richard was
directed to investigate the
interpretation of the guidelines and
the
distinction between "direct" and "indirect" CPIC access. There was no dispute
between the parties, that the dispatchers have
direct access.
There
were a number
of emails amongst management
with respect to the
interpretation of the guidelines
regarding CPIC access
and the consequences for employees who fail the
security
13
check. It is
not necessary to recount those communications in any
detail. A
few
highli ghts warrant reference.
Boyce-Richard contacted the Ministry of
Community Safety and Correctional
Seryices,
the RCMP and other agencies dealing
with similar issues.
All indicated
that,
to ensure the safety of
the officers, radio communication of CPIC
should not be
eliminated as a primary or secondary method of transmitting CPIC
information. The
next excerpt
from an email
to Boyce-Richard from the RCMP
merits repeating.
"Therefore with officer safety in mind, information should be disseminated via radio
transmission to those officers authorized to hear
it, even
if by doing so enables other
on
duty officers to hear it.
"Keep in
mind though that Chapter 1".2.7.L.L of the CPIC Reference Manual also
states, 'Each agency
having access
to
cplc records is responsible
for the
confidentiality and dissemination of
information stored on the CPIC
system.
'The dissemination of CPIC
information is at the discretion of the CPIC
agency head
or delegate
who is releasing the
information and must be in accordance
with
existing federal and provincial policy and
legislation concerning
privacy and
information access'.
"Ultimately the agency
head must be ready to accept
responsibility for employees,
who have
not passed background screening to be exposed
to CPIC
information in
the execution of their duties. While CPIC policy may be interpreted to
allow this, it's
the agency heads [sic] call."
Skelton also wrote to Chief
Superintendent Finck of CPIC
seeking
clarification of the
distinction between direct and indirect access
in the context of CPO's
who have
failed security clearance. His
initial response is quoted, in part.
'CPIC information may be further disseminated
within an agency as long as it is
consistent
with carrying out the duties and responsibilities of that agency. This
could be
considered 'indirect access'.
'A citation
within the Code
of Ethics is perhaps of most
interest to you,
with respect
to your situation, and pertains to disclosure of GPIC information. ..,
t4
Disclosure
It is essential
thqt any disclosure of personal information should be
authorized
at the
appropriate level and be
in accordqnce
with instructions specifically
drafted for that purpose. These
instructions MAY BE M\RE: RESTRICTIVE than
the
authorized disclosure regulations shown
in the CPIC Re.ference lr4anual.
Disclosure of computerized information may take many forms, including
viewing records on
computer screens,
computer printout etpewritten material
which includes
information taken from computerized records, by
word
of
mouth or by radio transmissions.
It is essential that all agencies authorized to access CPIC data banks provide
guidelines as to the release of
information containing personal information.
These guidelines must
state to which organizations, agencies, persoks
or
authorities information may be disclosed, by whom and
in what circumstances.
"Each CPIC agency must formulate and provide guidelines to their employees which
identify with whom CPIC
information may be shared, how it may be
shared as well
as
under
what circumstance. These guidelines must meet CPIC
srtandards at a
minimum but could be
more
restrictive than those stated in the CPIC
Reference
Manual.
"Toronto Community Housing Corporation ITCHC] has the authority to and
should
establish guidelines under which
their employees operate
with rrlspect
to the
handing of CPIC
information, either directly or indirectly. This may
include,
for
example, a requirement for a clean
criminal record for all employees or for
maintaining Special Constable status. The head of each CPIC approved agency is
ultimately fully responsible for the adherence to all policies and procedures
regarding the protection and use of CPIC
systems and data, and therefore sets
the
rules within each agency
with respect
to cPIC
information access."
That letter was followed by a further request by Skelton
that included the
following
paragraphs.
"Does
your indication of 'staff having direct access to CPIC
information' also
apply to
our officers [not CPIC clearedJ who overhear all CPIC transmissions on the radio
and who
work with officers who are CPIC cleared and are able to access CPIC
information through their query.
"Our position is that all of
our Officers and Dispatchers [which includes Special
constables, community Patrol 0fficers, Parking Enforcement 0fficers, and
DispatchersJ
who have access
to CPIC
information through working
with other
1-5
officers
and/or radio transmissions are
required to be CPIC cleared
through our
local Category L agency
which is Toronto police Service.
"ln the particular circumstances that
initially caused us to seek your direction, these
staff members were not cleared by Toronto Police Service for CPIC
and as such we
took immediate action to remove them from accessing CPIC
info
rmation
within our
unit,
'We just want to ensure that the Union who represent these officers do not get
confused on
the definitions of
direct and indirect access,
and feel
that these officers
[that they represent and have
filed a
labour grievanceJ have only
indirect access
and
do not fall under the requirement of needing a CPIC
background check
through
Toronto Police Service.
"lt is our interpretation based on your correspondence that in the circumstances of
the
0fficer's employment and position that they have the
opportunity to access CplC
information directly and do
not fall
within the
definition described. In
efforts to
present our position at the Labour Grievance we
require full clarity on this issue as
this process
will be quite intensive, to
support the actions we took to protect the
integrity of
our CPIC
system."
The response of
ChiefSuperintendent Finck is
next recounted,
apart
from an
introductory s entence.
"ln you most recent letter you indicate that your 'agency has adopted
the position
that
all of your Officers and Dispatchers (which includes Special Constables,
Community Patrol Officers, Parking Enforcement Officers, and Dispatchers) who
have access
to CPIC
information through working
with other officers andf
or radio
transmissions are
required to be CPIC
cleared', This guideline is more
restrictive
than CPIC policy; however as
was pointed out in previous correspondence, the CplC
Code
of Ethics states
that it is your agencies prerogative to take
this position and
establish
this guideline.
"The cPIC policies were put in place
to
restrict'direct' access to authorized
personnel to minimize the risk of misuse and
dissemination of police information.
With respect
to
indirect access
to CPIC
information, the
availabiliry of
monitoring
devices which intercept police and emergency communications is; just one example
of
why the CPI
Centre cannot impose policies on police agencies
which require them
to ensure that radio transmissions are
not overheard by
unauthorized persons. I
believe it is
more
important for officers and dispatchers who accerss CPIC
information to be
mindful that the communications disseminated over
radio
transmissions can
be overheard or intercepted.
1,6
'As long as your internal agency
direction is not in contradiction with CPIC
Policies
and Procedures, the Toronto Community Housing Corporation is entitled to impose
additional restrictions or guidelines as you deem necessary.,,
Boyce-Richard testified that she
concluded that, regardless of the distinction
between "direct" and "indirect" access, TCHC
has the
ultimate obligation, as a level 2
agency,
to ensure
that CPIC
information is disseminated in accordance
with the
standards
for confidentiality and
security. TCHC
must accept the responsibility for
employees who have
not passed CPIC
clearance
but who may be exposed
to CplC
data' She also emphasized that the guidelines permitted an employer to
implement
policies that imposed higher standards than what was recommended
to ensure the
integrity of the CPIC
information. Boyce-Richard testified that the TPS
would
consider the guidelines in the context of the Special
Constable program. In her view,
if the TPS concluded that TCHC
was not protecting the
integrity of the CPIC
data, the
Special
Constable program would be put at risk.
Boyce-Richard also contacted other level 2 agencies,
including the TTC
and the
University of
Toronto Security department to learn of their approach to the issue.
The
response
from U of T was that the continued requirement for security clearance
was specified
in the collective agreement covering the Security
Unit. The TTC
clarified, in a discussion
directly with Skelton,
that the individuals
would likely be
reassigned
to other positions within the
organization. As well, the response of TpS
was that a TPS employee who lost CPIC
clearance
would be suspended, pending the
recommendation by the Chief of Police
for the
individual's termination of
employment.
The union proposed several
options for continuing to retain CPO's
who lose CPIC
clearance
without compromising the
integrity of CPIC.
An email
fiom Mohamed
succinctly sets these
out and is next summarized, rather than quoted
verbatim.
A: Issue a separate radio channel with'locked'usage to those CPO's
who are not
cleared to conduct CPIC.
L7
B: Issue a dedicated radio channel, along
with earpiece to those
officers who have
CPIC clearance.
c: The cell phone can
become
primary usage
with the radio as
backup [whichcovers
the requirement for always having a channel openJ.
D: Remember that all of
the officers with two exceptions, had passed
their initial
CPIC
checks but lost that clearance due
to the
recent refresherCPIC check
required
by
Toronto Police Service.
E: There is an average of 1
cplc check
per day of
which about Bit% are
completed
by phone.
F: With respect
to situations where staff overlaps [on most Thursdays for 4-6
hours),
if an officer who is cleared for CPIC
is paired up
with an
officer who is
not
cleared and a CPIC
check has
to be
conducted, the
offiier who is CplC
cleared shall
ask the
other officer to remove himself/herself from within hearing distance,
In the e-mail, Mohamed suggested that both management and the union conduct an
internal CPIC pilot projec! on a monthly basis,
implementing some or all of the
union's proposals, to make sure
that CPIC
integrity was
not being compromised.
Officers
who were not CPIC
cleared would be told not to be withi.n hearing distance
when a CPIC check was
being conducted. The
e-mail also expressed the union,s
wish
that the employees removed from the CSU
for having failed CPIC
clearance be
brought back and that management and the
union develop a policy or protocol on a
"go forward basis"
to respond if the situation reoccurred. Mohamed reviewed the
above-noted options in his
testimony. He stated
that he
regarded the risks
of
retaining CPO's
who failed CPIC
clearance as
manageable in the cpntext of the
union's suggestions and a pilot project.
Boyce-Richard prepared a report for Skelton in which she assessed each
of
the
various options proposed by the union and
outlined the
information received from
the
various sources, as noted above. Based on her experience as CPIC
Coordinator
and Special
Constable Program Liaison, and on
her consultations
with other
agencies,
she concluded that all of the options suggested by the union were
not
operationally viable
without compromising the functions of the CSU
and
the
integrity of CPIC
information.
1B
It is appropriate to review Boyce-Richard's assessment of the union's specific
proposals in somewhat more detail before proceeding
further. Her
report, dated
May 20L0, was
filed in evidence. Rather
than quote the text
verbatim, the content of
the analysis is generally summarized, although some phrases or sentences are set
out as written where that is
more concise. Her report speaks
of the CSU
specifically
but, for our purposes, this is equivalent to TCHC.
1. Change CPIC
Transmissions to only Cell Phone
The
method of CPIC transmissions must always have the
radio as a viable option
fprimary or secondaryJ
to
transmit information to the officer from CPIC.
In some
instances, the officer may
not have
the option to dial or to receive
information on
the cell phone,
particularly where an
individual is under arrest and the
situation is
volatile. Radio transmission is more immediate. Moving to cell phone transmission
only or as the primary option could impact officer safety in the field.
2. All
non-CPIC cleared personnel work on a
different radio band/channel
This would mimic the security officers employed by third party contractors in the
residences. However, the non-CPIC cleared CSU officers
workvery closely
with
other CPIC cleared
officers. There could be no guarantee
that the
integrity of the
CPIC information was
maintained. Disclosure could take various forms,
including
radio transmissions from CPIC cleared officers,
word of mouth, and CPIC
documents.
As officers may be
scheduled to work together regularly or for a portion of the shift,
confidentiality would not be possible if each
officer worked on a different radio
band. Administratively,
it would be extremely difficult to ensure that CPIC
cleared
and not cleared
officers were not scheduled together or
utilized as back
up. This
would set up a differential work environment for officers
working in the same
position. As well, if some
officers are exclusively working on a different radio
band/channel and needed back up
or assistance, such
requests would not be
heard
by other officers working on a different radio band/channel.
3. Different Radio
Band/Channel
for CPIC queries
This
option would raise the same concerns regarding confidentiality already noted
in point 2.
L9
4. Moving staff that are
not CPIC cleared to positions within the CSU
with no CplC
requirement.
All the
field and dispatch positions require access
to CPIC. The
administrative staff
do
not need CPIC
access
but there is
currently no availability ancl
the
skill set
would
be quite different.
[Not mentioned expressly in this document but evident in the organizational chart,
and
implicit in her assessment, is that the number of
administrative staff comprises
only three or
four persons. At the
time of the grievance, there was one
strategic
safety
analyst and
strategic safety planner. The
remaining positions are
supervisory
or managerial. The
current organizational chart is not
different in any
wayrelevani
to this issue. ]
5. TPS procedures relating to employees who did not clear
for
cplc
The union received written confirmation that, at TPS,
employees who did
not clear
GPIC
were suspended
pending recommendation by the chief of police for
termination. The CSU's position was consistent
with TPS
and
other agencies
with
CPIC
access,
including the
Ministry of
Community Safety and Con:ectional Services,
the OPP,
RCMP,
and
the UniversiW of
Toronto.
Excerpts
from the conclusions of Boyce-Richard's report are next set
out
verbatim.
"The decision that was
taken by the CSU
in relation to these
employees was
extremely
difficult. It was made
in consideration of
all of the emprloyees
within the
CSU as the CPIC
Program is vital to our work as well a requiremertt to
support the
Special
Constable
Program. If we are
found not to be in compliance to the safe
guarding of CPIC,
our access
would be
immediately terminated. Once
that occurred,
the Special
Constable Program
would be in jeopardy.
"The CPIC
Program is closely monitored and
audited regularly by the
Ministry of
Community Safety and
Correctional Services and if we continued to
employ person
not recommended by TPS
for CPIC in areas
that have access
to CPIC,
our CplC access
would be compromised.
"CPIC is governed by a CPIC Reference Manual that establishes
policies related to
agencies such as
ours having access
to CPIC.
It states
that our CPIC
backgrounds
must be
done by
our Level L
Policy Agency
within our geographical location, in our
case this is TPS. We have
to obey
the decision made by this agency
in respect to our
CPIC
clearance
requirements. If TPS
indicate
that a person is not trecommended for
CPIC, our
obligation is to ensure
that this employee is removed
from accessing CplC.
We can
not develop back doors
for these persons
to remain
within a position
requiring CPIC. We have
to ensure that at all times the
integrity of CPIC
within
Toronto Community Housing Corporation
There is a liability to TCHC
to keep staff
in
CPIC.
"Recommendations
2A
- CSU is
maintained to
the highest degree.
CSU
roles
that are not recommended for
L. Support the Decision made by
the CSU
in respect to
the employees who did
not clear background for Cplb.
2. Place
any affected
permanent staff
in alternate positions fthey qualiff forJ
within TCHC,"
In her testimony, Boyce-Richard elaborated upon her report. Her comments not
already covered in the above document are
succinctly noted. The use of a
cell phone
is technically permissible but communication by
radio is a faster and more
convenient means of
requesting and
receiving CPIC
information. Officer safety may
be
impacted and,
in any event, a back up means of communication is required. Field
officers do not have ready access
to a
landline. Compliance
with a
request by a CplC
cleared
officer that a non-cleared officer move out of earshot
when a CPIC
check was
sought could not be
monitored. Therefore, TCHC
could not guarantee the
integrity
of the CPIC
information, It would also
be
difficult for the dispatchers to
monitor two
radio bands
simultaneously. Critically, non-CPIC
cleared
officers could not
find out
anything about a suspect and
that could jeopardize their safety.
The cross-examination of Boyce-Richard was extensive and is
next summarized.
She
agreed that the guidelines distinguished between direct and
indirect access
buf
in her view, that
still risked dissemination of CPIC information to non-CPIC cleared
employees, given the
way in
which the CSU
operated. The
overarching obligation on
the employer was
to ensure the
integrity of CPIC. She
stated
that, as TCHC
was
permitted to implement policies to increase
the security of the data,
such a response
was preferable to
risking compromising CPIC, given the potential consequences
for
TCHC. Boyce-Richard also stressed the
vulnerable nature of the residents and
that
the security officers worked in high
risk areas. She
acknowledged that there was no
explicit statement from TPS
or another body that TCHC
would lose CPIC access
if
non-CPIC
cleared employees continued to work as security officers. Nor was
there
21.
an
explicit statement from TPS
that the Special Constable
program would be closed
if non-CPIC cleared security officers continued their employment with the CSU.
However, Boyce-Richard reiterated that the employer was
responsible for the
security of CPIC
information.
Boyce-Richard confirmed that the usage of CPIC
had declined overr
the years:
L,1IB
in2007; I,L32 in 2008; 664
in2009;495 inZ0L0; but rose
to 51ti in 201j.. That
approximated one or
two CPIC
checks
per day. She
did not know how many of those
checks
resulted in "no
information". Boyce-Richard described the process of
requesting a CPIC
check
to getting a
response from the dispatcher as quite fast. In
an urgent situation, the
security officer was
to call TPS
or 9'J,Lfor
immediate
assistance.
Boyce-Richard agreed
that TCHC
retains some
third party contractors to provide
security in buildings but those persons do
not have
any
cplc access. In an
emergency, those personnel would call91L. If they arrested an individual, the TpS
or Special Constables would be contacted immediately; the police or Special
Constables
would decide on
the
appropriate response once
the CPIC
check had been
conducted.
Boyce-Richard confirmed that the officers in the field are scheduled to
work in pairs,
sometimes on a regular basis and sometimes for part of a shift, depending on
the
geographic area. she conceded that, at
times,
it might be possible for an
apprehended individual to overhear a CPIC check. TCHC policy was
that the security
officer would request a CPIC
check
out of earshot of an individual under arresr.
However, as the officer had
to maintain physical control of the
individual, that might
create a
situation where that person could overhear the communication, in code,
between the
security officer and
dispatcher.
In redirect examination, Boyce-Richard confirmed that, although
there was no
explicit statement
that CPIC access
would be lost if those employees who failed CplC
clearance
were retained, TPS
did express concern
that CPIC
information could not
22
be safeguarded
if disseminated to non-CPIC
cleared personnel. She also
indicated
that she
interpreted the reference, in
the
first reply by Chief
Superintendent Finck to
Skelton,
to prohibiting "further dissemination" of CPIC
information as equivalent to
disclosure and
that TCHC was
very much concerned
with inappropriate disclosure
of CPIC
data.
It is convenient at this juncture to summarize the testimony of
Kathryn Asbury. She
is a security consultant with extensive experience in strategic planning, governance,
evaluation and performance assessment in the public and private sector, including
the
criminal justice system. Ensuring the security of
information is
embedded in all
projects' From
the 1980's onward, Asbury has
been
involved in over
twenty major
projects with TCHC
with respect to
various security and
community safety concerns.
For example, one
report recommended increased enforcement authority for Special
Constables
to deal
with emerging threats to community safety associated
with crack
cocaine and
other drugs. Asbury has
visited the community housing projects
operated by TCHC
or it predecessors in connection
with her research and
reports.
Asbury was asked
by Skelton to
review the union's proposals for retaining security
officers
who failed CPIC
clearance, including implementing a pilot project. Asbury
testified
that it was
immediately evident to her that the issue
must be
viewed, not
just as an
operational matter, but more broadly as a question of strategic
management and
security.
Her formal report to Skelton was also
tendered in evidence. The
document is
thorough. Asbury considered the feasibility of the pilot project, the bigger
strategic
issues, and
information required from TPS as a
basis for developing a mutually
agreeable
solution. As
to the feasibility of the pilot project, she
outlined a
number of
complexities associated
with the proposal, including the design of,
a
methodologlr to
effectively track, measure and
report on
the effectiveness of the proposed
safeguards. Also noted were risks to external
credibility and internal credibility of
retaining non-CPIC cleared
officers. In her view, there
would inevitably be friction
amongst
the cleared and
not-cleared security officers who would have
to be
isolated
23
and differentiated from one another in some manner. Even
that would not avoid
vulnerabilities with respect to
the release of
confidential information. CplC access
was a critical tool in ensuring a safe
community. As
well, the
inability of some
officers to access CPIC
could well raise
liability issues
for TCHC
if community safety
was thereby affected' The
report also flagged a concern for the number of
security
officers
who could be retained after losing CPIC
clearance before a "tipping point,
was reached
that would irreparably undermine the Special Constable
program.
Asbury described the
pilot project as technically feasible
if consirlered solely on an
operational basis,
albeit time-consuming costly and
difficult to construct properly.
0n the
other hand,
the
pilot project was
ultimately of no
utility in
mitigating the
risk
posed by the loss of CPIC
clearance. She
acknowledged that the loss of employment
would have
serious impact on
individuals but
that had to be
balanced against the
TCHC's
fiduciary duty to its residents and staff, and
the need to comply with
applicable legislation and regulations.
While her
report considers various alternative collaborative approaches, in her
testimony, she
returned to the basic question. The failure to pass security clearance
required TCHC
to conduct a strategic risk assessment
if persons who failed CplC
clearance were
retained, As
well, there would inevitably be an
erosion of TCHC,s
trust in those employees to carry out their duties. In her view, the strategic risks
extended
to residents, staff,
visitors, corporate information and
corporate image.
These
risks and the loss
of
trust could not be
adequately addressed since the
reasons
for the
failure of
the securit5r check
would not be disclosed by TpS. It is
this
absence
of
knowledge that undermined the utility of
the pilot project since
the TCHC
was denied the means to
adequately mitigate the risks associated
with the
retention
of security officers who lost CPIC
clearance.
In cross-examination, Asbury agreed that the
relatively low number of CplC checks
conducted,
if measured on a day-to-day basis,
reduced the statistical likelihood of a
potential breach of CPIC
confidentiality. However, she
emphasized that, although
the
risk might well be
small, the consequences of disclosure could
well be
serious,
24
even
catastrophic. She
explained thatthe question of
external credibility, of a
non-
CPIC
cleared officer
testiffing in
court for example, was drawn from her extensive
experience with various police services. With respect to
internal credibility, Asbury
noted the lack of
trust by some of one's
fellow officers toward those who lost CplC
clearance could negatively affect the
performance of
the CSU. She
confirmed that
she
did not speak
directly with security officers or the union in preparing her report.
She
did rely on
her knowledge of the Special Constable program gained from two
prior reports she
carried out for TCHC,
during which she spoke
with many Special
Constables about
their work. When pressed as
to the distinction between direct and
indirect access,
Asbury reiterated her
view that that would not al[er her conclusion.
The
larger issues
were ones of trust and knowledge of the
risk posed and
that
necessitated information as
to
the reason CPIC
clearance was
lost. Further, the
regulations set
the minimum standards whereas TCHC had
to determine its own
risk tolerance level. Asbury strongly disagreed
with the
assertion that other checks,
such as a vulnerable sector screening, could
appropriately address
the concerns.
She
stated
that the
vulnerable sector screening for example, was a lower level check
and,
in any
event TPS
would already have conducted all of the
relevant background
checks. She
added
that,
with respect to security of information, the
trend over
time
has
been to increase
restrictions and safeguards.
It is convenient to
briefly explain
that a vulnerable sector screening is
conducted by
a police force on
application from an
individual intending on
working, or
volunteering with the
vulnerable sector. The screening may provide information
on: a criminal record; outstanding charges; acquittal for reason of mental disorder;
probation,
prohibition or other judicial orders; convictions or pending charges
under the Child and Family Services Act; apprehensions andf or contact under the
Mental Health AcU and,
suspect/culprit information where the release of
such
would not hinder any ongoing investigation. There was also
reference to a local
indices check. That, too, is conducted by police and may include,
for example,
isolated incidents of criminal nature,
violations of provincial statu[es, contacts
with
the police as an accused
or suspect
(or an
association or relationship
with other
25
individuals who have
had such
contactj, history of alcohol
or drug abuse, and
credit
history.
Skelton, now
retired, had been CSU
Director for a number of years at the
time the
issue
arose
culminating in the policy grievance. Amongst those
directly reporting to
her was
Boyce-Richard. Her
testimony regarding the CSU,
the
acquisition of
in-
house
computer access
to CPIC,
the breadth of the database and
the events
triggering the grievance was consistent with that of
Boyce-Richard. Skelton
characterized CPIC access as very important to the safety of the CSU
officers in the
workplace and
the safety of
the community they serve. She
affirrned the importance
of the Special
constable program to TCHC's
operations and stressed
that
continuation of
the program was at the discretion of TPS. Skelton confirmed that
CPIC
clearance was a condition of
hire for years; maintenance of CplC clearance is
now reflected in job postings for all security officers. That is, the "refresher,,
clearance checks are applicable to all
security officers, not just Special Constables
and dispatchers.
Skelton stated that TCHC
regards the loss
of CPIC
clearance as a failure to meet the
requirements of
the position. such persons would have
their employment
terminated but
would be
advised that, if the issue
with TPS
was resolved and CplC
clearance reinstated, they could then apply for the next vacant position. TCHC
was
not prepared to assume the risks and
liabilities associated
with retaining an
employee, in a position of
trust, who could no
longer have access
to
cplc
information. Skelton testified that the union was advised on
Augu
st20, ZO0g,
before
the results of the
refresher checks were known, that TCHC
would have
concerns about the
ability of employees who failed CPIC
clearance to perform their
jobs without CPIC
access. In a
further meeting on Octobe
r 13,2009, the union was
informed
that some employees had
not passed the CPIC "refresher" check,
although
all the
results had
not yet come back. There was discussion about the
view of TC
HC
that such persons, including some
temporary and some permanent employees,
26
needed
to be removed from the CSU
workplace in order to protect the
integrity of
the CPIC
system.
Skelton confirmed that TCHC
then took further steps
to contact organizations with
similar issues regarding CPIC,
including the TPS, OPP,
University of
Toronto, and
the
Toronto Transit commission. Skelton testified that the responses were consistent:
all regarded those who lost CPIC
clearance as
not qualified to hold the positions in
question. The correspondence with the various bodies was
submitted in evidence
but need
not be
detailed herein. What was of
import is that TCHC
communicated
that information to
the union. At a
meeting on fuly 20,
2ar0,the union,s
alternatives, as
already noted, and the union,s proposal for a pilot project to
determine whether those persons who failed CPIC
could be
retained in the CSU
were
discussed.
Boyce-Richard's report has
already been covered. There were also
further
discussions
with senior management regarding the possibility of a pilot project and
leaving non-CPIC cleared officers in the CSU. To ensure a
fair and
impartial
assessment, TCHC engaged Asbury as
consultant. Asbury was provided with
relevant material, including the union's proposal and
additional information
requested by the union, such as,
the data on CplC usage.
Asbury's
report and testimony has
already been
addressed. In Skelton's evidence,
she
stated
that Asbury's report was
reviewed. The risks,
complexities and potential
liabilities specified in the
report were carefully considered, including Asbury's
recommendation that the pilot project not be undertaken, for the reasons given
therein. Also considered was
the possible impact on the
relationship with TpS as
the sponsoring organization for the Special
Constable program. Skelton
testified
that the essence of the problem for TCHC
was
that the reason
for the failure to clear
CPIC was
unknown. The
security officers held positions of
trust and
worked within
communities
with vulnerable
populations. TCHC could not ensure
the protection of
the
integrity of the CPIC
information if security officers who failed CPIC
were
retained in the CSU. The
loss of CPIC access
would negatively affect
the
ability of the
27
CSU
to perform its functions, including the protection of the security officers in the
field. Skelton stated that the creation of a two-tiered employee structure, where
some officers had
full access and
others did not, was divisive.
Ultimately, in consultation with other management personnel, Skelton decided
that
TCHC
should not assume those additional risks and potential liability and
would not
proceed with the pilot project. She
couched her decision as in the best interests of
TCHC
and
the communities it served.
In cross-examination, Skelton agreed that TCHC has
not been
directly told that
access to CPIC would be
lost andf
or the Special
Constable program ended
if persons
failing a CPIC
clearance were retained in the CSU. She also agreed
that TCHC
did
not
conduct its own checks, including a
local indices
chech a vulnerable sector
screening, and
criminal records chech as the TPS
would have
carried out those
investigations as part of the CPIC
clearance. Skelton reiterated her
view that a two-
tiered division of
officers between those who passed and those who failed CplC
clearance would undermine the collegrality and close
working relationship of
the
CSU
officers. Skelton confirmed that data
entry clerks and
support clerks noted in
the CSU
organizational chart do
not require CPIC
clearance. However, they cannot
input CPIC
information and do
not work in proximity to the dispatchers. As
Director, Skelton is
not CPIC
cleared but never deals
with CplC
information. She
indicated that the
new CEO
at TCHC
requested a
radio. He
is
not CplC
cleared
or
trained in the codes; Skelton did not know
if the radio is
still in his possession or is
ever used.
In redirect examination, Skelton added that
for TCHC to conduct its own background
checks
would fly in the face
of
the CPIC
agreement
with TPS
to adhere to TpS
recommendations regarding clearance. As well, the TPS
review included broader
issues, such as, affiliations and
familial relationships, that could also be cause
for
concern.
28
The
collective agreement is
virtually silent on the
implications ol.
failing a
"refresher" cPIC
check. There is
the
following management rights clause.
'Article A
- Management Rights
The parties agree
that it is
the exclusive function of
the Employer to manage the
organization subject
to the
terms of the collective agreement.
Management's rights include, but are not
limited to,
the following:
aJ determine function, complemen! organization and
location;b) determine assignment of worh work methods and procedures;c] hire, classiff, promote, demote,layoff, assign,
recall,
appoin! appraise, train,
transfer, discharge, suspend or otherwise discipline subject
to an employee's
right to lodge a grievance as provided for in this Agreement;dl select install and
require the operation of any
equipment or machinery.
Management agrees
that these functions will be exercised in a
fair and reasonable
manner."
And,
Letter of Understanding #9 - Special Constable Re-qualification reads:
"ln the event
that an employee does
not re-qualisr
for Special Corrstable status, or
decertification is recommended, the Employer shall continue to pay the employee
the Special Constable premium until a final decision is
made ny fne
Toronto police
Services Board as per the Police Services
Act, In accordance
with the Memorandum
of Agreement between Toronto Police Services Board [TpsB) and
Toronto
Community Housing Corporation ITCHC) regarding qualifications for appointment
of Special Constables,
the TCHC
must satisfli the
requirement of good chiracter,
reputation, and suitability of each
applicant. The TCHC
commits to resubmit the
employee's application should assurances be
made that any issue
that compromises
the employee's good character, reputation, and
suitability are resolved. The
employee shall provide all necessary documentation to substantiilte this assurance.,,
SUBMISSIONS
The
submissions of the parties are next set
out in an abbreviated tform.
The union's representative reviewed the evidence in some
detail ilnd,
helpfully,
provided a summary of
her
argument. The
union did not dispute that dispatchers
require CPIC
clearance as they have direct access to CPIC.
However,
that was
contrasted
with the
indirect access
of
the other security officers to
that information.
29
It was
argued
that TCHC's
position was
in excess of the required standards for
safeguarding CPIC
information. Further, the policy constituted ar
unilateral rule that
did not meet the test enunciated in KVP,
infra. Nor, was
the policy consistent with
the concept of progressive discipline or just cause. While conceding that TpS is
responsible for conducting CPIC
checks and that neither TCHC,
nor the
individual, is
advised of
the reasons for failing CPIC
clearance, she argued
that the interests of the
employee were not adequately taken into accoun! particularly since
the
consequence was loss of employment and there may have been no
culpable conduct
by the employee.
TCHC
was properly concerned about the
vulnerability of
the tenant
population but
it
was stressed that the personnel of
the private security companies worked in the
residential buildings and
were not CPIC
cleared. And,
the new CIIO of TCHC was
given, on his request a
radio but was not CplC checked.
It was
contended that the union's suggestions, which she
reviewed, were
operationally feasible and TCHC
could also conduct other checks, such as a
vulnerable sector screening to allay concerns
with respect to the security of CplC
information, the
integrity of
the Special Constable
program and
the safety of
the
security officers, Also
relevant were the
relatively few CPIC checks conducted, when
measured on a daily basis, and
that the overall levels of CPIC checks had declined
over the years. The
union acknowledged the
importance of the Special Constable
program, supported keeping the
numbers of those persons at the maximum level
and
did not challenge
the requirement that Special Constables, because of
their
status as peace officers, must
submit to "refresher" cplc checks at five year
intervals.
The
union did not challenge the
requirement for CPIC
clearance at the
time of
hiring
but the
union's representative asserted
that a
security officer sho
uld
not lose
his/her job because of a
failed "refresher" check. The other cases,
noted below,
were reviewed in support of
her contention that an order be issueld
directing the
retention, in their positions, of
the small number of security officers who
did not
30
pass
the "refresher" clearance. It was clarified that, should a Special Constable fail a
"refresher" check,
that individual would move down to
the CpO
classification, even
if
that meant bumping out another CPO.
It was
also conceded that there might be
circumstances wherein the dismissal of an
employee who lost CplC clearance was
appropriate on a case-by-case basis, consistent with the law
and the
collective
agreement. In the alternative, an
order was sought to require TCHC,s ,,best efforts,,
to place the
individuals in suitable, equivalen! positions elsewhere in the TCHC.
cases
cited:
zhangv. [200s] c.p,S.L.R.B. No.
175 fMackenzieJ; IffP, [1965] O.L.A.A. No.
2 [Robinson); Sensenbrenner Hospital,
Kapuskasing. 120021 O.L.A.A. No.
602 [BrentJ;
[1988] O.L.A.A. No. 52 [SolomatenkoJ; Bell canada. [Lggt]c.L.A.D. No.
34 (Shime).
Employer counsel reviewed the evidence
with respect to the
strur:ture of the
bargaining unit, the nature of the
work performed, the significance of CplC clearance
and the
nature of the community served. As a general principle, he
argued that the
loss
of CPIC
clearance rendered the individual unable
to perform the duties and
responsibilities of that position. It was not a question of fault, bla.me
or the reason
the CPIC check
failed but more akin to positions requiring specific
certification or
licence' If that certification was lost, the
individual could not continue in the
position. In the instant case,
virtually all of the positions needed
to access CplC:
there was nowhere else
in the bargaining unit that those who failerd CplC checks
could be transferred. Further, there was no certainty that, if a Special Constable
failed a "refresher" check,
he/she could be bumped down to a CPCIand
another CpO
promoted to Special Constable since the clearance checks
for the
latter position
were more
rigorous than
for CPO's.
It was also
submitted that the employees in the
csU should be held to a higher standard than in other sectors.
Counsel stressed
that the
information contained in CPIC
went beyond Canadian
sources to include American law agencies and
Interpol. Thus, the risk of improper
disclosure, even
if small,
could result in great harm. It was TCHC's
responsibility to
judge the acceptable
level of
risk and TCHC
management was
ultimately accountable
31
for the security of the CPIC
information. Counsel noted
the
distinction between
direct and
indirect access
referenced in the documentation but emphasized the
difference between an
accidental overhearing of
information provided in code [such
as someone using a police scanner) and what disclosure TCHC could control.
Counsel conceded that
it was not possible to know
for certain what would happen
if
the "strong recommendation" of TPS
that security officers undergo "refresher,,
checks
or if those who failed were retained in
their positions, He contended that
it
was a reasonable inference that the continued access
to CPIC
ancl
the Special
Constable program were at
risk
if TPS
recommendations and
findings were ignored,
particularly in view of the terms of
the agreements
with the RCMp
and TpS
providing for the
termination of those agreements by those
law ernforcement
agencies. It was
not a
matter of TCHC's
ability to rule out some
reasons why the
CPIC
check was
failed but the basic issue of the loss of confidence by the TpS
in the
safeguardlng of CPIC
information by TCHC.
That CPIC
clearance was a valid
condition of hire,
which was not disputed, demonstrated the
importance and
reasonableness of the
requirement that cplC clearance be
maintained.
It was
subrnitted
that TCHC
considered the options suggested by the union, as
reflected
in Boyce-Richard's
repor! and
hired an outside consultant to review the
feasibility of a pilot project. Asbury's report indicated that a pilot project was
technicall5r' feasible,
although difficult to design,
but her
broader assessment was
tha! implicit in the loss of CPIC
clearance, was
the loss
of trust in the employee. In
the absence of
knowing the basis
for failing CPIC,
employer counsel argued
it was
reasonable
for TCHC to decide
that the risks should not be assumed.
Counsel
reviewed the jurisprudence in
support of
his position, inciicating that the
cost administrative inconvenience and the duration of any
accommodation were
also legitinnate
factors
for TCHC
to consider, which
it did. He argued that the test
was not the reasonableness of the union's suggestions but
whether TCHC
considered those options and had reasonable
grounds to reject those proposals.
The likely impact on the
relationship amongst
officers and
the practical impact on
r1't
\32\
\
operatiohs of
creating two classes of officers, based on
whether there was
CplC \v, p4evv vrr vvrtuLrrul LIIEI c vvd5
clearancf, werE appropriate considerations.
In summf ry,
with respect to placing those persons who failed
cplc clearance
elsewher! in the cSU,
counsel emphasized that the nature of
the bargaining uni!
includin8]its relatively small size,
precluded that option as a practical matter.
Further, }|e
argrled that there was no legal
obligation to place those individuals who
failed CPIC
cleafance elsewhere at TCHC,
in other bargaining units. Thus, counsel
submitte$ that the remedies sought by
the union should not be granted.
Cases
ci: Ontario lockey Club. ltg77l O.L.A.A. No.
4 (KennedyJ; Grearcr_Tors$q
120041C.L.A.D. No.
524 (BrentJ; Ontario
Hydrs lIgs7lO.L.R.D.
Nairn); Moncton (cir,vl 2004 cLB L3210 (Gormanl; [N.v. Durham
2012 ONCA 428 (Ont.C.A.J; Bell Canada.
supra; CiW
of
[Springa
(200E),152 L.A.c. (4th)
43 (BrandtJ; Hamilton (ciwJ, 2000
cLB t2sLZ
); Innisfil [Town]. L997 CLB
12569 [LevinsonJ.
In reply, t$e union's representative submitted that the collective agreement was
not
negotiate{ with TPS
and TCHC
could not ignore those
obligations. Further, TpS wasga
only conclrned With CPICaccess and not the competence of the
individuals to
otherwise perfonm
their duties and
responsibilities, The cases
cited by employer
counsel
wfre disltinguished as
not applicable to the instant circumstances. As
well,
there was iro eviflence
that creating two categories of officers, based
on
whether
they were plearefl for CPIC
would be
divisive. Finally,
without knowing the basis
for
the
failure to cle4r CPIC,
it was
speculative to conclude
that the reasons would
compromile the
integrity of CPIC
or the Special
Constable program. Thus,
it would
be
unfair tg terminate an
individual's employment based on speculation.
DECISION
The jurisprudencle referred to by the parties has been reviewed and is discussed as
appropriatp.
33
The cases
may conveniently be grouped into two broad categoriers: those dealing
with loss of a driver's licence and those addressing security issues. I
first turn to
those instances where the loss of a
driver's licence impacted on
the
ability of
the
employee to carry out the usual duties and
responsibilities.
One case
relied upon by the union, and cited in several other decisions since, is Bell
Canada.
supra. The grievor therein was a line technician who
dr.ve a vehicle to
perform his job. He
lost his
driver's licence for impaired driving r^/hile
off-duty and
was
subsequently fired. In the Past, the grievor had also
worked as
a
material
handler, which position did not require a driving licence. There was no evidence
that the company had considered placing the
grievor elsewhere, or that he could not
be accommodated
without affecting the company's
production nereds. The
next
excerpt captures the arbitrator's reasoning.
"9. .'.An employee who loses
his or her driving licence
for
violation of
the Highway
Traffic
Act fcitation omitted], or a similar statute need
not suffer a loss
of
employmen! even where the employee is required to have a driving licence in order
to perform his or her duties. An employer is
required to
act."uronibly and
must
balance
its interests in maintaining production with the grievor's inteiest in
retaining his or her employment, Also some care
should be taken
to ensure that the
employee is
not penalized twice for off-duty conduct but rather that there is a
legitimate and significant employer interest that is being protected. And, finally, in
the loss of licence cases
there is a presumption that an employee s;hould be
suspended
until other work is available or the employee's
driving privileges are
restored."
In his analysis,
the
arbitrator cited an
earlier decision of his
between the same
parties fBohan grievance, unreported, Novemb
er L4,l9B4) wherelin he asserted the
following.
"One must expect
that employees from time to time
will be
found guilty of
violating
provincial traffic laws, or even
the Criminal Code,
with the result that penalties
imposed
will indirectly affect
their ability to function at
work. Ther loss of a
driving
licence for
violation of
the Highway Traffic Act is
not an
extraordinary circumstance.
While we do
not condone
drinking or driving offences,
they may be
considered as
part of the normal incidents of
life for the average employee. Should an
employee
who is penalized for violating the law also
suffer in his or her employment?,,
34
Arbitrator shime, in Bell canada, supra, issued a declaratory order reinstating the
grievor but directing the company and the union meet
to determine if the
grievor
could be absorbed into the workforce without disrupting production requirements.
counsel for the employer also cited jurisprudence addressing the loss of a
driver,s
licence and
it is to those three cases
that I
next turn.
The situtation in Town of
Innisfil. supra, involved a two-year suspension of a driver,s
licence tflor
impaired driving. The grievor's position required that he
hold a
class ,,G,,
licence' What is important to the
matter before me is
that the Town ultimately
discharl;ed the employee who then grieved: he
sought reinstatement to his position,
although without being assigned driving duties, or a leave of absernce
with the
right
to
return once
the suspension was
lifted. I need not address another issue
regarding
accommodation of a
handicap, namely, alcoholism. At paragraph 19,
the
arbitrator
found that a Class "G" licence was
reasonably related to
the dutier; of
the position
and
that "driving is an
integral, essential and
significant component', of the job. The
employer had considered, but rejected, other alternatives to discharge, including
removing driving duties, "doubling-up" with another employee, orher bargaining
unit and
non-bargaining unit positions, and
hiring an
outside contractor or a
temporary replacement employee for the period of
the suspension. The
arbitrator
concluderd
that the Town's rejection of these options, as not operationally feasible,
was
reasonable. Also
relevant to the analysis was the length of the suspension, the
small size of the workforce and "the fact
that there was no
alternate work that the
grievor hrere
could effectively do within or outside the
bargaining unit due,
in parl
to
restructuring and lay offs
in other departments" [at par. 30J. u.ttimately, it was
concluded that the discharge was for just cause. As he stated, at paragraph 2B: ,,ln
my view, the Town's legitimate interest in having the grievor,s wa.terworks
Operator job duties performed efficiently for two years is
not, in these
particular
circumstilnces, outweighed by the grievor's interest in keeping his employment
keeping in mind the grievor's approximately 20
months of seniority,'.
35
The next decision in chronological order is that of
the erwpfxarnilton. supra.
Again,
other issues, including accommodation of a
handicap and
the sequence of
events need not be
addressed. What is critical is that a
convictio n for failing or
refusing to provide a
breath sample resulted in the suspension o;f,
the driver,s licence
for two years and
the grievor was discharged from his position ars
a
sanitation
worker' Arbitrator Springate adopted the analysis in Bell Canad;L supra,
that an
"emplolrer must balance its interests in maintaining production with the employee,s
interest in retaining his
or her
employment" fat par. 94). rnpass,tng he
commented
on part of the reasoning in Bell canada, supra, as follows.
"[97] The views of :9?grylegarding drinking and
driving have changed
considerably since Lg94when Mr. Shime made his comments about
Jrinking ordriving rrffences being part of the normal incidents of
life for the erverage employee.
Increaserd
recognition of
the harm caused to innocent victims by
drinklng driveis
has
led to a marked increase in the penalties that courts now impose on p..ron,
who eng,age
in such
activity. This includes lengthier driver's licence suspensions
that can
impact on an employer's ability to continue an
individual in employment.,,
The cru>rl
of his reasoning is
found in the next excerpts.
"[101] T'he
only position where the employer could reasonably have
employed the
grievor was as a labourer with no driving responsibilities. Despite its goal of
having
all publir: works employees hold a D Z licence,
the employer stiil employs a
number
of
labourers
who do
not hold such a
licence. The evidence establishes,
towever,
that there was,
and is,
no permanent labourer vacancy the grievorcould move into.
Further, the union did not suggest
that the grievor had a right to displace
another
labourer.
"U021 The evidence indicates that the only way
for the employer to employ the
grievor on an on-going basis
would be
for it to continuously
try to
find
and/or
create w,ork
for him. While
it is reasonable to require an employer to engage
in this
type of approach for a relatively short period of time, two years is simply too long.
Because
of the extended
period of
time involved, the employer's interest in efficient
operations outweighs the grievor's interest in continuing to
work for the employer."
Finally, tlhere is the
more recent decision in the City of Brockville. rsupra. The grievor
was convicted of
impaired driving,
resulting in the suspension of kris
licence
for
twelve months and a further twelve months
wherein any vehicle clriven must have
36
an
ignit'ion interlock device and an
additional year due
to the grievor,s delay in
enrolli'g in a "Back on
Track" program. while the grievor was demoted to a
labourer position pending the outcome of
the impaired driving charge, he
was
ultimately terminated. There was extensive evidence regarding the employer,s
operations and
the duties of
the position held by the grievor. The union suggested
several alternatives, including "doubling up"
with another employee, being driven to
and
from the worksite, and being
granted a leave of absence. It was held
that these
alternatives were not feasible operationally. In particular, the grievor would be
unable
to perform the regularly scheduled on call emergency duties. There were no
other duties sufficient to occupy a
full-time workload. As
well,
the cost of
installing
an ignition interlock device on all vehicles was prohibitive and
might cause
resentment amongst other employees who
would also be
required to use those
devices before
driving. In
view of
other provisions in the collective agreement,
granting a
leave of absence and
later reinstatement would necessitate the layoff of
the replacement employee. That, in
turn, would prevent the employer from hiring
temporary workers and summer students, thereby compromising the City,s
ability
to fulfill its public mandate.
The reasoning in Brockville. supra, canvassed the analyses in Haudllqu and
Innisfil.
noted
above' In
line with those cases, and in
view of the duration of
the licence
restrictions, the grievor's interest in retaining his employment was
outweighed by
the employer's legitimate interest in carrying out its functions in a "timely and
efficient manner" (at p. 5BJ.
Somewhilt akin to
this line of cases
is
the decision, also relied upon by
the union, in
Sensenbrenner Hospital. supra. One question to be
determined
therein dealt
with
claimed payment for tuition and books;
that is
not relevant to the matter before me.
The
other issue
involved the
failure of
the grievor to obtain the certification
required for all paramedics, pursuant to changes
to the Ambulance
Act. The
hospital
terminated the grievor's employment. The arbitration board held that there was no
37
just cause
to discipline the
grievor as he
had
not committed any
misconduct. The
result c,f the grievance is
reflected in the penultimate paragraph, next set out.
"28. Gi'ren
that we have
determined that the Hospital does
not have just cause todischarge or discipline the
grievor, and given the provisions in the collective
agreement to which we have
referred above, what then should be
done
with thegrievor'? In the
first place he
is entitled to have his status as an e
mployee of theHospital reinstated, with all the
seniority and
other entitlements to
wirich hisser!'ice and
seniority would entitle him as
of the date of
his discharge remainingintact. r,//e believe that the most appropriate way to deal
with the gii.uo. under all
of
the circumstances before us
is to consider that as
of fthe terminltion date] he wasplaced crn
leave of ab-sence
without pay for a period of
twenty four (24)rnonih, ithusame perriod a laid off employee retains recall rightsJ unless
ierminitei earlier by
the grie'ror or by agreement of the parties. For the period of his Ieave
the grievorwill be erble
to
applyfor all postings, just like any
other bargaining unit employee,
and
will have
the right to be considered for postings just like any
other bargaining
unit employee' He
will not be
entitled to any compensation or benefits during theperiod c'f
his
leave' We
leave it to
the parties to
airange the details of the
leavl and
the method by
which the grievor will be
informed of anv vacancies.,,
Before
leaving the Sensenbrenner case,
setting out another paragraph from that
decision
is
warranted.
"25. The Hospital has
argued that
it was prevented by law
from employing the
grievor. Surely the Ambulance Act and
its regulations would have
nothing to say
about
the grievor's employment with the Hospital in any capacity other than as a
pararmedlic. If this were a bargaining unit made up solely of paramedics, then the
Hospital's argument might possibly have some justification; howevel this is a
bargaining unit
with many different classifications in
it and
the Hospital is
not
prevented by the Ambulance Act or its regulations from employing him
in any save
the paramedic classifications."
The second
line of cases
more directly addresses issues of security clearances. The
two clecisions cited by the union are
first reviewed.
The 198€l decision in Municipality of
Metropolitan Toronto, supra, involved a policy
grievilnce challenging the employer's implementation of security checks
for those
janitorial and
municipally o
police as part o
documernts fo
police
with res
janil-orial servi
application of
the exercise of
The
arbiitrator
checks vyas
not
checks resulted
which was
for
next excerpt.
"31 In
myview,
that the
Municip
be accountable
security checks
funct,ions
in a
agreement. Mo
system of securi
affecl-ed
by the
coller:tive agree
The
right in qu
discrimirratory.
was "unsuitable"
obligation to e
substantively to
The
arbitrator di
princliple but tha
revievr the securi
that
this decision
3B
intenance employees working at police stations housed in
ed
buildings' The request for security checks was
initiated by the
a
broader upgrading of
security arrangements. There were no
ally setting out the arrangement between the Municipality and the
to
the use of
the premises or the
provision of maintenance and
s' I need not review the portions of
the decision dealing
with the
e
charter or
arbitrability. The collective agreement stipulated that
nagement rights must not be
inconsistent with other provisions.
rved
thatthe propriety of
the police force's interest in
securiw
fore
him. Further, if the city's failure to implement those
securiw
n the loss of
bargaining unit jobs, that was an "economic reality,,
e parties to resolve. The core of the analysis was expressed in the
t is
not a
reasonable construction of
the collective agreement to sayrlity can delegate its managerial functions to a third-party and
not
the actions of that other party. ...
By
adopting the policy of
it did in
this instance the
Municipality exercised
iti management
nner which was inconsistent with the provisions of
the
colLctive
specifically, it was in
violation of the agreement because
this
'checks effectively deprived an employee who might be
adversely
licy
from exercising the
full extent of his
or her rights under theent"
ion was
the opportunity to challenge a transfer request as
nce the Municipality would only be
advised
that the employee
following the security check,
the
Municipality could not
fulfill its
re the
transfer was free
from discrimination and could not
reply
e grievance.
note, as
an aside,
that security checks may
not be
unreasonable in
the procedure in this instance did not provide for a
mechanism to
determination. Atparagraph 33, he
added that"',1 emphasize
does
not stand
for the
proposition that the employer is
without
39
contrac:tual competence to institute a
rule or policy of
security checks
for its
cleaLners
at police stations. It merely finds that the policy which was subject of
this
gri€rvance was in
violation of
the collective agreement,,.
The Zhe4g case,
supra, involved the discharge of an employee following the
revocation of
her "secret" clearance in conjunction with the failune to receive the
"ToP Secret" clearance needed for her transfer to
the Privy Council Office
from a
positionLwith Industry Canada. The
termination was
characterized as
non-
disciplinary. Where security clearance was
revoked, the personnel Secu.tv
standard, promulgated by the
governmen! mandated consideration of
reassignment or appointment to a less
sensitive position at an
equivalent level,
if
possible, or a lower level. At issue was
the extent of the employer's obligation to
"search 'Ciligently" for alternative positions or whether there were ,,exceptional
circumsl-ances" which relieved the employer of
this obligation (par. s7). The
adjurcicator held
that the search must extend throughout the other departments and
thertl was
no evidence
grounding a finding of
exceptional circumstances. The
griev'ance was
allowed in parf in that the grievor was
reinstated to a leave
with pay
status
for two months to permit the employer to
diligently search
for an
alternative
position. Nonetheless, the next passage from the decision is probative.
"67 ."The employer had an
opportunity to introduce evidence in
reply to
contradict
Ms.
Zhang's
testimony that her enhanced
reliability status had
not been revoked or
cancelllecl. Consequently, I
must proceed on the basis
that her enhanced
reliabiliw
status wa s not cancelled or revoked
"68 If thr:re was evidence that Ms. Zhang's enhanced
reliability status had been
revol'led, I would accept
the fact
that the employer could not make a
diligent search
for alternLate positions. However, on
the evidence presented, she
r,etainJd nut
enhancecl
reliability status at
the
time of her termination of
employment. If the
employer had concerns about Ms.
Zhang's reliability, it could
hive revoked her
enhatrcecl
reliability status. It is likely that such an action
would have effectively
eliminated all possible alternate positions. (This is based on my assumption that
there are few,
if any, positions with the public service
that are at a
level
lower than
enhancedl
reliability.i However, it is
not open to
the employer to justify its failure to
searclh
for alternate positions on the basis of concerns about
reliabiliW without
revoking the grievor's enhanced
reliability status.,,
40
Employer counsel countered with three cases also addressing security concerns.
The
Ontario Jockey CIub decision, supra, involved a
machine supervisor and
ticket
seller charged
with offences relating to the use of premises as a betting house and
the operating of a betting house. The company had contacted the police and learned
that it was
believed that there was a good case against the grievor. pending
disposition of the charges, the
grievor was suspended without pay. There was no
dispute that the grievor's guilt or innocence was not the issue. Rzrther,
the company
bore
the onus of satisffing the
arbitration board that the presence of the grievor on
site
constituted a "reasonably serious and
immediate risk to the
legitimate concerns
of the
employer" [at par. 6J. In finding the company had
satisfied that onus,
the
arbitration board focused on
the "unique nature of the business conducted by the
fockey Club" (at par. 7J. The
reasoning continued:
"7..,Under the provisions of
the Criminal Code,
bookmaking is
in general a criminal
activity and
within the Criminal Code,
there is specific recognition of
certain limited
areas
wherein legalized betting is permitted. The Jockey Club constitutes one of
thelimited exceptions wherein legalized gambling can take-place
within the existing
law. For that reason,
it is
not only
within the legitimate interests of the Jockey Club,
but it is
indeed a basic requirement of
its continued legal existence that
it rigorously
avoid any
form qf association
with the illegal forms of
bookmaking. For that reason
it has the
very
strict policy of barring from its premises any person that is
either
directly or
indirectly related to
the ilregar aspecG of bookmaking.,,
The above paragraph also
included the following statement:
"Since the presence of an
individual under the shadow of a betting-related charge is
not permitted on Company premises, there
would be
no alternative areas
of
employment or modification in the
supervisory procedures which
would meet the
basic objection of
having the grievor present at the track.,,
In summary, as
noted at paragraph B, the "suspension is not really
disciplinary in
nature,
but rather is protective to the [employer's] interests": the "mere existence of
the charge" was
held to "substantially undermine the effectiveness of
the employee
in the
work environment". Thus,
the grievance was dismissed.
4L
In the LrglqrMqnglqn, supra, the grievance challenged the discharge of an
employee' of the several issues raised in the grievance and
the preliminary
jurisdictional issues raised by the employer, I need
focus only on
the security
clearance dispute. The position in question was
that of a
telecom operator in the
regional RCMP
office' Telecom operators have access
to CplC
and
the police
Information Retrieval system ["plRs"j and the authority to add
or delete
information inputted by
the RCMP
in
their detachment. As
well, they would have
knowledge of ongoing investigations and
full access
to the investigative files.
security clearance at
the "enhanced reliability status,,was an essential job
requirement.
The RCMP
conducts the security checks and
its decision to grant trr
withdraw
clearance is
solely in its purview, without input from the
City. Security clearance is
repeated at five-year intervals but could be
reviewed at any time. At par. 59,
there is
noted the
following: "When an
investigation is conducted the persons who are being
investigated are informed about
the process and
certain prescribed forms are used.
A check
with respect to associates is conducted,
particularly with a
view to any
vulnerab
ility to blackmail".
Commencing
in t998, the grievor worked in the
volunteer
position of
auxiliary
police officer and received the requisite clearance. In that review, she disclosed a
prior common law
relationship with a man freferred to as "A") with whom she had
three
children but who, at times, was a prison inmate for various offences. In 200 j.,
she
applied for the position of telecom operator and,
initially, received the
security
clearance needed
for that post. At that
poin! 'A" was again
incarcerated. Soon
thereafter,
it emerged
that the grievor had sought,
or agreed to,
overnight trailer
visits
with "A". There was some
confusion as to the reasons
for the
visits but,
ultimately, nothing
turns on
that. The RCMp
decided
to update the grievor's
security status; Ultimately, the clearance was
revoked on the basis that she was
"unsuitable" for the position of
telecom operator. The City,
without investigating
other job opportunities, terminated her employment.
42
There rvas evidpnce as
to the reasons for failing the
security check. The RCMp was
concemed abo$t her continuing association with ,A,,who was in prison for drug
trafticking and was considered a risk for having drugs brought into the penitentiary.
The Force was also concerned about telephone calls
from ,,A,, tothe grievor,s home
and
that the grigvor initially advised the RCMP
that she had
very
little contact with
"4",
The
arbitration board ruled that the grievance was
arbitrable because of
the non-
discrimination clauses in the collective agreement and because
discrimination on
the basis of family status was alleged. It was
found that there was no
discrimination
as the grievor had "misrepresented or
withheld information with respect to the
extent of her
relationship" with '4" [par. 63). "lt was the nature and extent of
the
continuing affiliation between the Grievor and [,,A,,] that caused concern,,, not the
fact
that they were formerly common law spouses
with children together [par. 64J.
The
arbitration board also noted that the employer did not discriminate against the
grievor since
it was
the RCMP
that conducted the investigation and made the
determination that the grievor was no
longer suitable for the position telecom
operator as
she did not have
the necessary security clearance. As
stated in
paratrJraph 69, "this is
not a
situation over which the Employer had any
control and
it
was
understood by the Grievor when she
applied for the job that she
would have
to
obtain and
maintain the
security clearance.,,
The last of the three decisions was the award in
supral [the "GT&I"J. The
two grievors were
first suspended, and then dismissed, on
non-clisciplinary grounds as there were no allegations of
wrongdoing or misconduct.
The
vrorkplace stlspensions flowed from the suspensions of their security
clearances and
the discharges were a consequence of the subsequent revocation of
those clearances pursuant to the
Airport Restricted Area Access Clearance program
("ARltACP"). Thq
next paragraph concisely describes the setting.
43
"3 By'way of background, since L996 the Employer has
operated Lester B, pearson
International Airpor! the largest airport in canada. As
an'aerodrome operator,uncler the Aeronautics Act and
its regulations it is required by
law to establish andmaintain certain security measures. Transport canada sets the
minimum standardswhich lthe Employer must meet in order tosecure the
airport. As part of thosestandards, Transport canada requires that all of
the Empioyer,s employees whohave access
to
restricted areas of the
airport [essentially those
u..u,
*hur.passengers must pass though security screening to enterJ must have a
restrictedarea access
pass. In order to obtain that pass, employees must be cleared byTransport canada both_on
hiring and at periodic intervals during their employment.In a'ddittion,
Transport canada can decide to suspend or evoke clearance at any time,The
Employer is never informed of
the particular information on
which a
decision torevoke was made;
it is
informed only of
thu section under the
AMACp standardswhich rvvere invoked to do
so,
If clearance is
revoked there is
the right of appeal tothe lFederal Court of Canada,,,
The
section under which the grievors lost security clearance reads:
"The objective of
this Program is to prevent the uncontrolled entry into arestricted area of a listed
airport by an
individual who
a'
is
known or suspected to be
involved in activities directed toward or insupport ofthe threat or use
ofacts ofserious violence against persons or
prroperty;
br' is
known or suspected to be a
member of
an
organization which is
known
or suspected to be
involved in activities directed toward or in
support of
thethreat or use
ofacts ofserious violence against people o. p.op".ty,
c'
is suspected of being closely associated with an
individual whols known or
suspected
of
i. being involved in activities referred to in paragraph (a);
ii being a
member of an
organization referred
toln parigraph [bJ.',
Over
the years, the employer had conducted vulnerability assessments
resulting in
enhanced security measures and,
after September
lI,z}}r,the ernployer and
Transport canada again increased security standards, In 2003,
the employer
required that all employees must continue to
retain security clearance as a
condition of employment regardless of
whether their jobs needed
restricted area
access passes. In that respect, the employer's policies were
stricter than the
minirnurn standards set
by Transport Canada;
there was evidence
that the GTAA
44
standards are
often adhered to by
other airports in the
country. At paragraph 5,
the
arbitrator observed:
"[The employer's] evidence was uncontradicted that the
airport is considered to behigh ris;k potential terror target and that its shutdown would result in a
significantnationerl economic problem. Not
surprisingly, the Employer is concerned aboutpotential criminal and
terror activities wrrich could afiect its operation and thesafety of those who frequent the airport.,,
The jobs in question were referred to as "PIR's". Approximately 70o/o
togg% of
the
duties c:ould
be carried out
in non-restricted areas.
while much of
the information
available to the PIR is
also publicly available, some is
not. plR,s can
monitor
emergency frequencies in the office and are advised about what systems are down.
crowd control in the baggage area was noted as
an area
where security problems
could be created, if the PIR
was so
inclined. PIR's
were responsible for issuing
temporary passes to persons, such as
tradesmen, who needed to enter secure areas.
It was
acknowledged that it was possible to schedule PIR's so that they would not be
working in restricted access areas
but that was problematic in that a plR could
never be
scheduled on a shift alone and
the PIR's preferred to rotate amongst
their
various duties during a shift. As
well, there was
testimony from the employer about
a concern
that a PIR
without security clearance might have
to act on
the
airport,s
behalf
if there was a bomb threat in a
non-restricted area,
The
arbitrator was
first prepared to assume,
without
finding that the
grievors could
have
been assigned work as
PIR's
outside the restricted areas
during
their
suspensions. Notwithstanding that assumption, the
arbitrator concluded that, on a
balancing of
interests, the union's
position that the grievors remain at
work could
not be
maintained' During the period the security clearances were suspended, the
reasons
lbr the suspension were not communicated to the grievors or the
employer.
The
next excerpt from paragraph L9 is
appropriately recounted.
"l"9...Therefore, it would have been
impossible for the Employer to investigate in
order to make any
more informed assessment of
risk. The
Employ".
op.."tu. un
airport rn'hich is viewed as a potential target of
terror or
criminal activiry. It has an
45
obligatlion to ensure that its premises, its tenants, the
traveling public, and theproperly that passes through it is as safe as possible, withouiknowing or beingable
to ascertain what potential security
risl was
identified by
Transpirt canada tosuspenrl the grievors' securitJr clearance, I think that
it is
not unreasonable for theEmploy'er
to determine that the potential risk to
its operation outweighed thegrievor's'interest in continuing to
work, and so
to have suspended the-grievorspending the completion of
the review of
their security cleaiance. TherI may
well besituations where not knowing what possible risk an employer may face bycontinuing to employ someone under investigation is
too great a
risk to ask
thatemployer to assume. I believe that this is one of those situations, and
that theEmployer's interests must prevail given the
nature of
its business.,,
The
employer's basic
position was
that the
security clearance wa5 a
necessary
requirement of any job in the bargaining unit. The
union acknowledged thag once
the
grievors'security clearance was revoked, they could not continue in the plR
position. However, the union contended that the grievors could have been assigned
to other positions where access
to restricted areas
was not required by
law. That is,
what was challenged, as
unreasonable, was
the employer's rule that all employees
must
maintain security clearance at the Ievel needed for a restricted area pass. The
arbitrator viewed the circumstances as "directly analogous to that which would
arise
when a
third party, such as a licencing or professional governing body revoked
an employee's licence, and having that licence was a reasonable
condition of
employment" fat par. 26).
The essence of Arbitrator Brenfs analysis in acceptingthe employer's position and
her final commentary warrant setting out in full,
"27 Given the evidence about heightened security concerns
following September
L1-, the need
to re-establish
public confidence in the safety of flying and the need
to
maintain a secure
environment for employees, users of the
airport and
the goods
passing
through it, I do not consider it unreasonable to make a condition of
employment that
all employees obtain the same
security clearance
from Transport
Canada that would be required of employees who have access
to
restricted areas.
There is no evidence of
the Employer ever having exercised its discretion to make
an excep
lion to
this general rule of
employability. Therefore, I agree
with the
Employer
that there is no
room
for a
balancing of interests and that the grievances
must fail because the grievors failed to maintain
their security clearance, which was
a reasonable
condition of employment.
46
"28 Having said
tha! though, and having read
the provisions under which thegrievors'security clearance was revok.d, unyon. concerned with civil liberties andcivil rights would be moved to shudder. It is possible that a person could loseclearance only because he/she was suspected of an
association with someone whowas suspected of being a
threat. That verges on
the
surreal; however, this is not theforum
to take issue
with Transport Canada,s action.,,
Apart from the two categories of cases discussed above,
the union also argued
that
the
criteria enunciated in the seminal decision of KVP.
supra, should be
applied in
the instant case
and,
further, that TCHC
did not meet those standards in
determining
that the security officers who failed the "refresher" clearance should be
terminated.
The facts
in KVP'
supra, are
far removed from the grievance before me
but the case
does
articulate the basis on
which a rule unilaterally introduced by an
employer
should be
adjudged. The
relevantpassage is
nextrecounted.
"34 A rule unilaterally introduced by
the company, and not subsequently agreed to
by the union, must satiss/ the following requisites:
L. It must not be
inconsistent with the collective agreement.2. It must not be
unreasonable.
3. It must be clear and unequivocal.
4. It must be
brought to the
attention of the employee affected before the
company can
act on
it.
5' T'he
employee concerned must have been
notified that a breach of such rule
could result in
his discharge if the rule is used as a
foundation for discharge.6. Such
rule should have been consistently enforced by
the company from the
time it was
introduced."
It was also held in KVP,
supra, that the breach of the rule is
not binding upon an
arbitrator, or
arbitration board, unless
the breach is
found to constitute iust cause
for dismissal,
The jurisprudence and factual findings have been set out at quite some length
because of the importance of
this issue
to the parties and,
although
this dispute is
filed as a policy grievance, because of
the potential impact on the continued
employment of personnel in the
bargaining
unit. It is not my intention at
this
47
juncture to
reiterate the case
law or the facts in detail but, rather-, to summarize the
relevant points on which my analysis is grounded.
As
merrtioned, one category of cases
referred to dealt with the loss of a
driver,s
licence where such
qualification was necessary to perform the duties of the job. It is
first noted that these cases are
not really analogous to the factual situation before
me but, nonetheless, provide a
useful starting point.
I accept the approach in Bell Canada. supra, that there must be a
balancing of the
competing interests. That is,
the employer's legitimate interest in an efficient
oper?ti'cr and
the employee's legitimate interest in retaining his/her employment
must both be
accorded weight. This approach is not amenable to a
formulaic
assessment but must consider the factors at play in the specific
grievance. What can
be dedu ced
from this line of cases is
that certain factors are
repeatedly noted as
important. Those include the nature of the employer's business, the size of the
bargainlng unit, the length of
the suspension of the licence, and
the impact of
other
provisions of the collective agreement on
the employer's operations if the grievor
was
retained: see,
Town of
Innisfil. supra; erqlafllQglfftUe, supra;
ciV of
Hamilton.
supra; and, of course, Bell Canada.
supra.
Generally,
it may be said that the larger the bargaining
uni! the availability of
other
work which the grievor was qualified to perform, the
shorter the period the licence
was suspended and
the absence of any other collective agreement provision that
would be triggered fand that would hamper the employer's operations), the more
likely thiat
the balancing of the competing interests would favour the
retention of the
grievor in
his/her employment for the period of the licence
suspension. While the
circumst.ances in Sensenbrenner Hospital, supra,
did not involve the loss
of a
driver's .[icence
but the
statutory
prohibition of
continuing the grievor,s
employnrent as a paramedic, the
thrust of the reasoning is consistent
with the
"alcohol" cases.
48
In a
ddition to these factors, I
would also observe that the relative weighting of the
competing interests may change over time to reflect differing societal concerns. It is
for this reason that the quotation was included from the eiW.p{ FIam:tqE decision,
supra, to the effect that the tolerance of society for drinking and
driving has
significantly changed since
Arbitrator Shime's comment about impaired driving
offences being unremarkable. I return to
this concept of changed societal
sens;ibilities later in addressing the jurisprudence regarding security clearances,
Adopting the Bell Canada, supra, approach, including the subsequent cases noted,
does;
not
support the union's position in this grievance for the
following reasons. In
the
instant case,
the nature of
the bargaining unit is unusual: this is
solely a security
unit. Its size is relatively small: ninety or so positions. Further, the special
Cons;tables
and dispatchers have
always been subjected to "refresher,,clearances at
defined
intervals' Apart from all other considerations, which
will be
dealt
with infra,
fewer than twenty bargaining unit members are
cp0's. Apart from the cpo,s,
Special
constables, dispatchers and pEo's fwhich also are
subject
to
cplc
clearance), there are only a handful of
clerical or administrative positions. And
those jobs have qualifications quite distinct from those relevant to the CplC cleared
jobs' These
two factors - the basic nature of the bargaining unit and
its size
-
seriously impinge on the options for reassigning a CPo
who fails
security clearance
to another position. This is
not a
broad "all employees
unit" that might afford more
scope
for placing the employee elsewhere.
The cases
acknowledge that the employer need not "create,, a position or
continuously find a
mix of duties
to occupy the employee, at least
for more than a
brief period of time [CiW of
Hamilton. supraJ. In the instant case,
the loss of CplC
clearilnce is for an
indefinite
period. The
individual faces
real challenges in
resolving the issues
that resulted in the
failure to pass the
refresher CplC
review, in
large part because TPS
refuses to indicate the reasons
for the
failure. There
is
only
one
instance where an employee, after strenuous efforts over a
lengthy period, was
able
to learn of the reasons: as indicated earlier, the decision
to pull CPIC
clearance
49
was
not frivolous. Thus,
the indefinite nature and potential duration of
the ..loss,,of
CPI|I clearance also undermine the union's assertion that those employees who
failed the "refresher" clearance be
retained. This
situation resembles those cases
wherrein the lengthy suspension [albeit for quite different reasonsJ mitigated against
conl-inuation of employment fTown of
Innisfil. supra; CiW
of Brockville. supra; and,
giUpf-Hamreql, sup
ra).
A closer
approximation to context of
this grievance is
the
line of cases dealing
with
security clearances.
one case
cited by
the union was
the Municipality of
Metropolitan Toronto. supra. As
noted,
the
arbitrator ultimately held that, although security checks might not be
unreasonable in principle, the specific process did not provide a
mechanism for
reviewing the security assessment. As
the case
is
distinguishable in several
respr3cts, I
need not comment on
the merits of
the decision.
First, the arrangement between the Municipality and the police was not reduced to
writing setting out
their respective obligations and
rights. That is
in sharp contrast
to thrs
instant facts wherein the relationship between TCHC and
the Toronto police
Services
Board
with respect to the Special Constable
program is
the subject of a
lengthy
documenf dating from 2000 and amend ed
in 2002 reflecting the change in
the employer to TCHC
from its predecessor, Noteworthy is a stipulation that, in case
of a brreach
by TCHC
that is
not promptly remedied to the satisfaction of
the Board,
the
appointment of Special constables, individually or collectively, may be
suspended or terminated. Further, the Board may terminate the
Agreement in its
entirr:ty' As well, applicants for Special Constable positions must pass all screening
tests [including "refreshers" scheduled at specified
intervals): if the
results are
unsatisfactory to the Board
in its "sole and
unfettered discretion", the individual will
not bre apipointed. Apart from this documen! there is also
the written agreement
with the Board,
initiated in 2005, granting TCHC
direct access to CPIC,
though its
own in house CPIC
computer terminal. And, there is the 2007 formal Memorandum
of unrlerstanding between the RCMP
and TCHC regarding
cplc access. In
50
accordance with these agreements, there is the GPIC
Manual governing the usage
anclprotocols of
the CPIC
system. Thus, there is extensive documentation to the
efferct
that TCHC
is responsible for ensuring the security of
the cplc information and
for the conducting of
background checks by TpS
for cpo,s, Special constables,
dispatchers, PEo's and relevant management staff. Dispatchers are also subiect to
an aLdditional background check by
the Opp.
The second reason the award is
distinguishable reflects the passage of time: the
decision is over
twenty years old. As
in
the "alcohol" cases,
the landscape regarding
secuLrity and
security checks has
shifted markedly in the
interim. Thus,
while the
arbitrator therein did comment that the employer could not "delegate its managerial
functions to a third party and not be accountable for the actions of
that other party,,,
those
words cannot be divorced from the context and are
not applicable herein.
Much more recent is the Zhangcase, supra. That decision, as
well, is
not helpful. As
the aLrbitrator expressly stated, the grievor's enhanced reliability status had
not
been revoked, although her higher levels of security clearance had been
withdrawn
or not granted. It was solely on this basis
that the
arbitrator imposed a
duty to
search
for alternate positions, as
mandated by
the employer's written personnel
Secu.rity
Standard' There is
no
comparable obligation on TCHC
in the collective
agreement or elsewhere,
of the employer's cases,
the
city of Moncton. supra, is
likewise readily
distinguishable' The grievor's position involved direct access
to CplC
(and pIRSJ:
she r'vould be able to add
or delete
information and
would have complete knowledge
of
ongoing investigations and
files. That is
not the situation herein where, apart
from dispatchers, the other security officers do
not have
direct access
to the CplC
databrase. Also, and of significance, is
that the RCMP
in Moncton. supra, although
solell' responsible for the decision to grant or
withdraw clearance,
did disclose the
reasons that the
grievor failed the security check, As
noted, TPS
refuses to reveal
the basis
for its decisions regarding CplC checks.
51
Therre is
nothing in the analysis in Ontario Iockey_.C]rrb, supra,
with which I disagree.
But,
the decision is of assistance only insofar that there must be
recognition of the
nature of
the business conducted by the employer, a
factor that is
also accepted in
the "alcohol" cases.
The GTAA decision, supra, is more helpful. The suspensions, and then dismissals,
were non-disciplinary in nature as
there were no allegations of wrongdoing or
misr:onduct in the workplace. The
security checks were conducted by an
outside
bod'[ ['l'ransport canadal on
hiring and at regular intervals. As
well, the employer,s
polir:iesr were
stricter than the minimum standards set
by
Transport Canada in
that
the employer required all employees to continue to retain security clearance as a
condition of employment regardless of
whether their jobs needed
restricted areas
access passes. The
arbitrator accepted that the proposition tha! without knowing
the reas;on
for the
initial suspension of
security clearance,
it was
not unreasonable
for tlhe
employer to "determine that the potential risk to
its operation outweighed
the grievors' interest in continuing to
work", Following the
final decision to revoke
clearance, the union agreed
that the grievors could not continue in the specific
position but asserted that they could have been assigned
to other work and
the
employer's rule was
unreasonable. That contention was
rejected by the
arbitrator
who regarded the situation as
akin to
the revocation of a licence by
third party
licencing organizations or other professional governing bodies:
security clearance
was a reasonable condition of
employment.
There are certainly differences between the
matter before me and
the context in
whicih thLe
GTAA
decision arose. There is no doubt that the potential threat to
airport security, public safety and the consequent economic impact of a terrorist
attaclk is far more stark and on a broader scale. Nonetheless, I
accept
the reasoning
in GTAA supra, as of assistance. The comments regarding stricter standards, the
weighing of potential risks in the absence of
knowledge about the basis
for the loss
of
security clearance, non-disciplinary dismissals, and the analogy to
third party
certifical-ion are all apposite herein.
52
I
wculd also emphasize that my comments with respect to the
applicability of the
decisions relied upon by the
parties is
by no means a
criticism. It is
simply that the
arbitral jurisprudence is
rather scanty with respect to security clearances conducted
by outside bodies, such as
law enforcement agencies. It fell to
the parties to argue
by arnalogy and to
refer to cases
that they acknowledged were not,,on all
fours,,with
the
instant grievance. That they did, and I do appreciate their submissions.
The factual setting in KVP' supra, is far
removed from the instant case. The analysis
contained therein regarding the factors relevant to an assessment of a
workplace
rule promulgated unilaterally by
the employer, nevertheless, has
withstood the test
of
time and
continues to resonate in the jurisprudence. To recap,
the factors consist
of the
following: the rule must not be
inconsistent with the collective agreemenu not
be
unreasonable; be clear and unequivocal; be
brought to
the
attention of
the
employee affected before being acted upon, including that breach could result in
discharge; and, have been consistently enforced.
What
triggered the instant grievance was the
institution of a
rule that the securit,z
officr:rs must
maintain CPIC
clearance as a
condition of
employment. The
thrust of
the union's representations was that the employer's rule was unreasonable in
several respects. The
rule did not distinguish between direct and
indirect access
to
CPIC
and exceeded the required standards for safeguarding CPIC
information. The
rule rryas
not consistent with progressive discipline or just cause,
and
the employee
may fail the clearance check
without having engaged
in any culpable conduct. The
rule did not
appropriately balance the employee's interest in
retaining his/her job
with the employer's interest in the
vulnerability of the tenant population. The
employer could have
implemented the union's suggestions and conducted a pilot
program to demonstrate that dismissal from employment was not a
necessary
consequence of losing CPIC
clearance,
particularly since the
volume of CplC checks
had
declined over the years.
53
The
union's representative vigorously argued for retention within the bargaining
unit of those security officers short of discharge and,
in the
alternative, that TCHc be
directed to use its "best efforts" to place the individuals in suitable, equivalen!
positions elsewhere in
the employer,s organization. With respec! I cannot agree
with those submissions. It is
to my analysis that I
next
turn. In this section, I do
not
intend to repeat the comments already made
in discussing the case
law, Rather, my
focus is on
the evaluation of
the employer's rule, or policy, within the framework of
KVP,
supra. The
terms "rule" and'policy,,are used
interchangeably.
The
reference in KVP' supra, that the
rule be
clear and unequivocal is
decidedly met:
continued GPIC
clearance is a condition of
employment. Likewise, the rule has been
brought to the attention of
the employees before the employer can act on
the rule,
including that breach could result in discharge. This is a policy grievance: the
individuals who failed CPIC
were terminated, with severance,
if contract employees,
and placed elsewhere
within TCHC,
if permanent. As the rule has just been imposed,
the question of
consistent enforcement is
moot.
The
first factor listed in KVP. supra, is consistency
with the collective agreement.
The
collective agreement before me is
silent with regard to the
implications of
failing a "refresher" CPIC
check, apart from the Letter of Understanding addressing
Special Constable re-qualification. That Letter indicates that the Special Constable
shall continue to be paid the Special Constable premium until a final decision is
made by the Toronto Police Services Board. The
implication is that, thereafter, if the
final decision is negative, the individual will no
longer continue in
that role unless,
and
until, the issfres are
resolved. There is
nothing in the collective agreement as to
the
continuation of
other security officers in
their posts who
fail CplC ',refresher,,
clearance.
The managemen
exercised in a fai
applied under th
KVP,
supra.
rights clause does
contain the caveat
that its functions
will be
and reasonable manner. Thus,
that is the
appropriate test to be
collective agreement and is also
another factor expressly noted in
Should
it be
maintained as
must be an
This is a securi
out
their duti
encompass S
that the distin
the context of
Certainly, the d
officers are giv
accurate to no
officials, disti
reading of
that
in the scope of
t
recognized that
communicated
is overheard by
security officer
response
to a C
serves
to unde
control and reta
information and
information m
avoid.
54
uded that the emproyer's decision to require cprc clearance be
condition of emproyment is
reasonabre? In my
view, the question
d
in the affirmative.
unit in which all security officers have access
to
cplc in carrying
For convenience, I am using the generic term "security officers,, to
ial constables, cPo's, pEo's and dispatchers. I
am not persuaded
ion between "direct" and "indirect" access
to
cplc is
meaningful in
e
nature of
the bargaining unit and the emproyer's operations.
patchers have direct access
to the
cplc database. And, the security
the information derived from cplc by
the dispatchers. It is also
that the GPIC Manuar, and
the letters from the RCMP and
cprc
ish
between "direct" and "indirect" access. However, a carefur
ocumentation makes clear
that the rationale for
that distinction lies
e employer's obligation to safeguard cprc information. It is
e
employer cannot be
held liable where cplc information being
a
security officer is
intercepted by an
individual using a scanner or
suspect in custody in circumstances where it is
not possible for the
maintain control of the suspect and
simultaneously receive a
check outside the suspect's hearing. But,
to state these examples
re
the great gulf between those situations outside the employer,s
ing security officers, trained in the codes used to convey
cplc
ho have
failed CPIC
clearance, in positions where CplC
be
overheard. Those
latter situations, the employer is
able
to
The
union did prppose several solutions aimed at keeping the security officers who
failed the "refresher" clearance in their positions. It is not necessary
to reiterate
those suggestionp in detail, What is
significant is that the employer did carefully
review those proposals: Boyce-Richard prepared a report analyzing each as
to its
impact of
operations. That assessment has been recounted at some
length. She
55
concluded tha{ TCHC
could not guarantee the integrity of the
cplc information
if
those security pnicers remained in the cSU. The
options were operationaily
unworkable.
fhe test is the reasonableness of
the employer,s policy. In
this
instance, not oirlv is the policy manifestly reasonable, I concur with the assessment
of
the options $roposed.
The use of
radif communication is more efficient and convenient than a cell
phone
as
the primary lneans of
contact. It would be
difficult for dispatchers to
monitor two
radio bands sin[ultaneously. The
separation of
security officers where the CplC
cleared officer was communicating with the dispatcher could not be
adequately
monitored' Thg
likelihood of a
negative impact on
the working relationship of the
two "classes" of security officers, based on
whether or not
they were CplC cleared, is
highly
probable. More critically, the
security officer working alone could nor access
cPIC
information about a
suspec! thereby placing the officer at
risk while another
officer who was cleared came on
the scene
to take over.
The
security offlcers work in high-risk areas and
the
tenant population is
vulnerable, for t[re reasons set out
earlier. It is
not feasible for the employer to
conduct an
independent vulnerable sector screening, criminal records check,
or
other such
inveltigation, in an
effort to ascertain the
risk posed by
retaining a
non-
CPIC
cleared seclurity officer. Those checks had
already been
conducted by TpS and,
moreover, the erirPloyer's checks could only rule out certain possible reasons for the
failed clearance. The
employer could not learn of other concerns of TpS
that led
to
the decision to qlithdraw CpIC
clearance.
The
union suggefted a pilot project to make sure
that
cplc integrity was
not
compromised. to ensure an
impartial assessment of
this proposal, TCHC
retained
an outside consultant, Asbury, to evaluate that
possibility. Asbury's qualifications
and experience, i]ncluding that
with TCHC [or its predecessor], are
extensive. She
concluded that a pilot project was
technically feasible, albeit difficult to construc!
time-consuming
flnd costly. But, she
recommended against a pilot projecf outlining
the reasons
for t$at determination. Skelton, as
head of the CSU,
considered Asbury,s
report in its e
and
the recom
possible impa
Special Consta
be
characteriz
proposals: that
One
difficulty i
the
number of
if some securi
not agree
with
tipping
point
and
viability of
Asbury in her
It is also
impo
questions of
conceded
that
employment at
not
similarly be
same
calculus:
t
exposed
to CPIC
the
union's co
culpability of th
failure to clear C
That,
nonethless
between TCHC
TCHC
and, more
compliance with
no evidence of a
Special Constab
56
tirety, noting the risks, complexities and potential liabilities specified,
ndation against a pilot project. Also considered by skelton was the
on
the relationship with TpS as the sponsoring organization for the
le program' Again, this process undertaken by the employer cannot
d as
unreasonabre. In
the end, TCHC
did not accept the union,s
is not the same as a
failure to consider those options.
herent in the union's proposals is that this approach does
not
limit
rity officers who fail cplc clearance who are
to be
retainea. Erren
officers could be
kept on
in some capacity
within the
csu fand I do
t possibility in the circumstancesJ, there would inevitablv be a
ed
that irreparably undermined the efficiency of
the operation
e
special constable program. That prospect was also cited bv
port and is
compelling.
nt to step back
from the minutiae of
the union's suggestions and
rational feasibility and focus on
the broader picture. First,
it is
ring a
cPIC
background check is a
legitimate condition of
me of
hire. That begs the question as to why such clearance would
uired to be
maintained as a condition of
employment. It is
the
e clearance is
not a formality but intended to ensure that those
information satisfy certain standards of
reliability. I am
sensitive to
rn that GPIC
clearance may be
lost
for reasons other than the
individual employee. And,
it is troubring that the reasons for the
IC
are
not disclosed by Tps to the individuar or to the employer.
is
the nature of the relationship between TCHC
and TpS,
and
d the RCMP,
and
is integral to the continuation of
cplc access
bv
nerally, to the Special Constable
program. The
employer,s
the GPIC
Manual is
monitored and
audits are conducted. There is
explicit statement that cPIC access
would be ended
and/or the
program terminated if rcHC retained securiw officers who
lost
57
CPIC
clearance in the CSU. But,
it would be
disingenuous to assert that such
bluntness is critical to conveying the intended message. As Boyce-Richard testified,
the concern ofTPS that "refresher" checks be
conducted on current personnel was
expressed as a "very strong recommendation". Not unreasonably, she
felt it was
important to comply and have the clearance checks updated, in
view of
the
information shared between TCHC
and TpS.
The consequence of the loss of
security clearance in
the instant case is a
non-
dis
cipli
nary termination : see,
generally, GTAA.
supra; Zhang,supra; Sensenbrenner
Hospital, supra; and,
ontario Jockey club, supra. As
the union stressed,
this
approach does
not reflect progressive discipline but that concept is
simply not
appropriate in these circumstances: the dismissal flows from the
inability to
maintain a qualification needed to properly fulfill the duties of the position, nor
wrongdoing or misconduct.
Another'big picture" issue is
that of
the place of CPIC
in the employer's operations.
There can be
no question that CPIC access
is an
important tool in securing the safety
of the
tenant population and of
the security officers themselves in dealing
with
incidents. If the tool is
important to the employer's operation, the
volume of CplC
requests, measured on a daily basis, cannot be
determinative, It is
accurate to note
that the
number of CPIC
requests has
declined over the past several years. There is
no guarantee that level
will continue to decline; indeed, the
latest figures reveal an
increase
in the numbers.
As
well,
it is legitimate for TCHC
to conduct a strategic risk assessment
rather than
simply focus on
the operational level. Asbury's testimony is quite precise in
this
regards. Absent knowledge of
the reasons for the loss of CIC clearance, TCHC
cannot
mitigate the risks associated with the retention of those security
officers. The
strategic
risks encompass residents, staff,
visitors, corporate information and
corporate
image. Inevitably, there would be an
erosion of the employer's trust in
those employees to carry out their duties. Although the degree
of risk might be
small
in a statistical sense,
the consequences of
disclosure of CPIC
information could
5B
well be
serious, even catastrophic. The CPIC
documentation makes
it clear that the
employer's policies must conform to CPIC
standards at a
minimum but may be
more
restrictive. The mere fact that TCHC
standards exceed those of CplC is
not
determinative provided that the more restrictive measures are reasonable in the
context of the employer's operations: again, see GTAA,
supra. The overarching
obligation on TCHC is
to ensure the safeguarding of
the CplC data and the head of
the approved agency is "urtimately fully responsible,, for the adherence to the
policies and procedures protecting CPIC. Skelton testified, as then head of the
agency,
that TCHC
was not prepared to assume
the
risks and
liabilities associated
with retaining an employee in a position of trust who could no longer have access
to
GPIC
information. That is
not an
unreasonable position.
Another measure of the reasonableness of the TCHC policy is its consistency, or
otherwise,
with the approach taken by
similar organizations to the consequences of
the loss of
security clearance. TCHC
did contact other agencies,
including the TTC,
TPS, the OPP, and the University of
Toronto Security. Their responses were in line
with TCHC's
decision. I
hasten to add that this factor is
not dispositive and one
cannot
ignore the
specific context of TCHC's policy but is,
nevertheless, a
useful
comparator' Certainly, if TCHC's
approach was
wildly out of line
with those
other
organizations, concerns about the reasonableness of
its policy might well be
raised.
Pursuant to the criteria enunciated in KVP,
supra, I have
scrutinized the employer,s
policy in light of
the wording of the collective agreement and the
surrounding
circumstances,
including the proposals of the union. The essential factor
in KVp.
supra,
relevant at this juncture is the reasonableness of the rule and
its consistency
with the collective agreement. That agreement, in the management
rights clause,
obliges TCHC to exercise
its functions in a "fair and reasonable
manner". I have
already determined that the impugned policy is reasonable. It might be
suggested
that, in the
abstrac! "fairness",like beauty,lies in the eyes of the
beholder. In the
context of the collective agreemenf the
term connotes
rational grounds for the
policy and
meaningful consideration of any alternatives proposed. I am
satisfied
59
that the basis for tlhe
policy at issue herein is
rationally related to the employer,s
operations and TC.HC,
in fact, has
carefully assessed
the union,s proposed
alternatives' Therefore, it must be concluded that TCHC has
fulfilled its obligation
under the collective agreement.
Thus' for the reasolns given, I am
satisfied that the decision of
rcHC to impose, as a
condition of emplo'yment at
time of hire and thereafter, the maintenance of
cplc
clearance should btl upheld' There is nothing in the collective agreement that would
impose an obligatiorn on TCHC
to retain, in the csu, security officers who have failed
CPIC
clearance as a consequence of a "refresher" check. It was
fortuitous that, with
respect to the
four permanent employees who lost clearance, it was possible to find
alternative positions in another bargaining unit. However, there is no
contractual
obligation on TCHG
to use
its "best efforts" to place such
personnel elsewhere in the
employer's organizettion, outside the CSU
bargaining unit. This is
not akin to the
cases,
adverted to earlier, where the bargaining unit in question included a range of
classifications and
positions that the individual might be qualified to perform for the
duration of
his/her lloss of ricence or certification.
Accordingly, the griervance is
hereby dismissed.
DATED
this November 13,20IZ
1f'J_
Susan
Tacon, Sole
Arbitrator