by Suzanne Gammon
The WN Police Services Board has thrown a monkey wrench into the town’s plan to transition from a municipal police force to the Ontario Provincial Police (OPP) by this Fall, petitioning the Ontario Superior Court of Justice (Divisional Court) for a stay that will keep the town from implementing its decision until it can be reviewed fully by three judges in October.
While town council, in a 6-2 vote December 5, resolved to replace the WN Police Service with the OPP, the WN Police Services Board loudly opposed the decision, saying it was made too hastily without fully assessing the impact or properly consulting the population or the Board itself. As the town moved forward with its transition plan, the Police Board initiated a request for a Judicial Review of the by-law adopted Dec. 5, with the goal of quashing it. However, the court could not hear the case until October of this year, and in an effort to ensure the town could not proceed with its plans in the interim, the Board asked the court to issue a stay, making the by-law unenforceable until a final court ruling.
On July 12, Justice Alexander David Kurke of the Ontario Superior Court of Justice (Divisional) in Sudbury heard the case, and reluctantly imposed the stay. He made it clear he was “unwilling and unhappy about it” as he felt the Board’s case was weak, but specified that he had to follow Ontario case law, which does not require strong arguments in favour of a stay.
Justice Kurke began by stressing that he was not ruling on whether the by-law should be quashed, an issue set to be decided in October in the Judicial Review, but only whether a stay should be granted in the interim. In making that determination, he needed only decide if the complainant’s issues were serious enough to warrant being tried.
The Board’s lawyer, Joël Dubois of Perley-Robertson, Hill & McDougall LLP/s.r.l. of Ottawa, argued that there was a breach in procedural fairness in the way the town came to its decision, thus making that decision invalid. He specified that he was not questioning the town’s authority to choose its police force, saying “the town is clearly entitled to do so,” but stressed that “what we are challenging is the process” used.
Dubois relied on affidavits from Police Services Board Chair Barry Bertrand, former Police Chief Chuck Seguin and former town councillor Lise Sénécal to highlight the differences between this OPP costing process and the last two costings in 1998-99 and 2012-13. Sénécal, who was a member of the Transition Board during the municipal amalgamation in 1998-99, recalled that several meetings were held in all of the communities and a decision was put off until the new council was formed. “The process was open and transparent, involving active consultation at all stages,” reads her affidavit, adding that she was surprised to find the current process involved a “single public meeting” with limited information provided only in English, thus ignoring the 62% of the population whose first language is French. She said she and others raised concerns about the accuracy of the financial analysis and “lack of clarity” in the presentation, and she proceeded to organize a petition, signed by 1,504 people, asking for the issue to be decided in a referendum. In her opinion, it was “apparent that the vast majority of the Council had no intention of seriously considering the questions and concerns posed by the petition,” and had already made up their mind.
Seguin made a similar comparison to the 2012-13 process, which he took part in, saying the town had then adhered to recognized guidelines by forming a Steering Committee comprised of himself, the Board chair, municipal representatives and staff to oversee the costing process. Such a committee was not formed this time, and he deplored that he and the Board were not consulted during the process. He also highlighted that three public meetings were held, in Verner, Field and Sturgeon Falls in June 2013, while only one was held in Sturgeon Falls in November 2017. “At no time was there any dialogue between the Municipality and either myself or the Board in relation to the 2016/2017 OPP costing process,” reads his affidavit.
Bertrand made similar arguments, adding the only time he was allowed to speak on the matter was after requesting a delegation at council and being provided 15 minutes to present – the very evening council voted on the policing contract. He used the time to present a poll the Board had commissioned, which he said showed “the community required additional information and time to consider this important decision. Unfortunately, Council decided to ignore the poll.”
Bertrand noted that Councillors Jamie Restoule and Yvon Duhaime along with Mayor Joanne Savage raised concerns about the decision being rushed, but their pleas fell on deaf ears.
The Board lawyer suggested the two prior costings had created a “legitimate expectation” that past practice would be followed again and there would be more consultation prior to a decision “that represents a very fundamental change… (with) profound consequences.”
Moreover, Bertrand suggested that some councillors may have been motivated by animosity toward Chief Seguin, particularly former Board members Guilles Tessier and Norm Roberge who arrived at the Feb. 6, 2017 meeting of the Board “with a pre-typed draft motion” to not renew the Chief’s contract. That motion was adopted, then later reversed after the two were replaced on the Board. “Councillor Tessier was aware of the fact that if severance had to be paid to the Chief upon disbandment of the Service, this would increase the cost of disbandment, making cost savings less likely and, accordingly, that there may be less appetite to move forward with the OPP,” reads Bertrand’s affidavit.
Similarly, he said the two councillors were livid when the police Inspector’s contract was authorized to be signed on January 18, 2017, then because of a “clerical error” that had seen his severance provisions “accidentally deleted” from the contract, the document was brought back by the Chief to be amended on January 24, 2017. According to Bertrand, “allegations of bad faith were made against the Chief and the Inspector by Councillors Tessier and Roberge. Councillor Tessier went as far as stating, on more than one occasion, that he “wanted to shoot the Chief”,” reads the affidavit. He said their anger showed bias in favour of the OPP, as they feared severance provisions in the Inspector’s contract would add cost to a transition and make it less likely the town would choose the OPP.
Dubois also accused the prevailing council members of using “tactics of bullying and intimidation” by trying to silence opposing councillor Yvon Duhaime when he spoke in favour of the petitioners’ request for a referendum, and further by refusing to pay the Police Board’s legal fees for the Judicial Review application.
Justice Kruke poked at the Board’s arguments, wondering if the past costings also served to inform the current decision, thus necessitating less effort this time around. Dubois argued that the 2017 costing was “not a continuation” of the last exercise, as the community, council, board members and OPP funding formula had all changed. “Have you been to Sturgeon Falls?” rebuffed the judge, saying the make-up of the community could not have changed much in four years, nor could its perception of the OPP from 2012 to 2017.
The judge also inquired whether the past process had been conducted in both English and French, and the lawyer had “no evidence of a bilingual process” in the past. Still, while the judge acknowledged there was no legal requirement for the process to be conducted in both languages, he noted this concern should not be taken lightly as the town did have a bilingual service policy.
Justice Kurke reminded Dubois that elected councils have the authority to make decisions, even unpopular and costly ones, on behalf of those who elected them. He gave the example of Sudbury deciding to replace its arena and create a new development in the downtown core, saying “lots of people don’t agree, people have lots of opinions on things but (…) isn’t that why they elect councillors?”
The judge also questioned whether the last process was really more fair, noting that the 2012-13 process lasted 20 days from reception of the OPP proposal to a final decision, and this one lasted 21 days. When Dubois interjected that the Steering Committee had been formed well beforehand to involve the stakeholders, Justice Kruke noted that they had only met twice and later added the committee “appears to have served little purpose.”
When Dubois argued that there was “community expectation” of wider consultation, the judge questioned how the board could be speaking for the community at large. “The board’s the only party here. Is it just the Board Chair’s expectations we have to be concerned with here?” Dubois pointed to Séguin and Sénécal’s testimony. “So three people,” retorted the judge. “How is that “community expectation? (…) I understand the Chair and the Chief feel aggrieved. (…) I get it, but (…) should the process be ramped up because these two people feel this way?”
The lawyer responded that over 1,500 people had signed the petition for a referendum. “The petition expresses concern and frustration. It expresses that people want to have a say, they want answers,” he argued. The judge was not convinced, saying he had read the petition warning of “financial doom” and painting the decision only in a bad light, and “people who just have those words on that page” would be easily convinced to sign. He offered the same analysis of the Board’s poll, saying “polls are notoriously inexact” with the wording of questions and headings likely to influence answers. “You can’t base decisions on a poll.”
Dubois added that the Board was bringing forward “issues of importance to the entire community”, that it had “no pecuniary interest in the outcome” and that it “just wants fairness.” The judge questioned the assertion. “If the community felt so bad, why isn’t there a community member here?” he asked, adding “they can complain… on behalf of everybody?” The lawyer responded that his client was “taking this action to protect the public interest.”
Justice Kruke also noted that the Board was not speaking for the officers of the service, as an affidavit from the chair of the officers’ union, the WN Police Association, indicated they were in favour of the transition. “I don’t know if he can speak for everyone,” responded the Board’s lawyer.
The lawyer argued the Board would suffer “irreparable damage” if the stay was not granted, as the town would move forward and the service would likely be disbanded before the Judicial Review process. “You’re affected in a way that is frankly insignificant in the grand scheme of things,” said the judge, citing the “hurt feelings of the board” as trivial. Dubois said it was more serious than that, as “the board, my client, ceases to exist” if the service is dissolved.
Municipality defends its position
The lawyer for the municipality, Michael Sirdevan of Russell, Christie, LLP in Ottawa, advanced that the unelected Police Board was overstepping its mandate in questioning the decision of an elected council. When the judge reminded him that the Board does have the ability to sue, he stressed that any legal action undertaken “must be in furtherance of its mandate” which is simply to provide adequate and effective policing services, not to supplant council’s authority. He added that the Board is not recognized as a “person in law” under the Municipal Act or the Police Services Act.
Sirdevan argued that the 2012-13 and the 2017-18 costings followed a “very similar overall timeframe” and that the municipality, the WN Police and the OPP “exchanged information throughout the process.” He further said that while there were three meetings last time, this time the one public meeting was broadcast on cable TV and online and the public was given an opportunity to ask questions and provide comments online and through social media, something which was not available in 2013. Finally, he stated that the 2012-13 Steering Committee was only formed to create a frame of reference for the costing, not to consult. “Once the costing came in, that’s when the consultation began” both times, he noted.
Sirdevan said the questions posed by the public were mainly about cost and level of service, with no questions about Aboriginal issues or Francophone services, and therefore “don’t reflect this concern” contrary to Mrs. Sénécal’s affidavit. When the judge asked if this could not be inferred from the petition and the poll, he responded that the information on the petition sheet equated to fear-mongering to get signatures. “If that was the only information I had, I’d sign it too,” he stated. As for the poll, he pointed to leading language there as well. “The Board phrased the questions asked,” he said, suggesting the results were unreliable.
Sirdevan also spoke to the reticence of the Police Board in even entertaining a costing, much less participating in the process. He said a letter dated May 23, 2017 from Barry Bertrand reacts to council resolving to enter into a costing process, but does not ask to be involved in the process. “He says “this board does not support the process”… “we are providing good value”…” noted Sirdevan. “It says “we’re doing a good job, leave us alone.” (…) This speaks to motivation,” added the lawyer, pointing out that this was six months before the OPP proposal was received.
Sirdevan added that no one requested a referendum at the outset of the process, only after the decision, and “the Municipal Elections Act made that impossible” due to timing.
The judge asked what would happen if the stay were granted and this delayed the transition process. Sirdevan explained that the Ontario Civilian Police Commission (OCPC) must rule on the municipality’s application to have the WN Police Service disbanded before they can move forward, and a stay might halt that process. He further stated that the OPP proposal had a 6-month expiry, and if the transition did not occur by October for OPP training purposes, this would push it back to at least February of next year, perhaps longer.
“We’re back at square one,” he stated. The town argued that delaying the transition by one year would cost the municipality $800,000 in unrealized savings based on their projections. Those figures were disputed by the Board’s lawyer, but the judge gave no opinion on this.
Judge grants stay despite weak case
Justice Kurke felt the Board’s case was weak and predicted a loss in October, saying “I expect the Divisional Court will not be satisfied that the by-law should be quashed.” However, he stressed that the test applied to decide on a stay is much lower, the first criteria being only that the Board’s action is not “frivolous or vexatious.”
“Do the claims have merit, not really, but I’m having trouble saying they’re frivolous,” he stated. He largely agreed that “this was not a sudden or hasty decision made by council”, but said “questions remain about whether the requirements of procedural fairness were met.”
The second criteria is whether the decision will cause “irreparable harm.” The Board’s argument that it would cease to exist and therefore not be able to be heard in October swayed the judge, who also noted that if the transition moved forward with jobs terminated, equipment sold and so on, this would be irreversible. “These consequences constitute irreparable harm,” he concluded.
The final criteria, the “balance of inconvenience”, saw him struggle as he acknowledged both sides would suffer “equal harm” and “the harm to both is substantial in this case.” He noted the dissolution of the board before it had an opportunity to be heard would be unfair; however the town faced a large monetary loss and a stay “may set back the process to the beginning.”
The three criteria forced him to find in the Board’s favour and grant the stay reluctantly, but he imposed four conditions to try to mitigate the damage. First, he stressed that the by-law, while it cannot be implemented until a Divisional Court ruling in October, remains in force. Second, he strongly encouraged the OCPC to continue its assessment of the town’s application. Thirdly, he recommended the application be complete by the October sitting of the Divisional Court, so that the transition can move forward immediately after a ruling. Finally, he ordered that the matter be heard on October 9 at the latest.
Who will pay?
The judge did not have time to consider the Municipality’s application to have the Police Board members declared personally liable for the cost of the Judicial Review, a matter the two sides have said they will try to resolve amongst themselves, but may return to the judge to determine.
A July 5 memo from town treasurer Alisa Craddock to council shows the Police Board resolved to shift funds from other departments to cover legal fees, and saying council could accept or decline this transfer of funds. She noted the Board wanted to transfer $72,000 from salaries, $10,000 from work clothes and safety, $7,000 from training, $10,000 from equipment purchases, $6,000 from equipment repairs and maintenance and $5,000 from operating expenses, for a total of $110,000 to “Board legal expenses.”
“The question of the Board’s ability to transfer funds from operating to Board expenditures has become part of the ongoing Judicial Review process and will be heard by the Court on July 12,” Craddock wrote; however the matter was not resolved.
Affidavits filed with the court show that the municipality, which pays all expenses for the police service, received invoices for the Board’s legal fees and refused to pay them, stating there was no allocation in the budget for such fees. The town maintains that the municipality would be paying for litigation against itself, thus paying to both sue and defend itself, if the costs were allowed.
Additionally, they argue that the Board has no standing to sue the town and is being used as a “straw man” or “front man” for the real litigants in order to shield them from the cost of the action. They note that any individual “person” may apply to quash a municipal by-law, and while the Board is not recognized as a “legal person”, the Board Chair or police Chief could have applied personally for the Judicial Review. “By naming the Board as the Applicant in this proceeding, the interested parties (…) are attempting to have the Municipality fund the Board’s litigation against the Municipality and to shield themselves from liability for costs. Board Chair Bertrand and Police Chief Seguin are the true applicants in this Application,” reads the document.
They add that money should not be taken from the policing budget. “This decision would have an adverse effect on public safety as monies set aside to ensure an adequate number of police officers, adequate facilities and equipment would be inappropriately used by the Board for non-policing purposes.”
The town asked that all Board members who authorized the litigation be responsible for the costs and that they be required to post security.
The Board, for its part, argues that its mandate does give it authority to sue and that any surplus in the budget “gets moved around all the time.” It says the town’s refusal to pay is tantamount to bullying, “an attempt to derail the application (…) by saying “we’re gonna come after you”” for costs, said their lawyer. He called the Board a “public interest litigant,” fighting for the community at large.
Justice Kurke did sympathize with the town’s indignation at seeing taxpayers foot the bill for both sides of the litigation. “It is an affront to the citizens of that community to use money meant for policing to sue the municipality that put that money in,” stated the judge.
He recommended the lawyers try hard to come up with an agreement.
Up in the air
In the wake of the decision, the OCPC has not yet indicated whether it will move forward with its consideration of the town’s application to disband. “The OCPC has received submissions from the municipality of West Nipissing and the West Nipissing Police Services Board related to the court proceedings. The OCPC is expected to receive a transcript of the Judge’s oral reasons later this week. Once received, the OCPC will make a decision as to how it will proceed with the disbandment application,” wrote Communications Coordinator Silvia Cheng on Tuesday, July 17.
However the other piece of the puzzle is the Ontario Provincial Police, which has already invested time and resources in a costing process that is arguably up in the air with a Judicial Review and a municipal election both slated for October. Present in court was Sergeant Peter Marshall, Municipal Policing Contract Analyst for the OPP, who was anxious to hear the ruling and evaluate its potential impact on a transition slated for mid-October. Once the stay was imposed, Marshall expressed doubt that the OPP would proceed. He explained that the officers had submitted their applications to the OPP and they were planning to do interviews and background checks in July, then job offers and contracts in August, and finally training to ensure a start date of mid-October. “That takes a lot of time and resources,” he noted, saying the OPP may not want to risk wasting resources on a moot process. “I don’t know, I’ll have to let them know what happened here today and then we’ll see,” he advised, regretting that this will leave WN Police officers in limbo once again.
As of Tuesday of this week, the town had not heard from the OCPC or the OPP on what their course of action would be now.
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