AH618
IN THE MATTER OF AN ARBITRATION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
(the “Company”)
-and-
CANADIAN NATIONAL RAILWAYS POLICE ASSOCIATION
(the “Police Association”)
RE: CHARGE QUOTAS
SOLE ARBITRATOR: MICHEL G. PICHER
APPEARING FOR THE COMPANY:
Ross Bateman - Director, Labour Relations, Toronto
Denis Laurendeau - Manager, Labour Relations, Montreal
Stephen Covey - Chief, CN Police, Montreal
APPEARING FOR THE POLICE ASSOCIATION:
Barrie Chercover - Counsel
Karen Ensslen - Counsel
William Casner - Association President
Gerry St. George - Association Vice-President
A hearing in this matter was held in Toronto, Ontario on June 6, 2012.
AWARD
The grievance giving rise to this arbitration raises a relatively novel issue. As a means of prompting the productivity of its police force, the Company issued a directive requiring CN Police officers to issue a minimum of 45 federal and/or provincial statute charges per quarter, or a minimum of 180 warnings. The Police Association grieves that the quota policy is beyond the statutory jurisdiction of the CN Police force and that it interferes with the discretion and duties of the police officers of the force. It therefore asks that the policy be declared null and void and that all warnings and discipline taken in relation to it be removed.
I
FACTS
Certain background facts are not contentious. Railway Police constables hold their status under the Railway Safety Act, R.S.C. 1985, c. 32. Under part IV.1 of that statute a railway company may apply to the judge of a superior court for the appointment of a police constable. Both the company and the superior court judge thereafter have the power to dismiss or discharge the police constable, thereby terminating his or her powers. The relevant provisions of the Act read, in part, as follows:
PART IV.1
POLICE CONSTABLES
Appointment
44. (1) A judge of a superior court may appoint a person as a police constable for the enforcement of Part III of the Canada Transportation Act and for the enforcement of the laws of Canada or a province in so far as their enforcement relates to the protection of property owned, possessed or administered by a railway company and the protection of persons and property on that property.
Limitation
(2) The appointment may only be made on the application of a railway company that owns, possesses or administers property located within the judge’s jurisdiction.
Jurisdiction
(3) The police constable has jurisdiction on property under the administration of the railway company and in any place within 500 m of property that the railway company owns, possesses or administers.
Power to take persons before a court
(4) The police constable may take a person charged with an offence under Part III of the Canada Transportation Act, or any law referred to in subsection (1), before a court that has jurisdiction in such cases over any area where property owned, possessed or administered by the railway company is located, whether or not the person was arrested, or the offence occurred or is alleged to have occurred, within that area.
Court’s jurisdiction
(5) The court must deal with the person as though the person had been arrested, and the offence had occurred, within the area of the court’s jurisdiction, but the court may not deal with the person if the offence is alleged to have occurred outside the province in which the court is sitting.
Dismissal or discharge of police constable
(6) A superior court judge referred to in subsection (1) or the railway company may dismiss or discharge the police constable and the dismissal or discharge terminates the powers, duties and privileges conferred on the constable by this section.
.
While the immediate jurisdiction of CN Rail constables relates to Company property and areas within 500 metres of its property, constables are also peace officers for the purposes of the Criminal Code, as appears in the definition of peace officers found in section 2 of the Criminal Code of Canada (Criminal Code, R.S.C. 1985, c. C-46, s. 2). CN Police constables also exercise jurisdiction under statutes of the various provinces, save in Newfoundland, where there are no railway operations and in Quebec, where CN Police constables have no authority to enforce provincial offences. By way of example, in Nova Scotia such constables have authority in respect of all provincial statutes “… in so far as their enforcement relates to the protection of property owned or administrated by a railway company and the protection of persons on that property” (Police Act, SNS 2004, c 31, s. 42). By comparison, for example, in Ontario CN Police constables are designated as provincial offences officers under the Provincial Offences Act, R.S.O. 1990, c. P.33, s. 1 (1). They are therefore authorized to deal with offences under the Commuter Services Act, the Highway Traffic Act, the Liquor Licence Act, the Motorized Snow Vehicles Act, the Toronto Area Transit Operating Authority Act, the Trespass to Property Act as well as parking infractions which arise under municipal bylaws. As noted above, CN Police constables have no authority in respect of provincial offences in Quebec nor, it appears, do they have any such jurisdiction any longer in the province of Alberta. That, however, would not appear to limit such jurisdiction as they may have in respect of the enforcement of federal laws, and in particular laws relating to railway operations.
Bearing in mind that the genesis of the CN Police constables’ very existence is the Railway Safety Act, much of the focus of their authority and jurisdiction relates to the enforcement of safety in and around railway property, including such matters as enforcing prohibitions against trespassing. Another important dimension of their work is the protection of railway property and equipment as well as the freight which is the property of the Company’s customers.
There are a total of 73 unionized police constables in the service of the Company in Canada, variously located in all provinces except Newfoundland. From the standpoint of supervision in Quebec there is a Chief of National Operations, an Assistant Chief and two Inspectors. Additionally two Inspectors are located in Ontario as well as one in each of Manitoba, Alberta and British Columbia. There are 14 unionized constables in Quebec, 29 in Ontario, 8 in Alberta and 12 in British Columbia. Five are located in Manitoba, while New Brunswick and Saskatchewan each have two and Nova Scotia has one.
This grievance arises as the result of a directive issued by the Chief of the CN Police, Chief Stephen Covey, which issued on June 10, 2010. That directive reads as follows:
In connection with our new policy (refer to Chapter 10, Art. 10.1.11.3 of the Policy and Procedure Manual) and in order to achieve our goals associated to changing behaviours and attitudes toward safety and security on CN tracks and property, it is the responsibility of each member to issue a minimum of 45 federal and/or provincial statute charges (RSA, HTA and TPA) per quarter and/or 180 warnings. This directive comes into effect on July 1st, 2010 and applies to all constables.
In the above, the three statutes referred to are the Railway Safety Act, the Highway Traffic Act and the Trespass to Property Act.
The rationale for Chief Covey’s directive is his wish to improve the productivity of constables in the issuing of charges for statutory infractions across the system. His own empirical research raised concerns that there was an insufficient level of activity among members of the CN Police related to issues of safety under highway traffic acts and trespass statutes. That is reflected in an email which he issued to colleagues on July 19, 2010 which reads, in part, as follows:
As you know, I began sending out the weekly stats for each region to everyone. A wise (if not “old”) constable felt that the statistics, as they were being sent, were not necessarily reflective of the actual work being done out in the field and that I should re-look at the way they were being interpreted. So, in order to be fair, I recently applied a way of bringing the actual number of stats to the lowest common denominator: the constable.
I have shared this new formula with all of the Inspectors. I thought that you may be interested in consulting these before our call on Wednesday. ** Note that I did this calculation last week so they do not include this week’s numbers.**
I have taken the number of warnings given for both HTA and Trespassing in each region and divided them by 4 (keep in mind that under our new strategy, 4 warnings = 1 charge). I then added the number of HTA charges + Trespassing charges + the total number of warnings divided by 4 and came up with a total number of stats for each region. I then divided the number of stats by the number of patrollers in the region (not including a CSO if you have one – and not counting vacant positions) and came up with the number of “enforcement stats per patrol officer” average for your region.
The results are as follows:
Pacific: 1655 / 11 = 150 / member
Mountain: 722 / 6 = 120 / member
Prairie: 406 / 6 = 68 / member
Great Lakes 1547 / 23 = 67 / member
Champlain 326 / 14 = 23 / member
These numbers represent approximately ½ of the stats for 2010. According to this trend: Pacific Region members each average approx. 25 stats per month; Mountain Region members each average approx. 20 stats per month; Prairie members each average approx. 11 stats per month; GL members each average approx. 11 stats per month; and Champlain Region members each average approximately 4 stats per month.
Depending on where a constable works, they will work on average 18 (in a large detachment) to 21 (in one-person posts) shifts per month. Based on this and the above averages, only 28% of our patrol officers are giving out a minimum of 1 ticket per day worked.
I fully realize that this is only one indicator of where our resources should be located. However, it is a very important and interesting indicator of the workload of our members.
The Police Association grieved the new policy introduced by Chief Covey. Its grievance, dated June 16, 2011, includes the following statement:
The CNRPA grieves on its own behalf and on behalf of all affected members the unilateral implementation of a new performance policy, which is in violation of the collective agreement and long standing practices with respect to discipline and performance on which the Association and its members have relied. Moreover the new policy is beyond the statutory jurisdiction and purpose of the CNR Police and actually operates to restrict the CNR Police from the performance of their mandated duties, all of which relate to activity on and immediately adjacent to CNR Property. In addition the said policy is discriminatory in that it purports to govern or is applied to some but not all CNR Police. As relief, the CNRPA requests that the said policy be declared null and void and that all actions taken pursuant to the policy whether by way of oral or written warnings or discipline be suspended.
The Company maintains that the directive of the Chief is entirely proper, and in keeping with the obligation of the CN Police force to promote safety and respect for the law. The Chief’s response to the grievance, dated July 11, 2011, states, in part:
As a result, we have…. focused the attention of patrol officers on enforcement at high risk trespassing and crossing points so as to change the attitudes and behaviours of the general public who habitually break the law and place their lives and the lives of others in danger on CN property. As a result, patrol officers have been directed to conduct enforcement at high-risk areas and to give tickets to those persons who are putting their lives and the lives of CN employees, as well as CN assets at risk. Given the prevalence of trespassing and illegal behaviour in all regions of our network, we expect patrol officers to give at least one ticket per shift to persons acting illegally on CN property – for the sole purpose of changing criminal and dangerous behaviours.
As of the day of the hearing in this matter a number of constables had been disciplined for failing to meet the quota of federal and/or provincial statute charges established in the new policy. The Police Association received notice that three constables in the Champlain district would receive informal corrective actions, as communicated on July 6, 2011. After the grievance was filed three constables received 10 demerits for a second failure to meet their ticket quota and two of those three later were assessed 15 demerits for failing to reach the ticket quota a third time.
II
POLICE ASSOCIATION SUBMISSIONS
Counsel for the Police Association submits that the Chief’s directive has had a substantially negative effect on the exercise of an officer’s duties. In that regard the Police Association’s brief contains, in part, the following:
Effects of the Directive on Officer’s Duties
18. In order to comply with the new ticket quota policy established in the Directive, many CN Rail Constables have had to alter the manner in which they conduct their policing duties and exercise their discretion.
19. Constables are required by their Oath of Office to “well and truly serve our Sovereign Lady the Queen… without favor or affection, malice or will-ill” [sic] and to “cause the peace to be kept, and prevent all offences against the peace”. By the Oath, constables swear to discharge the duties of the office of Constable “to the best of [their] skill and knowledge… faithfully according to the law.”
20. CN Rail Constables must exercise discretion when enforcing the law and maintaining the peace. The Supreme Court of Canada has described the discretion of police officers as “an essential feature of the criminal justice system” and “the ability – indeed the duty – to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real-life demands of justice” (see legal argument, citing R. v. Beare, [1988] 2 S.C.R. 387 at 410 and R. v. Beaudry, [2007] 1 S.C.R. 190 at para. 37).
21. The ticket quota established by the Directive interferes with CN Rail Constables’ exercise of their statutory responsibilities to enforce the law and fetters the exercise of their discretion. Achieving the quota is onerous and has required efforts beyond normal diligence. This has caused the following two appreciable changes to how CN Rail Constables execute their duties:
a) Many Police Constables are issuing tickets, where they would otherwise exercise their discretion by issuing a warning, in order to satisfy the ticket quota established in the Directive.
i) For example, Cst. Gerry S. George is of the opinion that issuing a warning is often the best option when faced with a minor first infraction. However, in light of the new ticket quota policy, Cst. St. George feels that he can no longer use his discretion to issue warnings. Cst. St George now issues tickets instead of warnings wherever possible in order to meet his quota.
b) As a result of the ticket quota established by the Directive, CN Rail Constables are directing enforcement activities toward areas that are not “high-risk” from the perspective of the likelihood of an accident, but which provide conditions that are conducive to issuing tickets.
i) At some railway crossings, radar traps are impossible. However these crossings are dangerous and maintaining a visible presence at these locations would assist with the protection of persons and CN property. The Directive has discouraged officers from engaging in prevention/enforcement activities in such areas because it is not conducive to ticketing.
ii) In some areas, the speed limits are lower than the road conditions generally allow, and are therefore conducive to ticketing. The Directive encourages officers to target these areas, regardless of the low incidence of accidents and other safety and security problems in these areas.
iii) In some areas there are both main railway lines and spur lines. Trains regularly travel from city to city on the main lines; trains travel only occasionally on the spur lines which extend between a main railway line and a customer’s property. There are significantly fewer trains on spur lines and those trains move at signify slower speeds. As a result of the Directive, some CN Rail Constables have prioritised radar traps along spur lines as opposed to main lines because they have found that this is the best way for them to collect tickets. However, given the irregularity of trains and their slower speed, it is far less likely that there will be an accident or other safety or security issue on a spur line.
22. In fact, some officers appear to have been counselled to focus only on reaching the ticket quota, regardless of their other duties. For example, in email correspondence between Inspector Pierre Bergeron and the Chief, dated August 18, 2011, Insp. Bergeron outlined the Counselling given to Cst. Guy Corriveau in relation to the ticket quota (referred to as the “Minimum Performance Standard” or “MPS”) (emphasis added):
February 16th, 2011:
Meeting for the EPS. I told him that the focus have to be only on MPS. He said that he is involved in a lot of things given by Inspector Bergeron. But he tries to do it.
June 17th, 2011:
Meeting with Cst. Corriveau. I told him to focus only on MPS[.] I told him if he needed help to talk to me about that and my focus is to help him getting his MPS. Cst Ouellet even did patrol with him and issued a ticket.
(emphasis in the original)
23. In this email, Insp. Bergeron summarised that Cst. Renald Plamondon was similarly told on February 16th, 2011 that “the focus have to be only on MPS.”
24. In this email, Insp. Bergeron summarised that Cst. Jean-Pierre Contant was told on May 12th, 2011 that “the MPS is still the focus of the service and it should be our number [one] priority”.
25. The effect of the Directive has been particularly severe for officers in regions where CN Rail Constables have limited authority to enforce provincial offences. It is not surprising that many of the officers who were disciplined in July 2011 for failure to meet the quota – Cst. Guy Corriveau, Cst. Renald Plamondon, Cst. Jean-Pierre Contant and Cst. Ben Trudeau – work in Quebec, where CN Rail Constables do not have the statutory authority to enforce any provincial statutes.
Counsel for the Union submits that the Chief’s directive, and the grievance filed against it, raises four issues:
(1) Is the Directive void and of no force and effect because it interferes with the statutory authority of CN Rail Constables and is not authorised by law?
(2) Is the Directive void and of no force and effect because it fails to satisfy the arbitral requirements for enforcement of unilateral employer rules?
(3) Is the Directive an invalid criterion for use in employee evaluations, including the Employee Performance Scorecard?
(4) Is the Directive an invalid or unjust basis for employee discipline, including discipline through the Brown Demerit Point System and discharge?
The Police Association asserts that the ticket quota established by the Chief constitutes an unlawful interference with the statutory authority which is exercised by constables. Counsel submits that neither the Company nor the Chief have any legal authority to direct constables as to how they are to exercise their public authority in the enforcement of the law. They cannot, he argues, derive that authority merely through the employment relationship. On that basis, therefore, he submits that there is simply no management right to establish a ticket quota or to otherwise give direction to constables in the exercise of their statutory duties. Counsel submits that there is no authority, whether in statute or in common law, that would give to a private employer or its managers the powers to effectively control the use of a police force, including deadly force, or in the detention and prosecution of individuals.
Counsel submits that the constables employed by the Company are distinguishable from police constables in the service of a province or a municipality, who typically are under the direct supervision and management of a police services board. He submits that, by contrast, under the Railway Safety Act the railway police constables are hired and dismissed by a superior court judge. Moreover, he submits, even in the municipal context, it has been held that police constables are clothed with a degree of independence and are more than mere employees. In that regard reference is made to the following passage from the decision of the Supreme Court of Canada in McCleave Estate v. Moncton (City) (1902), 32 S.C.R. 106:
The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws and other similar powers and duties which police officers and constables are entrusted are derived from the law, and not from the town under which they hold their appointment. … In their enforcement, therefore, police officers act in their public capacity and not as agents or servants of the city.
To the same effect reference is made to the following passage by Lacourciere, J. in St. Catharines Police Association and Board of Commissioners for the City of St. Catharines, [1971] 1 O.R. 430 (High Ct.):
… notwithstanding that the municipality or board had the right to hire and dismiss police officers and were legally obligated to pay them, still the police officers’ duties are not those delegated by the municipality or the board but rather those specified by legislation.
The same principle is identified by counsel for the Police Association in the decision of the Judicial Committee of the Privy Council in Attorney General (NSW) v. Perpetual Trustee Co., [1955] A.C. 457:
… there is a fundamental difference between the domestic relation of servant and master and that of a holder of public office and the State which he is said to serve. The constable falls within the latter category. His authority is original not delegated and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract.
The position advanced by the Police Association is also reflected in the decision of the Supreme Court of Canada in R. v. Campbell, [1999] 1 S.C.R. 565 at paras. 27-29:
27 The Crown’s attempt to identify the RCMP with the Crown for immunity purposes misconceives the relationship between the police and the executive government when the police are engaged in law enforcement. A police officer investigating a crime is not acting as a government functionary or as an agent of anybody. He or she occupies a public office initially defined by the common law and subsequently set out in various statutes. In the case of the RCMP, one of the relevant statutes is now the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10.
28 Under the authority of that Act, it is true, RCMP officers perform a myriad of functions apart from the investigation of crimes. These include, by way of examples, purely ceremonial duties, the protection of Canadian dignitaries and foreign diplomats and activities associated with crime prevention. Some of these functions bring the RCMP into a closer relationship to the Crown than others. The Department of the Solicitor General Act, R.S.C., 1985, c. S-13, provides that the Solicitor General’s powers, duties and functions extend to matters relating to the RCMP over which Parliament has jurisdiction, and that have not been assigned to another department. Section 5 of the Royal Canadian Mounted Police Act provides for the governance of the RCMP as follows:
5. (1) The Governor in Council may appoint an officer, to be known as the Commissioner of the Royal Canadian Mounted Police, who, under the direction of the [Solicitor General], has the control and management of the Force and all matters connected therewith.
29 It is therefore possible that in one or other of its roles the RCMP could be acting in an agency relationship with the Crown. In this appeal, however, we are concerned only with the status of an RCMP officer in the course of a criminal investigation, and in that regard the police are independent of the control of the executive government. The importance of this principle, which itself underpins the rule of law, was recognized by this Court in relation to municipal forces as long ago as McCleave v. City of Moncton (1902), 32 S.C.R. 106. That was a civil case, having to do with potential municipal liability for police negligence, but in the course of his judgment Strong C.J. cited with approval the following proposition, at pp. 108-9:
Police officers can in no respect be regarded as agents or officers of the city. Their duties are of a public nature. Their appointment is devolved on cities and towns by the legislature as a convenient mode of exercising a function of government, but this does not render them liable for their unlawful or negligent acts. The detection and arrest of offenders, the preservation of the public peace, the enforcement of the laws, and other similar powers and duties with which police officers and constables are entrusted are derived from the law, and not from the city or town under which they hold their appointment.
In support of its position, the Police Association draws to the Arbitrator’s attention the following jurisprudence and authorities: McCleave Estate v. Moncton (City) (1902), 32 S.C.R. 106; St. Catharines Police Association and Board of Commissioners for the City of St Catharines, [1971] 1 O.R. 430 (High Ct.); A Reference Under the Constitutional Questions Act, [1957] O.R. 28-37 (C.A.); Attorney General (NSW) v. Perpetual Trustee Co., [1955] A.C. 457 (P.C.); R. v. Campbell, [1999] 1 S.C.R. 565; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Beaudry, [2007] 1 S.C.R. 190; Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311; Toronto Police Services Board and Toronto Police Association (2003), 75 CLAS 416 at para. 13 (McLaren); affirmed: [2004] O.J. No. 988 (Div. Ct.); R. v. Police Commissioner of the Metropolis, ex part Blackburn, [1968] All E.R. 763; Royal Commission on the Police, Final Report (London: Her Majesty’s Stationary Office, 1962) at 10-17; Philip C. Stenning, Legal Status of the Police (Ottawa: Law Reform Commission of Canada, (1981), chapters 1, 2; Regina Board of Police Commissioners v. Regina Police Association Inc., [1994] S.L.R.B.D. No. 42 (Sask. L.R.B.); Begg v. Board of Fire and Police Commissioners of the City of Park Ridge (1982), 110 Ill.App.3d 941 at p. 6; reversed: Begg v. Board of Fire and Police Commissioners of the City of Park Ridge (1984), 99 Ill. 2d 324 (Ill. Supreme Court); KVP Co. v. Lumber & Sawmill Workers’ Union, Local 2537 (Veronneau Grievance), [1965] O.L.A.A. No. 2 (Robinson); Ottawa Police Services Board and Ottawa Police Assn. (2005), 139 LAC (4th) 344 (Kirkwood); Waterloo (Regional Municipality) Police Services board v. Waterloo Regional Police Assn. (Beard Policy Grievance), [1999] OLAA No 919 (Knopf); Gravitte v. North Carolina Division of Motor Vehicles (2002), 33 Fed.Appx. 45, 2002 WL 451803 (C.A.4 (N.C.)); Canadian National Railway Company and United Transportation Union (November 4, 2003, Canadian Railway Office of Arbitration Case No. 3374) (Picher) and Toronto Police Services Board v. Toronto Police Association (2000), 62 C.L.A.S. 304 (Marcotte).
As a subsidiary argument the Police Association maintains that the ticket quota established by the Chief is an unreasonable exercise of management rights and fails to meet the standards established in the KVP Co. case.
Firstly the Police Association alleges that the target of 45 federal or provincial statute charges per quarter and/or 180 warnings is itself an arbitrary standard devoid of any compelling objective basis. Its counsel submits that the numerical target chosen by the Chief does not take into account variations in the potential issuing of tickets by shift, by season, by geographic region or any other factor which may vary as among the constables affected by the directive. In that regard the Police Association stresses the regional differences in the number of charges laid by officers, noting, for example, the performance differences as between the Pacific region and the Champlain region.
With respect to the issue of reasonableness, counsel stresses that the ticket quota has had the effect of pushing constables towards areas which are not necessarily high risk from the standpoint of safety, but where the conditions are easy for the purposes of issuing tickets. He submits that the standard established by the Chief makes no allowance for legitimate variations in the circumstances in which constables may find themselves, whether by shift, geographic region or otherwise. In that regard he contrasts the Chief’s quota system with the quota system found to be legitimate by the Illinois Supreme Court in Begg v. Board of Fire and Police Commissioners of the City of Park Ridge, cited above. In that case, for example, a 20 percent discount against one ticket per shift was applied precisely to account for circumstances such as midnight shifts and other such considerations.
Additionally, the Police Association submits that the quota is unreasonable because it is applied mechanically and without regard to the particular circumstances of the CN Police constables. In that regard reference is had to the Toronto Police Services Board v. Toronto Police Association award of Arbitrator Marcotte, cited above.
The Police Association next argues that the quota is unreasonable because it does not take into account variations in conditions and the enforcement jurisdiction of constables as those factors may vary from province to province. Counsel reviews the jurisdiction of CN Police constables in the various provinces noting, for example, the contrast between Saskatchewan and Quebec. In Saskatchewan CN Police constables are empowered to enforce all provincial statutes on and within 500 metres of the Company’s property, whereas Quebec CN Police constables have no authority to enforce provincial statutes. It appears that Alberta is now similar to Quebec: formerly in Alberta CN Police constables held appointment as special constables to enforce provincial statutes, however the authority of the Minister to appoint special constables has since been repealed. As a result, it would appear that CN Police constables do not have any authority to enforce provincial statutes in Alberta. The Police Association’s position is that the varying circumstances in the different provinces make for an uneven and ultimately unreasonable application of the Chief’s quota system.
The Police Association next challenges the lack of clarity in respect of the quota, having regard to the nature of charges which qualify. The example is given of Constable Gerry St. George who, it appears, was instructed that charges under the Criminal Code of Canada do not qualify. The Police Association relates that he was advised that constables should file 15 charges per month under part 1 of the Ontario Provincial Offences Act, when in fact the Chief’s directive speaks only to three statutes, the Railway Safety Act, the Ontario Highway Traffic Act and the Ontario Trespass to Property Act. It is not apparent, from the face of the directive, whether other offences, such as violations of the Ontario Liquor Licence Act would qualify for the purposes of the quota. It is also submitted that further confusion arises from the fact that Ontario statutes are cited as examples, without any explanations as to how statutes in other provinces might or might not be equivalent. Additionally, the Police Association submits that it is unclear as to what degree a high number of warnings can compensate for a shortfall in actual charges.
The Police Association also argues that the consequences of failing to meet the quota have not been articulated in the policy, for the understanding of employees. Counsel notes that failing to meet the quota has resulted in negative notations on a form known as the “Employee Performance Scorecard” even though the scorecard does not itself identify meeting the ticket quota as a factor for performance evaluation. Finally, counsel for the Police Association submits that the quota has not been consistently enforced. It would appear that certain constables are wholly or partially exempted from the quota by reason of their duties which, the Police Association maintains, results in an unequal and unpredictable application of the policy and an overall inconsistent enforcement.
On the foregoing basis the Police Association requests a declaration that the Chief’s directive is void and is of no force and effect. Additionally, the Police Association seeks an order rescinding any disciplinary actions taken as a result of the directive.
III
COMPANY SUBMISSIONS
The Company takes a substantially different position. It stresses, at the outset, that the CN Police budget involves expenditures in excess of 18 million dollars annually for the fundamental purpose of keeping people away from railway tracks and dangerous railway premises. Notwithstanding all efforts, the Company stresses that accidents and fatalities in connection with trespassing on railway property and infractions committed at railway crossings remain a substantial reality which must be dealt with. The Company’s representative relates that in the spring of 2010 the CN Police department developed an action plan whereby its constables across the system were to put a greater focus on the prevention of trespassing as well as crossing accidents and the general enforcement laws and regulations.
The Company notes that the Police Association was itself consulted in developing the quota policy. The Company relates that at the outset the department considered requiring constables to generate 15 tickets per month and that after consultation with the Police Association, and the suggestion made by it, it changed that standard to extend it to 45 tickets per quarter, a standard which amounts to less than one ticket per day per constable.
The Company notes as well that at the outset the Company instituted a six month grace period to allow constables to adapt to the newly established standard, with coaching and counselling being provided to constables who might have difficulty meeting the required standard. While the system came into force on July 1, 2010, the policy was not in fact enforced until the first quarter of 2011.
The Company maintains that the Minimum Performance Standard policy (MPS) does not violate any provision of the collective agreement nor does it depart from past practice with respect to discipline and the management of employee performance in a manner consistent with the jurisdiction of the CN Police department. It submits, contrary to the position of the Police Association, that the policy is in fact clearly within the standards of the KVP Co. case.
According to the Company the Police Association is unable to cite any provision of the collective agreement which is violated by the MPS. It notes that paragraph 14.2 of article 14, which governs the grievance procedure under the collective agreement, reads as follows:
14.2 Any difference between the parties arising from the interpretation, application or alleged violation of this Agreement or involving an employee’s unsettled complaint may be taken up as a grievance. Where applicable, the grievance should state the article(s) upon which it is based. The grievance must be filed in the Grievance tracking System (GTS) and presented in the following manner and sequence.
In the instant case the Company stresses that the Police Association has identified no provision of the collective agreement as being violated. The Company’s position is that it is clearly within the Company’s rights to unilaterally establish performance standards, absent any contrary provision in the collective agreement.
Nor, the Company submits, is the MPS substantially different from previous rules and policies of the Company. In that regard reference is made to rule 4.1.3 of the CN Police Policy and Procedure Manual which states:
A member of the Service is subject to disciplinary action ranging from a Corrective Interview to Dismissal when Management and/or employee efforts fail to produce an acceptable level of performance.
The Company acknowledges that what it describes as a “tiny minority” of constables encountered difficulty in meeting the performance standard of 45 tickets per quarter. Its representative stresses, however, that in those circumstances the constables were provided with individual training, counseling and coaching as to how to meet the performance standard. The Company therefore delayed to the third quarter of 2011 before using disciplinary corrective action to enforce the MPS. At that point discipline was applied only to those constables who failed to meet the standard for two consecutive quarters. In that circumstance demerits under the Brown Demerit Point System have been imposed. That, the Company argues, is consistent with the most fundamental principles of progressive discipline. In that regard reference is had to the following comment of this Arbitrator in Canadian National Railway Company and Canadian National Railway Police Association, an unreported award dated January 14, 2000:
… One of the significant features of the Brown system is that it allows an employer to impose discipline progressively, and cumulatively, by the assessment of demerits in a way that communicates to an employee the seriousness of the incident, or of successive incidents of the same or a different type, without inflicting upon the employee the financial hardship of a suspension from work. Although suspensions are sometimes resorted to under the Brown system, they generally are limited to extremely serious infractions or as a last chance alternative when the normal accumulation of demerits would otherwise result in discharge. Most significantly, under the Brown system it is not uncommon to impose demerits upon an employee for a first infraction, even where the individual has never before been disciplined. Occasionally reprimands and counseling are resorted within the Brown system. However, the assessment of demerits, generally in the range of five, ten or fifteen, is commonly, if not preponderantly, resorted to in a first infraction of some seriousness.
Nor can the Police Association argue, says the Company, that the employer is estopped from adopting the quota policy. Its representative stresses that the collective agreement contains no provision explicitly dealing with the employer’s right to establish performance standards, and it must therefore be concluded that the Company has not surrendered its right to determine standards for the performance levels. Doing so, its representative submits, it is of the essence of management’s rights under the collective agreement.
The Company submits that it has long recognized and respected the status of CN Police constables as peace officers. In that regard reference is made to subsection 1.1.4 of section 1 of the Policy and Procedure Manual of CN Police. That portion of the manual reads, in part, as follows:
1.1.4 ROLE OF A CN POLICE CONSTABLE AS A
POLICE OFFICER
By virtue of your Oath of Office, you have been employed by CN as a Constable for the preservation and maintenance of the peace within your lawful territorial jurisdiction. During your career, you may have the opportunity to accept additional and greater responsibilities, however, the authority and basic responsibilities derived from your Oath of Office will remain constant.
Your appointment as a Constable subjects your to the provisions of the Criminal Code and provides you with the status of a peace officer. This important aspect of your role in CN requires you to be thoroughly award of your legal authority and responsibilities as defined by the Criminal Code of Canada.
You may frequently receive advice in respect to your actions as a peace officer but unless directed by ranking officers of CN Police or officers of the judicial system, you must act independently while using discretion and good judgment.
The status of the peace officer provides CN and our service with a special measure of pride in the policing and protection community. This status has been accorded respect and recognition, and we count on you to help us preserve it.
While performing the powers entrusted in you, you will be required to maintain order and protect Company’s goods and property against theft, loss, sabotage, negligence, willful damage, pilferage, arson, etc.; to protect freight shipments against theft, pilferage, loss and damage; to safeguard and protect the property of employees and the traveling public.
As a member of CN Police Service, you are a CN employee subject to the directives and benefits of the Company normally administered through departmental channels and supervision. You must comply with Company policies, rules and regulations, be aware of various working agreements the Company has made with its employees, and conduct yourself in a manner as to merit respect and support.
Paragraph 3 of section 10 of the manual goes on to deal with the responsibilities of CN Police constables, in the following terms:
Responsibilities
It is the responsibility of the CN Police Service to provide a secure network free of any accidents. In doing so, CN Police Service’s key objective is to change the behaviour and attitudes of those persons who refuse to obey signs and signals at railway crossings, or do not respect safety rules and regulations on or near CN tracks and property. CN Police Service will promote education and enforcement activities in order to address safety and security behaviours. The service will prioritize these activities on a risk-based model. The Community Service Officer (CSO) will primarily focus their efforts on education based outreach programs. Members will focus their efforts on enforcement initiatives. Our ultimate goal is to eliminate accidents on our network.
As regards compliance with the KVP Co. decision, the Company notes that the generally accepted requisites for a company policy or directive are as follows:
1. 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. The 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.
In the Company’s view there is nothing inconsistent with these standards or with the collective agreement in its Minimum Performance Standard Policy. The Company’s representative also asserts that the standard of reasonableness is met, as the rule is fundamentally critical to protect the employer’s interests. Reference is made to the following passage from Brown and Beatty at section 4:1554:
In applying the standard of reasonableness, arbitrators assess the extent to which the rule is necessary to protect the employer’s interests in operating the plant, in preserving its property, and generally in carrying out its operations in a reasonably safe, efficient and orderly manner.
As further evidence of the reasonableness of the policy, reference is made to the actual performance of constables during the first quarter of 2012, when the MPS policy was applied. In that time 82 percent of constables either met or exceeded the expectations of the quota. In fact, 67 percent of constables exceeded the quota. Initially only 18 percent failed to meet the quota standard, as a result of which they were offered coaching and counselling. The Company’s representative stresses that employees were advised that an uncorrected failure to meet the quota policy could result in discipline and that, in the end, the policy has been consistently and reasonably enforced.
IV
DECISION
I turn to consider the submissions of the parties. At the outset, I consider it important to reflect upon the general status of police quota systems. Can it be said, as the Police Association alleges, that the very establishing of minimum quotas for filing charges is itself unlawful or contrary to public policy, as an infringement on the overall independence and discretion of police constables? The Police Association has provided me with no Canadian law, whether by way of statute, regulation or common law jurisprudence, which would prohibit a police force from adopting a quota system as a means of ensuring the productivity of police constables. The only judicial examination of police quota systems provided by the Police Association appears to emanate from the United States. Some of the Canadian case law cited to me in fact concerns the arguable reverse of quota systems where, during collective bargaining, the constables of a police force engage in work to rule tactics and apparent slowdowns in the issuing of tickets. (See, e.g., Regina Board of Police Commissioners v. Regina Police Association Inc., [1994] S.L.R.B.D. No. 42 (Sask. L.R.B.))
A case of interest is the decision of the Appellate Court of Illinois in City of Park Ridge v. Richard R. Begg (1982), 110 Ill.App.3d 941; 443 N.E.2d 222. The Court in that case dealt with the challenge of a police officer against his three day suspension for having failed to meet quota requirements in respect of traffic offences. That case involved an order of the Fire and Police Commission which read, in part:
“[with] the number of miles that a patrol officer drives during a watch and the high volume of traffic in the Park Ridge area … it is reasonable for an officer to observe one traffic violation during a watch. Keeping in mind the midnight watch and other consideration [sic], a patrol officer will be expected to issue .80 [traffic] citations per day of patrol over a standard three-month watch cycle.”
The Court notes that there was a further directive that indicated that failing to meet the standard would not automatically result in discipline, particularly if a reasonable explanation could be given for that outcome.
In that case the Court was presented with evidence that the policy had been adopted out of a concern for the high number of traffic accidents in Park Ridge. The evidence given on behalf of the police department indicated that in fact “… the objective standards had reduced the number of accidents in Park Ridge.” The Appellate Court summarized the evidence and the reason for its conclusion that the quota system, which had been struck down by a lower court, was in fact not improper. In that regard the judgment of Romiti, J. states the following:
Plaintiff contends that the traffic index requirement was improper because it had not resulted in reducing accidents in Park Ridge, one of the stated goals set for it. But no such evidence was presented at the hearing. Captain Baudek conceded that the number of accidents had increased, but he also testified that traffic had also increased. Lieutenant Teune specifically testified that he believed establishing objective standards had reduced the number of accidents in Park Ridge. Moreover, there were other stated goals intended to be achieved by these objective standards. They provided a means of evaluating officers in terms of minimal performance as well as identifying superior performance.
Finally plaintiff contends that too much emphasis was placed on the objective standards rather than overall police performance. However, Captain Baudek testified that the two objective categories were only a small part of the evaluation of officers. Lieutenant Teune estimated that the objective standards comprised less than half of the total evaluation. The Commission was free to accept these lesser estimates as opposed to the greater percentages testified to by plaintiff’s witnesses who of course did not conduct the evaluations. Furthermore plaintiff has failed to demonstrate that even great reliance on such objective standards would be unreasonable.
Clearly plaintiff failed to meet his burden of establishing that the challenged regulations were arbitrary or unreasonable.
For the foregoing reasons, the judgement of the circuit court of Cook County is reversed.
The Supreme Court of Illinois affirmed the decision of the Appellate Court of the First District, 4th Division. ((1984) 99 Ill.2d 324: 459 N.E.2d 925) The Supreme Court stipulated that the burden of demonstrating that a regulation should be set aside as arbitrary, unreasonable or capricious rested upon the appellant who challenged it. In that regard the Supreme Court of Illinois commented and concluded as follows:
Appellant did not present any evidence to demonstrate that the traffic index standard was unreasonable. Neither the appellant nor any other officer testified that he was forced to issue more tickets than were justified in order to meet the traffic-index standard. None of them testified that the .80 standard was an unreasonable or arbitrary standard.
During oral argument before this court, the appellant argued that the means (the traffic index) that the city instituted to achieve the ends (less accidents) were not only against public policy, but were also unsuccessful. However, as the appellate court noted, there was no conclusive evidence presented to show that the traffic-index standard had not reduced the number of accidents. Captain Baudek did testify that the number of accidents had increased but so, too, had the traffic count/ Lieutenant Teune testified that since the index was instituted there had been a reduction in the number of accidents. This testimony is inconclusive in establishing the effectiveness of the regulation.
In its amicus curiae brief, filed on behalf of the city, Americans for Effective Law Enforcement, Inc., asserted that standards such as the one set in the instant case not only serve to reduce traffic accidents, but also provide a necessary means by which a police department can maintain structure and control over its police officers. It asserted that administrative rulemaking is necessary to assure uniformity in the enforcement of laws in addition to fulfilling the department’s need for accountability over its officers.
Appellant contends that the traffic-index standard plays too big a role in the overall evaluation of an officer. Captain Baudek and Lieutenant Teune both testified that the traffic and nontraffic indices were less than 50% of an officer’s overall evaluation. The two objective categories were used to make the evaluation less arbitrary. An officer was no longer evaluated solely on the basis of a watch commander’s personal opinion. The appellant failed to show that reliance upon these standards in evaluating officers was unreasonable or arbitrary.
Any regulation can be abused by those persons responsible for its enforcement; however, that does not mean that the regulation itself is invalid or against public policy. As we stated earlier in this opinion, the appellant had the burden of establishing that the regulation was arbitrary and unreasonable. He failed to meet that burden.
Accordingly, we affirm the judgment of the appellate court, which reversed the judgment of the circuit court.
A similar result was reached by the United States Court of Appeals for the 4th Circuit in Mark Gravitte and North Carolina Police Benevolent Association v. North Carolina Division of Motor Vehicles. ((2002), 33 Fed.Appx. 45, 2002 WL 451803 (C.A.4 (N.C.)) When the police association representing state police officers challenged the enforcement of a traffic ticket quota the challenge was rejected. In rejecting the challenge to the quota system the Federal Court of Appeals for the 4th Circuit unanimously commented:
The alleged facts regarding the defendants’ ticket quota policy are not even close to an allegation of “egregious” or “outrageous” executive action necessary to state a substantive due process claim under Lewis. See 523 U.S. 833, 847, n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043. The policy adopted by the DMV helps to ensure a minimum quantity of work from its law enforcement officers and helps to preventing shirking on the job. An employment policy enacted in pursuit of these goals, goals that would be shared by any reasonable employer, can hardly be deemed “egregious” or “outrageous,” even it if impinges on traditional police discretion and imposes more burdensome working conditions on law enforcement officers. The plaintiffs’ allegation that officers are “pressured and coerced to violate the law as a result of the ongoing ticket quota scheme,”FN2 J.A. 224, does not alter our conclusion. While it is conceivable that officers might be tempted to fill their quota by issuing citations for borderline or non-existent violations out of laziness, there is no allegation that the numerical quotas are so onerous that it is impossible for a diligent DMV officer to meet them without breaking the law. To be sure, the alleged ticket quota policy makes a law enforcement officer’s job more difficult. We are also sure that is not enough, standing alone, to constitute a substantive due process violation.
This Board of Arbitration is obviously not bound by the decisions of American courts. That said, however, I consider that the reasoning of the courts in both the City of Park Ridge and the North Carolina Division of Motor Vehicles are a useful guideline in approaching the analysis necessary to resolve the instant dispute. Essentially, these cases confirm the proposition that, prima facie, it is not unlawful or improper for a police authority to adopt a quota system to be enforced by its police officers. The real question to be determined is whether that quota system is arbitrary, unfair or unreasonable. Significantly, both appellate courts whose decisions are reviewed above found that in the circumstances before them there was no suggestion that the quota systems impeded the judgment or discretion of the police officers in respect of filing legitimate charges, nor did they prompt officers to resort to filing false charges to meet their quota.
In the instant case part of the argument made on behalf of the Police Association is to assert that the quota system established by the Chief in respect of CN Police constables is of itself unlawful and improper. The argument is that the very existence of the quota impinges upon the freedom and discretion of constables in deciding whether or not to charge an individual in respect of a violation of a provincial or federal statute or regulation. In my view, that argument cannot succeed on the facts before me. There is no suggestion in the evidence in the case at hand that any constable has resorted to making false charges for the sole purpose of meeting his or her ticket quota under the MPS. At most, as is argued by the Police Association, constables may change the location of their patrolling so as to work in a place where charges are more easily made, arguably at the risk of reducing the police presence in other areas which may in fact be more dangerous. With respect, that argument goes to a fundamental question of management and efficiency, and not to the overall arbitrariness or unreasonableness of the Company’s quota policy. That argument is also a two-edged sword, to the extent that it confirms that CN Police constables continue to exercise their police functions with independence and discretion, guided by their own judgment. Significantly, there is no suggestion in the evidence before me that any constable has been coerced or influenced with respect to the decision whether to lay or not lay any given charge in a specific case. Rather, the quota policy stands as the employer’s chosen instrument to alter the behaviour of the public by reducing instances of trespass and real or potential accidents. In my view that is a legitimate purpose. Also, as in the American cases reviewed above, the quota system secondarily provides an objective means by which the productivity of CN Police constables can be measured for the purposes of performance evaluation and, if necessary, discipline. Nothing in the collective agreement is violated by that.
Counsel for the Police Association questions whether it is appropriate for a constable to be possibly influenced by the quota system in making the decision to lay a charge against a given person. The suggestion is that absent the quota, the constable might well choose not to lay a charge. Accepting that the foregoing is true, how can the quota policy be said to be improper? The very purpose of the quota system is to raise the number of charges brought by CN Police constables for the stated purpose of increasing safety and orderliness on the obviously dangerous premises that are the Company’s property. I can see no basis to find that adopting a policy of stricter enforcement, as was done by the Chief, is itself a violation of any law or of the ultimate independence and discretion of CN Police constables. At no time is any constable prompted or compelled to issue a ticket or file a charge where in fact no infraction has occurred. The most that can be said is that the policy is fashioned so as to prompt CN Police constables to do their job and to advance the interests of safety and security on the Company’s property.
Based on the two court cases reviewed above, whose basic principles I accept, I am satisfied that the fundamental question to be asked is whether the quota standard adopted by the Chief is in fact unreasonable, arbitrary or discriminatory. I think not. I accept, as stressed by counsel for the Police Association, that CN Police constables in some provinces have greater latitude to issue tickets or file charges under both provincial and federal statutes. It is no doubt easier for a CN Police constable working in Saskatchewan or Nova Scotia to identify and file charges under provincial and federal statutes than is the case for CN Police constables assigned in Quebec or Alberta, where there is no jurisdiction to enforce provincial statutes. But with respect, these differences as among provinces do not speak to the essential question to be answered. The question to be answered is whether, in any province, the quota established by the Chief is unreasonable or unachievable for practical purposes. When regard is had to that question, there is simply no evidence before me to establish, on the balance of probabilities, that the quota of something less than one charge per day being filed by CN Police constables is itself unreasonable or unattainable in any location in Canada.
I also have difficulty with the argument of the Police Association to the effect that the quota, on its face, is not clear with respect to the types of charges that might qualify. In my view the directive is categorical in stating that each member of the force is to issue a minimum of 45 federal and/or provincial statute charges per quarter. The bracketed reference to the RSA, HTA and TPA is plainly intended as means of giving examples of the kind of statutes under which charges can be filed. Nor do I find the Police Association’s argument that by referring to Ontario statutes the directive is somehow confusing, bearing in mind that the object of the bracketed portion of the Chief’s directive is to simply give examples of statutes which can be enforced and which in fact arguably represent the bulk of the kind of infractions which will be encountered by CN Police constables, anywhere in Canada. System wide, railway safety, highway safety and trespass to railway property are obviously the everyday stuff of the policing duties of CN Police constables. While the Police Association’s arguments raise numerous hypothetical horribles, there is no evidence before me of confusion in the mind of any CN Police constable with respect to the scope and intent of the MPS policy as enunciated on June 10, 2010.
Nor do I consider it critical that the policy itself does not speak to the disciplinary consequences which might flow from a failure on the part of any given CN Police constable to meet the standard established. It is plainly within the discretion of the Company to issue directives to its employees. It is obviously implicit at all times that the failure to adhere to properly established standards may well result in disciplinary consequences. In that regard it is not insignificant that the parties’ collective agreement, under article 14 “Grievance Procedure” expressly contemplates that CN Police constables are liable to discipline for breaking employment rules. In that regard article 14.7 of the collective agreement provides as follows:
14.7 Wherever employees are requested to appear at a hearing or requests a hearing on their own behalf for the purpose of answering to their alleged breaking of rules, they may be accompanied by one or two fellow employees who may be accredited representatives of the Association with the exception of any fellow employee who has notice or was a witness of the alleged breaking of rules. The employee or his/her representatives shall have the right to question attending witnesses in an orderly manner and they shall also be shown sufficient evidence related to the case. The employee shall be given at least three days’ notice of such hearing and the reason(s) therefore. The officer conducting the hearing on the Company’s behalf shall not be the same officer who was instrumental in reporting the employee for allegedly breaking the rules. In the application of this paragraph, the local President will be provided with a simultaneous copy of all notices of hearings.
Articles 14.8 and 14.9 reaffirm the disciplinary authority of the Company for the misconduct or the breaking of rules:
14.8 When employees are required to attend a hearing for the purpose of answering their alleged breaking of rules, notes may be taken and recorded during such hearings. The employee(s) will not be asked to sign such documents.
14.9 In connection with investigation of alleged misconduct or the breaking of Company rules, no employee shall be required to submit to a polygraph (lie detector) test.
Finally, I am not persuaded by the suggestion that the quota policy cannot stand because it has not been consistently enforced. What the evidence suggests is that in fact the Company has made allowance for some CN Police constables whose duties may in fact place them in a circumstance where the filing of charges will in fact be less frequent. I have difficulty understanding how it can be that the forbearance of the Company in strictly applying the quota system to CN Police constables who are not directly involved in the filing of charges can of itself be said to be an unreasonable form of inconsistency.
It is, of course, important to stress that the enforcement of discipline in respect of failing to meet the quota must, of necessity, be subject to the grievance and arbitration provisions, and implicitly the just cause standard, which operates within the collective agreement. If, for example, it could be shown that three CN Police constables failed to meet the quota standard but only one was disciplined and that no objective justification can be seen for that distinction, a grievance might well succeed on the just cause basis, where discriminatory treatment is in fact established in truly comparable circumstances. To put it differently, to the extent that the enforcement of quota policy through the assessment of discipline is itself subject to the just cause standard, the Police Association has at its disposal the necessary tools to ensure that from a disciplinary standpoint the policy is consistently enforced and that its members are not in fact subjected to any discriminatory treatment.
In the result, I do not believe that the grievance can succeed. The Chief established the quota for the minimum number of charges to be filed by CN Police constables out of a concern for the protection of the Company’s legitimate business interests, notably the reduction of trespass on its property and the related safety hazards and accidents which can occur, whether on main lines, in yards, at level crossings or elsewhere on the inherently hazardous property of a railway. In my view the policy is sufficiently clear in its language and it operates in manner that is consistent and fair throughout the Company’s national system, even when regard is had to the variances in jurisdiction under which CN Police constables may work from province to province. Perhaps most significantly, as noted above, there is simply no evidence placed before me to confirm that the laying of something averaging approximately one charge per day is a standard which is unreasonable or unachievable for a CN Police constable in any location in Canada. The Company’s policy does not interfere with the historic prerogatives and discretion of police constables with respect to the treatment of any particular case. The fact that the policy provides an objective system to monitor and evaluate the productivity and performance of a CN Police constable is itself a legitimate employer interest, the enforcement of which involves no violation of any provision of the collective agreement or of any federal or provincial law of which I am aware. While, as noted in the American cases cited above, the adoption of the quota policy may place a greater work burden upon CN Police constables, that of itself does not render the policy improper or unlawful.
As noted above, the policy of itself cannot displace the just cause standards implicit in the parties’ collective agreement. There may well be a circumstance in which a CN Police constable can demonstrate that the quota standard was unreasonable or unattainable in the specific working conditions where he or she was situated over a given three month period. Should that be demonstrated, for example at an arbitration, it may be found that just cause for discipline is not then established. Additionally, it should be recognized that the success of the policy itself might bring its enforceability into question. If, for example, it could be shown that in a given location the more aggressive enforcement of the statutes and rules by CN Police constables has in fact had the desired effect of behaviour modification, and that instances of trespass, safety or traffic violations have substantially reduced, there may be a basis to question to whether the standard of 45 federal and/or provincial statute charges, or 180 warnings, per quarter remains reasonable and realistic. That reality, which would obviously be desired by both the Company and the Police Association, has obviously not yet arrived. For the time being, under actual conditions, I am satisfied that the quota for federal and provincial charges or warnings adopted by the Chief in his directive of June 10, 2010 is neither unlawful nor unreasonable.
For all of these reasons the grievance must be dismissed.
Dated at Ottawa, Ontario this 27th day of July, 2012.
“Michel G. Picher”
Michel G. Picher