OTTAWA POLICE SERVICES BOARD

OTTAWA POLICE SERVICES BOARD

COMMISSION DE SERVICES POLICIERS D’OTTAWA

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REPORT

RAPPORT

DATE 24 June 2013

TO/DEST. Chair and Members, Ottawa Police Services Board

FROM/EXP. Policy & Governance Committee

SUBJECT/OBJET BOARD POLICY ON LEGAL INDEMNIFICATION

RECOMMENDATION

That the Ottawa Police Services Board approve the Legal Indemnification Policy set out in Annex A.

BACKGROUND

The Police Services Act, subsection 31(1)(h), requires every police services board to establish “guidelines with respect to the indemnification of members of the police force for legal costs under section 50”. Section 50 states:

50. (1) The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.

Indemnification of member of municipal police force

(2) The board may, in accordance with the guidelines established under clause 31 (1) (h), indemnify a member of the police force for reasonable legal costs incurred,

(a) in the defence of a civil action, if the member is not found to be liable;

(b) in the defence of a criminal prosecution, if the member is found not guilty;

(c) in respect of any other proceeding in which the member’s manner of execution of the duties of his or her employment was an issue, if the member is found to have acted in good faith.

Agreement

(3) A majority of the members of a police force and the board may, in an agreement made under Part VIII, provide for indemnification for the legal costs of members of the police force, except the legal costs of a member who is found guilty of a criminal offence; if such an agreement exists, the board shall indemnify members in accordance with the agreement and subsection (2) does not apply.

In the case of the Ottawa Police Services Board, guidelines for indemnification are set out in the collective agreements applicable to the various bargaining groups, made under Part VIII of the Act. Generally speaking, the collective agreements define the broad parameters on the indemnification obligations that the Board has assumed, and delegate to the Chief of Police responsibility for receiving, considering and approving requests for legal indemnification. The document attached at Annex B outlines the specific clauses pertaining to legal indemnification contained in the three collective agreements the Board has with members of the Police Service. The clauses that are pertinent to this report are the following (the extracts are from the Collective Agreement for Sworn Officers; the other two agreements contain similar clauses):

Pertinent Collective Agreement Provisions

26.01 Subject to the other provisions of the Article, an employee charged with and finally acquitted of a criminal or statutory offence, because of acts done in the attempted performance in good faith of his/her duties as a police officer shall be indemnified for the necessary and reasonable costs incurred in the defence of such charges.

26.06 Where an employee intends to apply to the Board for indemnification hereunder, the employee shall, within thirty (30) days of being charged or receiving notice of other legal proceedings covered herein, or receiving notice that he/she will not be represented by counsel retained by the Chief and/or Board, apply in writing to the Chief or to the officer designated by the Chief to deal with such applications for approval to retain counsel and approval of the counsel to be so retained. In the event of any dispute concerning the counsel to be retained, the matter shall be resolved by an officer designated by the Chief and a member of the Association Executive designated for that purpose.

26.10 For the purposes of this provision, “necessary and reasonable legal costs” shall be based on the account rendered by the solicitor performing the work, subject initially to the approval of the Board and, in the case of dispute between the solicitor doing the work and the Board, assessment on a solicitor and client basis by the assessment officer.

DISCUSSION

The Board is committed to supporting members of the police service who face legal jeopardy as a result of actions taken in the performance of their duties when they are found to have acted in good faith. When a member of the Service finds themselves in this situation, the Board is committed to ensuring the member is provided with high quality and effective legal representation.

Similarly, the Board is committed to respecting the provisions of the collective agreements. There are two aspects of the existing provisions that the Board has expressed a desire to clarify so that the administration of this function flows more smoothly; they are as follows:

1. Requirement for Chief to Approve Retention of Counsel

The requirement under the collective agreements that the Chief of Police approve the retention of legal counsel and the counsel to be retained, upon application from a member of the Service, is problematic. This responsibility properly belongs to the Board as the party liable in respect of torts committed by members of the police force in the course of their employment, and as the party responsible for payment of necessary and reasonable legal fees incurred in defending an officer. The Board Solicitor is better placed and more knowledgeable with respect to making the kind of decisions required under this clause of the collective agreement.

A change to this provision would require an amendment to the existing collective agreements and should be addressed during collective bargaining negotiations with the police associations. Both the Ottawa Police Association and the Ottawa Senior Officers’ Association are aware of the challenges the current language presents and have indicated that they agree any changes should be addressed during bargaining.

2. Administration of Legal Accounts - Submissions and Payment

The Board has indicated it would like to develop administrative procedures to be followed when indemnification requests are made and when legal accounts are submitted for its approval. There are currently no procedures in place to provide guidance in this regard. The procedures contained in Appendix A attached to the policy at Annex A provide that clarity and will be helpful to the Board, as well as to legal counsel retained by officers, with regard to determining what are “necessary and reasonable” costs as referenced in the collective agreements and avoiding potential disputes.

CONSULTATION

Previous boards and chiefs of police have identified similar concerns about the existing legal indemnification provisions. This Board began working on a draft administrative policy in March 2011. The Board Executive Director W. Fedec and Board Solicitor D. White have worked with former Chief White, current Chief Bordeleau and the OPS legal and policy staff to develop appropriate procedures. The Policy and Governance Committee reviewed drafts of the policy in August 2011 and again in January 2012. At the request of the Committee, in March 2012 the draft policy was shared with the Presidents of the Ottawa Police Association and the Senior Officers’ Association. They declined to provide feedback, indicating that any changes or clarifications the Board wished to make would need to be negotiated through the collective bargaining process.

Further refining of the policy continued and in October 2012 the two association presidents were again provided with the proposed administrative procedures and invited to a meeting to discuss them. They declined the invitation and advised in writing of their intention to file a grievance should the Board adopt the policy.

In addition to consultation within the police service, the Big 12 police services boards in Ontario were consulted as to their legal indemnification practices and collective agreement language.

FINANCIAL STATEMENT

There are no financial implications associated with the adoption of procedures for processing legal indemnification accounts.

CONCLUSION

Under the Police Services Act, the Board is authorized to provide legal indemnification to members of the Service in certain situations, the parameters of which are set out in the collective agreements between the Board and the two police associations. In order to provide greater clarity around the administrative procedures to be followed when legal indemnification is requested and accounts submitted for approval, it is recommended that the Board adopt the policy attached at Annex A.

Additional clarifications will be sought through the collective bargaining process, as outlined in this report.

____________________________________________

Submitted by the Policy & Governance Committee:

Carl Nicholson, Chair

Adriana Doyle

Jim Durrell

Attach. (2)

Policy Number: Policy Subject:
GA-15 LEGAL INDEMNIFICATION
LEGISLATIVE AUTHORITY / REFERENCE	Police Services Act sections 31(1)(h), 50 Collective Agreements
DATE APPROVED
DATE AMENDED
DATE TO BE REVIEWED
REPORTING REQUIREMENT	As prescribed in the Reporting section of the policy

LEGISLATIVE AUTHORITY / REFERENCES

· Section 31(1)(h) of the Police Services Act states that a board shall establish guidelines with respect to the indemnification of members of the police force for legal costs under section 50 of the Police Services Act.

§ Ottawa Police Association Collective Agreement (Police Personnel), article 26

§ Ottawa Police Association Collective Agreement (Civilian Personnel), article 28

§ Ottawa Police Senior Officers Association Collective Agreement, article 18

BOARD POLICY

PURPOSE

As permitted under section 50 of the Police Services Act and in accordance with the Collective Agreements between the Ottawa Police Services Board (“the Board”) and bargaining units representing members of the Ottawa Police Service, the Board approves the retention of legal counsel from time to time, to represent members of the Ottawa Police Service (“the Service”) in various matters. The Board is also responsible for approving and paying legal accounts submitted by members of the Service for necessary and reasonable costs incurred as a result of legal indemnification.

The Board is committed to supporting members of the police service who face legal jeopardy as a result of the performance of their duties when they are found to have acted in good faith, and to ensuring they are provided with high quality legal representation.. This policy establishes administrative procedures to be followed when requests for legal indemnification, and legal accounts, are submitted for approval by members of the Service.

APPLICATION

This policy applies to requests for legal indemnification and payment of legal accounts submitted to the Board pursuant to the Uniform, Civilian or Senior Officers Collective Agreements, as well as requests submitted by Auxiliary Members of the Service.

In accordance with the Uniform, Civilian or Senior Officers Collective Agreements, the Board will provide legal representation through the Board Solicitor for a member of the Service who is a defendant in a civil or administrative claim for damages arising out of the attempted performance, in good faith, of his/her duties, unless the Board Solicitor determines that it would be improper to represent both the Board and the member. In such cases, the member will be required to retain his/her own legal representation.

Where the member is charged with a criminal or statutory offence arising out of his/her employment with the Service, the Board will not provide representation and the member will be required to retain his/her own legal representation.

Reimbursement of legal costs for a member required to retain his/her own legal counsel will be determined in accordance with the applicable collective agreement.

POLICY REQUIREMENTS

It is the policy of the Ottawa Police Services Board that the following procedures shall be followed with regard to legal indemnification:

A. INDEMNIFICATION OF MEMBERS OF OTTAWA POLICE SERVICE

1. Uniform and Civilian Members of the Ottawa Police Service may be entitled to legal indemnification in accordance with their respective Collective Agreement. Such indemnification is subject to the conditions set out in the applicable agreement, which includes the requirement to obtain the Board’s prior approval to retain counsel and approval of the counsel to be retained, through application in writing to the Chief of Police or the officer designated by the Chief to deal with such applications.

Legal indemnification of the Uniform and Civilian Members is also subject to the requirements and limitations of the Police Services Act.

2. In accordance with the Collective Agreement(s), the Board will reimburse those amounts which constitute “necessary and reasonable legal costs”, as more specifically defined in the accompanying Procedure at Appendix “A”.

3. Where an investigation is commenced by the Special Investigations Unit pursuant to Section 113 of the Police Services Act, an employee’s entitlement to legal representation shall be determined in accordance with the applicable Collective Agreement, until such time as the matter is brought to the attention of the Board. When the matter is brought to the Board for approval, it shall be governed by the provisions of the Collective Agreement with respect to entitlement and this policy with respect to payment of accounts. Requests for legal representation where criminal charges are laid as a result of an SIU investigation shall be governed by the provisions of the Collective Agreement and the Police Services Act.

B. INDEMNIFICATION OF AUXILIARY MEMBERS

1. Auxiliary Members of the Ottawa Police Service may be entitled to legal indemnification in respect of actions or proceedings arising out of acts or omissions by the Member in his or her capacity as an Auxiliary Member of the Ottawa Police Service. For the purposes of this policy “action or proceeding” includes all civil actions, provincial offences or administrative proceedings, except those arising under the Highway Traffic Act, municipal parking or traffic by-laws, or the Criminal Code.

2. Subject to the provisions of this policy, in an action or proceeding against an Auxiliary Member with the exception of any criminal or quasi-criminal proceeding, the Board shall defend or represent the Member in such proceeding in the name of and on behalf of the Member.

3. A Member may retain his or her own legal counsel for the defence or representation in an action or proceeding in lieu of the defence or representation provided by the Board, provided that the Board shall not reimburse the Member for his or her legal costs except where the Board has declined to defend or represent the Member because either:

(a) The Board Solicitor has determined that it would be inappropriate for the Board to defend or continue to defend or represent the Member; or

(b) The Board Solicitor is satisfied that the interests of the Board and the Member conflict.

4. The Board shall not reimburse the Member under this policy unless it has approved the selection of legal counsel retained by the Member. Such approval shall be conditional upon the requirements set out in sections C and D and Appendix “A” of this policy.

5. Where an Auxiliary Member is charged with and subsequently acquitted of an offence under the Criminal Code or a provincial statute or regulation because of any act done or any failure to act or allegations of same in the attempted performance or performance in good faith of his or her duties as an Auxiliary Member, the Member shall be indemnified by the Board for the necessary and reasonable legal costs incurred in defence of such charges or allegations. The Auxiliary Member may be entitled to receive payment from the Board for a retainer for interim legal costs incurred in the defence of such charges or allegations to a maximum of $5,000, at the discretion of the Board.

6. Where an Auxiliary Member is the subject of an investigation in a matter which may result in charges being laid against the Member under the Criminal Code or other provincial statute or regulation, because of any act done or any failure to act or allegations of same in the attempted performance or the performance of his or her duties as an Auxiliary Member, the Member may be entitled to receive payment from the Board for a retainer of and/or interim legal costs, not exceeding $5,000, to obtain legal representation during the investigation, at the discretion of the Board.

7. As a condition precedent to the Board making payments in respect of the costs pursuant to paragraphs 5 or 6 above, the Auxiliary Member must agree in writing to repay the Board, if the Member is convicted of an offence, all sums paid by the Board including the legal retainer as provided for in paragraphs 5 and 6.

C. COMMUNICATIONS

1. Unless otherwise specified, communication of administrative matters (i.e. accounts) shall be addressed to the Board Solicitor. All other communications, including requests for legal indemnification, shall be addressed to the Chief of Police.

D. REVIEW OF LEGAL ACCOUNTS

1. The Board Solicitor will review all legal accounts prior to their submission to the Board for approval.

MONITORING REQUIREMENTS

Not applicable.

REPORTING REQUIREMENTS

Approval of the provision of legal counsel and retention of said counsel by the Chief on behalf of the Board shall be reported to the Board by the Board Solicitor on an individual basis as they occur.

APPENDIX “A”

LEGAL INDEMNIFICATION PROCEDURES

A. APPROVAL OF COUNSEL TO BE RETAINED

1) The Board shall require requests submitted to the Chief of Police for approval to retain independent legal counsel to include a detailed outline of the proposed retainer, including the following:

(a) Name and contact information for the lawyer(s) to be retained, including hourly rate(s);

(b) A litigation outline/budget setting out the estimated costs (legal fees and disbursements, including any anticipated expert witness fees) involved in the proceeding;

(c) Mileage charges incurred by a lawyer while in transit will be reimbursed at a rate not exceeding those used by the Board.

(d) Once the selection of legal counsel has been approved, the Board expects that outside counsel will review staffing assignments and, as a result, will not pay for any of the following:

i. a review of the same correspondence or document by more than one lawyer;

ii. education of counsel as to an issue of law which should be known or readily available to a lawyer due to his or her expertise;

iii. time spent familiarizing a new lawyer with a file when another lawyer leaves, is removed or is unavailable;

iv. other staffing inefficiencies caused by the unavailability of firm personnel;

v. revisions to routine correspondence addressed to the Chief or the Board;

vi. re-drafting the work of associates or clerks;

vii. inter-office conferences that are not necessary strategy sessions;

viii. duplicate attendance at hearings, conferences, meetings, interoffice conferences, examinations for discovery, mediations or other similar occasions;

ix. routine administrative tasks such as form letters, file organization, preparation of accounts and scheduling examinations for discovery and meetings.

(e) An acknowledgement from the lawyer(s) to be retained of the terms of payment described herein.

2) The information required under the above paragraphs shall be provided by the Chief of Police to the Board Solicitor, who will assess whether the terms of the proposed retainer are reasonable in the circumstances, recognizing such things as the complexity of the matter and the prevailing hourly rate for similarly experienced members of the local Bar.

3) In the case of a dispute concerning the counsel to be retained, the matter shall be resolved in accordance with the dispute resolution mechanism outlined in the applicable collective agreement.

B. ACCOUNTS

1. Payment of accounts for approved independent legal counsel shall be in accordance with the relevant collective agreement. Prior to accounts being submitted to the Board for payment, the Board expects legal counsel to review the account closely, exercising billing judgment and allowing only accurate and reasonable charges for efficient services. The Board expects the accounts to show the same high quality and care that outside counsel exercises in the performance of legal services.

2. In order to ensure timely payment, every account submitted to the Board is to be addressed to the Board Solicitor and should contain the following information:

a) the name of the matter;

b) the date the task was performed;

c) by whom the task was performed (if initials are used, the full name should appear elsewhere on the account);

d) his or her hourly rate;

e) the time spent for each task (by tenths of an hour);

f) a detailed description of the work performed specific enough to allow a person unfamiliar with the file to determine the function performed and its necessity;

g) a detailed itemization of disbursements; and

h) the cumulative total of fees and disbursements on the file to date.

3. It should be noted the following generic descriptions are not acceptable on an account rendered to the Board for payment unless accompanied by greater detail:

a) review of case and issue;

b) review correspondence;

c) review of documents;

d) conference;

e) meeting;

f) telephone call;

g) preparation for meeting;

h) preparation of materials;

i) preparation for trial;

j) preparation for motion;

k) pleadings;

l) research; and

m) discovery.

4. Accounts rendered to the Board that do not include all the required information will not be paid and will be returned to outside counsel for further clarification. Solicitor-client privilege will be respected, however, the Board requires sufficient information upon which to base its approval of legal accounts submitted to it for approval.

5. Interim accounts should not be rendered until the amount of the fees and disbursements incurred totals $2,500.00. Notwithstanding the foregoing, accounts must be rendered prior to December 31^st of each year.

6. The Board will not pay for the difference between the hourly rate of a lawyer when the retainer is approved and any subsequent change in his or her hourly rate. The hourly rate at the time of approval will apply for the duration of the retainer.

COLLECTIVE AGREEMENT LEGAL INDEMNIFICATION PROVISIONS

Ottawa Police Association - Sworn Collective Agreement – Article 26 – Legal Indemnification

(Note: Similar provisions exist in the Collective Agreements for Civilians and for Senior Officers and are attached))

26.02 Notwithstanding 26.01, the Board may authorize payment of necessary and reasonable legal costs of an employee pleading or being found guilty of an offence described in 26.01, where the court, instead of convicting the accused, grants him/her an absolute discharge, provided that the Board accepts the recommendation of the Chief, or an officer designated by him/her to make such a recommendations that the employee’s actions as a police officer in the course of performing his/her duties were motivated by an intent to do his/her lawful duty, that such actions do not constitute any of the actions described in 26.03 hereof, and that such indemnification will not in the opinion of the Board reduce respect for law enforcement in the RMOC.

26.03 Notwithstanding 26.01, the Board may refuse payment otherwise authorized under 26.01 where the actions of the officer from which the charges arose amounted to a gross dereliction of duty or deliberate abuse of his/her powers as a police officer.

26:04 Where an employee is a defendant in a civil action for damages because of acts done in the attempted performance in good faith of his/her duties as a police officer he/she shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such an action in the following circumstances only:

(a) Where the Chief is not joined in the action as a party pursuant to section 50 (1) of the Police Services Act, and the Chief does not defend the action on behalf of himself/herself and of the employee as joint tortfeasors at the Board’s sole expense.

(b) Where the Chief is joined as a party or elects to defend the action, but the solicitor retained on behalf of the Chief and the employee is of the view that it would be improper for him/her to act for both the Chief and the employee in that action.

26:05 An employee whose conduct is called into question in the course of an inquiry under the Coroner’s Act because of acts done in the attempted performance in good faith of his/her duties as a police officer shall be indemnified for the necessary and reasonable legal costs incurred in representing his/her interests in any such inquest in the following circumstances only:

(a) Where the Chief and/or the Board does not provide counsel to represent the employee at the inquest at the Board’s expense;

(b) Where the counsel provided by the Chief or the Board to represent either or both of them along with the employee is of the opinion that it would be improper for him/her to act for both the Chief or the Board and the employee in that action.

26:07 Where the Chief, pursuant to Board policy, elects to provide legal counsel to defend an employee in any legal proceeding covered by this provision, the cost of such counsel is the Board’s responsibility irrespective of the outcome of the proceedings and neither the employee nor Board may rely upon the other provisions of this the policy.

26:08 For greater certainty, employees shall not be indemnified for legal costs arising from:

a) grievances or complaints under the Collective Agreement between the Board and the Association or under the Police Services Act;

b) the actions or omissions of employees acting in their capacity as private citizens;

c) discipline charges under the Police Services Act and regulations thereunder.

26:09 For the purposes of this provision, an employee shall not be deemed to be “finally acquitted” if as a result of charges laid he/she is subsequently found guilty of, or pleads guilty to, other charges arising out of the same incident or incidents, but nothing in this clause will disentitle the member to consideration under 26:02 hereof.

26:11

(a) An employee who is the subject of a hearing before a board of inquiry established by the Ontario Commission on Police Services because of acts done in the attempted performance in good faith of his/her duties as a police officer shall be indemnified for the necessary and reasonable legal costs incurred in respect of that hearing only where the Chief has referred a matter to a board of inquiry, or OCCOPS and any successor organization, has ordered a hearing before a board of inquiry pursuant to the Police Services Act, and the officer is found not guilty of misconduct under the Act by the board of inquiry or a panel of members thereof.

(b) An employee who is the subject of a hearing before a board of inquiry in relation to acts done in his/her capacity as a private citizen shall be entitled to indemnification where he/she is found not guilty of misconduct by the board of inquiry pursuant to the Police Services Act.

26:12 Where an employee has applied pursuant to 26:06, upon application to the Board by the employee, the Board may provide an advance payment for the employee’s necessary and reasonable legal costs as those costs are incurred. Any consideration in this regard would be solely at the discretion of the Board on such conditions and in an amount determined by the Board.

After disposition, if the employee did not meet the criteria for reimbursement as outlined in Article 26 the employee will be required to reimburse the Board for the total amount of any advance payment provided under this clause.

Ottawa Police Association – Civilian Collective Agreement – Article 28 – Legal Indemnification

28:01 Subject to the other provisions of this Article, an employee charged with and finally acquitted of a criminal or statutory offence, because of acts done in the attempted performance in good faith of his/her duties as an employee shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such charges. See Letter of Understanding on page 75 regarding suspensions with pay.

28:02 Notwithstanding Clause 28:01, the Board may authorize payment of necessary and reasonable legal costs of an employee pleading or being found guilty of an offence described in Clause 28:01, where the court, instead of convicting the accused, grants him/her an absolute discharge, provided that the Board accepts the recommendation of the Chief of Police, or an officer designated by him/her to make such a recommendation, that the employee’s actions in the course of performing his/her duties were motivated by an intent to do his/her lawful duty, that such actions do not constitute any of the actions described in Clause28:03 hereof, and that such indemnification will not in the opinion of the Board reduce respect for law enforcement to the City of Ottawa.

28:03 NotwithstandingClause28:01, the Board may refuse payment otherwise authorized underClause28:01 where the actions of the employee from which the charges arose amounted to a gross dereliction of duty or deliberate abuse of his/her powers as a employee.

28:04 Where an employee is a defendant in a civil action for damages because of acts done in the attempted performance in good faith of his/her duties as an employee, he/she shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such an action in the following circumstances only:

(a) Where the Chief of Police is not joined in the action as a party as set out in the Police Services Act, and the Chief of Police does not defend the action on behalf of himself/herself and of the employee as joint tortfeasers at the Board’s sole expense;

(b) Where the Chief of Police is joined as a party or elects to defend the action, but the solicitor retained on behalf of the Chief of Police and the employee is of the view that it would be improper for him/her to act for both the Chief of Police and the employee in that action.

28:05 An employee whose conduct is called into question in the course of an inquiry under the Coroner’s Act because of acts done in the attempted performance in good faith of his/her duties as an employee shall be indemnified for the necessary and reasonable legal costs incurred in representing his/her interests in any such inquest in the following circumstances only:

(a) Where the Chief of Police and/or the Board does not provide counsel to represent the employee at the inquest at the Board’s expense; or,

(b) Where the counsel provided by the Chief of Police or the Board to represent either or both of them along with the employee is of the opinion that it would be improper for him/her to act for both the Chief of Police or the Board and the employee in that action.

28:06 Where an employee intends to apply to the Board for indemnification hereunder, the employee shall, within thirty(30) days of being charged or receiving notice of other legal proceedings covered herein, or receiving notice that he/she will not be represented by counsel retained by the Chief of Police and/or the Board, apply in writing to the Chief of Police or to the officer designated by the Chief of Police to deal with such applications for approval to retain counsel and approval of the counsel to be so retained. In the event of any dispute concerning the counsel to be retained, the matter shall be resolved by an officer designated by the Chief and an employee of the Association Executive designated for that purpose.

28:07 Where the Chief of Police, pursuant to Board policy, elects to provide legal counsel to defend an employee in any legal proceeding covered by this provision, the cost of such counsel is the Board’s responsibility irrespective of the outcome of the proceedings and neither the employee nor the Board may rely upon the other provisions of this policy.

Ottawa Police Senior Officers Association

Collective Agreement – Article 18 – Legal Indemnification

18:01 Subject to the other provisions of this Article, an employee charged with and finally acquitted of a criminal or statutory offence arising from the performance or attempted performance, in good faith, of his/her duties as an employee of the Service shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such charges.

18:02 Notwithstanding clause 18:01, the Board may refuse payment otherwise authorized under clause 18:01 where the actions of the employee from which the charges arose amounted to a gross dereliction of duty or deliberate abuse of his/her powers as an employee of the Service.

18:03 Where an employee is a defendant in a civil action, or other matters for which damages and/or other remedies are sought because of acts done in the performance or attempted performance in good faith of his/her duties, he/she shall be indemnified for the necessary and reasonable legal costs incurred in the defence of such an action and any related damage awards in the following circumstances only:

(a) Where the Board is not joined in the action as a party pursuant to the Police Services Act, or the Board does not defend the action on behalf of both itself and the employee as joint tortfeasors at the Board’s sole expense; or,

(b) Where the Board is joined as a party and elects to defend the action, but the Solicitor retained on behalf of the Board and the employee is of the view that it would be improper for him/her to act for both the Board and the employee in that action.

18:04 An employee whose conduct is called into question in the course of an action, inquiry, public hearing, inquest, or royal commission or the initial phase of an investigation by the Special Investigations Unit under Part VII of the Police Services Act, because of acts done in the performance or attempted performance in good faith of his/her duties shall be indemnified for the necessary and reasonable legal costs incurred in representing his/her interests in any such inquest in the following circumstances only:

(i) Where the Chief and/or the Board does not provide counsel to represent the employee at the inquiry, public hearing, action, inquest, royal commission or initial phase of an investigation by the SIU, at the Board’s expense; or,

(ii) Where the Counsel provided by the Chief or the Board to represent either or both of them along with the employee is of the opinion that it would be improper for him/her to act for both the Chief or the Board and the employee in that inquiry.

18:05 (a) Where an employee intends to apply to the Board for indemnification hereunder, the employee shall, within thirty (30) days of being charged or receiving notice of other legal proceedings covered herein, or receiving notice that he/she will not be represented by counsel retained by the Chief and/or the Board, apply in writing to the Chief or to the officer designated by the Chief to deal with such applications for approval to retain counsel and approval of the counsel to be so retained. In the event of any dispute concerning the Counsel to be retained, the matter shall be resolved by an officer designated by the Chief and a member of the Association Executive designated for that purpose.

(b) When an employee advises his/her Unit Commander, in accordance with the Regulations of the Ottawa Police Service, that he/she has been charged or has received notice of other proceedings covered hereunder, the Unit Commander will direct the employee to a member of the Executive of the Association who will advise the employee of the requirement to apply for indemnification within thirty (30) days.

18:06 For greater certainty, employees shall not be indemnified for legal costs arising from:

(a) Grievances or complaints under the Collective Agreement between the Board and the Association or under the Police Services Act;

(b) The actions or omissions of Employees acting in their capacity as private citizens; and,

18:07 For the purposes of this Article an employee:

(a) Shall be deemed to have been found “not guilty” where he/she is finally acquitted, where the charges are withdrawn or where he/she is discharged following a preliminary inquiry and where the court, instead of convicting the accused, grants him/her an absolute discharge, provided that the Board accepts the recommendation of the Chief, or an officer designated by him/her to make such a recommendation that the employee’s actions, in the course of their employment, were motivated by an intent to do his/her lawful duty, that such actions do not constitute any of the actions described in 18:02 hereof, and that such indemnification will not, in the opinion of the Board, reduce respect for law enforcement in the City of Ottawa; and

(b) Shall be deemed to have been found “guilty” where the employee is given a conditional discharge or where, if as a result of charges laid he/she is subsequently found guilty of, or pleads guilty to, other charges arising out of the same incident or incidents.

18:08 For the purposes of this provision, “necessary and reasonable legal costs” shall be based on the account rendered by the solicitor performing the work, subject initially to the approval of the Board and, in the case of dispute between the solicitor doing the work and the Board, assessment on a solicitor and client basis by the assessment officer. This clause also includes costs associated to a licensed paralegal, should the Association choose this service.

18:09 For the purpose of this Article, a reference to any Act shall be deemed to include any Act that in the future is enacted in place of the Act referred to in this Article and shall include new legislation, additions or addendums.

18:10 For the purpose of this Article, the necessary and reasonable legal costs incurred by an employee for which provision of legal indemnification is made shall be deemed to have been incurred by the employee himself/herself, save and except in circumstances where the employee has received financial assistance in respect thereof from the Association. Where the Association has provided the employee with financial assistance, any and all reimbursements shall be made directly to the Association.

It is understood that, to the extent necessary to account for legal costs where such costs are to be approved by the Board, dockets/notations set out in those documents that would otherwise reveal information that would be privileged on a solicitor/client basis may be generalized.

18:11 Where an employee has applied pursuant to clause 18:05, upon application to the Board, the Board may provide an advance payment for the employee’s necessary and reasonable legal costs as those costs are incurred. Any consideration in this regard would be solely at the discretion of the Board on such conditions and in an amount determined by the Board.

After disposition, if the employee did not meet the criteria for reimbursement as outlined in Article 18, the employee will be required to reimburse the Board for the total amount of any advance payment provided under this clause.

18:12 All provisions of this article shall apply to active members of the Association and members who have retired from the Service and the situation or incident occurred when they were an active member.