u- n___n_------- --- --

IN THE MATTER OF AN ARBITRATION

BETWEEN:

THE METROPOLITAN TORONTO POLICE ASSOCIATION

- and -METROPOLITAN TORONTO BOARD OF COMMISSIONERS OF POLICE.

Grievance of Fred Schofield re Leqal IndA1Itn~

Arbitrator: M. G. Mitchnick

~ppearance.:

For the Association: Ian ROland, CounselJack RitchieP.C. Fred Schofield

For the Board: M. Hines, CounselLen Hazel

Hearinq held in Toronto on December 13, 1989

90-054

AWARD

This matter involves a claim by Constable Fred

Schofield to be indemnified by the Board of Police

commissioners for legal expenses incurred in successfully

defending bimself against criminal charges levied against him

by a private citizen in the summer of 1984. The provision of

the collective agreement under which the claim is made states:

23:01 subject to the other provisions of thisArticle, a membercbarged with and finallyacquitted of a criminal or statutory offence,because of acts done in tbe attemptedperformance in good faith of his/her dutiesas a police officer shall be indemnified forthe necessary and reasonable legal costsincurred in the defence of such charges.

And the respective parties point as well to:

23:03

23:09

Notwithstanding clause 23:01, the Board mayrefuse payment otherwise authorized underclause 23:01 where the actions of the officerfrom which the charges arose amounted to agross dereliction of duty or deliberate abuseof his/her powers as a police officer.

For greater certainty, members shall not beindemnified for legal costs arising from:

. . .

(2) the actions or omissions of membersacting in their capacity as privatecitizens.

The grievor at the relev~nt time was 29 and a 10-year

veteran of the force. The incident giving rise to his claim

began on a hot summer day with the grievor, being off duty, ..

- 2 -

relaxing with his wife over a pot of tea on the balcony of his

eighth-floor condominium apartment. Suddenly he and his wife

heard ~houts and saw a man being pursued across the adjacent

school grounds by uniformed policemen. The man scaled a steel

fence, and headed toward the back of the apartment building,

under the balcony upon which the grievor had been sitting. ~e

grievor called down to the pursuing police officers and asked

if there was anything he could do to help. The response was to

go to the front door and open it for the officers in the squad

car. "The grievor did that, and when he did he identified

himself as an officer of the force (the policemen involved were

from a different division and unknown to the grievor). The

grievor also advised the officers that from what he had seen of

the suspect, he looked like another resident in the building

whom the grievor knew only as "Craig" (subsequently identified

as one Craig Ferguson). ~e grievor could offer no information

as to which unit that individual resided in, and that was the

end of his involvement with the other officers.

That day the grievor was looking after setting up the,

main-floor recreation room tor a retirement party being given

for his father-in-law. Some time after his involvement"with

the chase scene he was on his way through the lobby with a bag

of ice when he was stopped by the man he knew as "craig" (Mr.

Ferguson). Mr. Ferguson appeared hostile in manner and asked

the grievor if he was the guy who lived in 803. The grievor

- 3 -

did not wish to get involved and simply continued past Mr.

Ferguson with a comment to the effect of "cool it" or that it

was none of his affair. Mr. Ferguson, however, pursued the

grievor into the party room, angry and bent on a confrontation

(although a good deal smaller than the grievor). The grievor

continued to work behind the bar, setting it up, and again

attempted to iqnore Mr. Ferguson, but Mr. Ferguson became

increasingly agitated and abusive, with every third word or so.

being the "f" word, and shouting at the grievor that he had no

right to give the police false information (Mr. Ferguson, as it

turned out, was ngtthe man the police were pursuing). At the

other end of the room were senior-aged friends of the grievor's

father-in-law who were setting up the music for the party, and

the grievor acknowledges that he was becoming increasingly

concerned about the disruption and discomfort being caused by

Mr. Ferguson, and more specifically with getting Mr. Ferguson

out of there and allowing the preparations for the evening to

proceed. Mr. Ferguson refused to leave, however, saying to the

grievor that it was his building as much as the grievor's. ~e

grievor responded by advising Mr. Ferguson that the grievor'.

mother-in-law had obtained a permit for the room that night,

and that as her agent he was asking Mr. Ferguson to leave under

the Trespass Act. That did little to settle Mr. Ferguson down,

and he loudly reiterated that the grievor had no right to give

false information to the police. At that point the grievor

- .. -

pulled out his badge and explained to Mr. Ferguson that he was

himself a police officer. That only caused Mr. Ferguson to

become even more angry still. The grievor again asked Mr.

Ferguson to leave, but Mr. Ferguson made it clear that he had

no intention of doing so. At that point the qrievor came out

from behind the bar and raised his arm to take control o~ Mr.

Ferguson and escort him out of the party room. Mr. Ferguson

pushed the grievor in the chest, causing the qrievor to stumble

backwards against the wall. The grievor regained his balance

and began escorting Mr. Ferguson out by the back of the shirt.

Mr. Ferguson spun out of his grasp, however, and.the grievor

had to put him in a police hold to get him the rest of the way

out of the room. In the lobby the grievor encountered the wife

of the superintenden~, and asked her to see if any police

officers were still on the premises. There was in fact a squad

car still in attendance, as the grievor had anticipated, and he

was able to turn Mr. Ferguson over to a Constable peconi who,

with the grievor's assistance, managed to get an irate Mr.

Ferguson into handcuffs. The conclusion to the incident is

described in the transcript of Constable Peconi's testimony at

trial in the following terms:

A. I spoke to Schofield, got his side of thestory. He left. Then I took Mr. Ferguson out of thecar, took the handcuffs off him, got an explanationfrom him, and based on what both parties told me, Iadvised Ferguson that if he wanted to lay any chargeregarding an assault, he could do so through a

.'

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Justice of the Peace. I later attended and toldSchofield to do the same thing. I just didn't feelthat I bad anything to go on at the time.

The grievor did not, however, lay a charge of bis own, but

rather followed the matter up with a telephone call to the

Staff sergeant of the Division, after which an assault charge

was in fact laid against Mr. Ferguson through the Division.

short time after that a charge of assault was laid by Mr.

A

Ferguson against the grievor.

The two charges were heard together, and the judge in

fact entered a guilty verdict against both men. The grievor

was given a conditional discharge, and Mr. Ferguson an absolute

one. The grievor appealed his conviction, and was successful

in having it thrown out, with no reasons being given. The only

other fact that needs mentioning is that the grievor became

involved in a dispute with another of the building's residents,

the assistant superintendent Mr. Clarke, at the end of his

father-in-law's retirement party that night, and in fact that~

second indivi~ual attended with Mr. Ferguson before a Justice

of the Peace and the two charges were lai~ against the grievor

at the same time. The charge laid by Mr. Clarke, however, was

thrown out by the judge of first instance.

The Association on behalf of the grievor asserts that

a police officer's responsibilities do not necessarily cease by

the mere fact that he or she is "off duty". Apart from the

common-law duties upon a police constable, Mr. Roland for the

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Association points to a number of provisions in the statutes of

ontario in supPort of that proposition.

Police Act, for example, provides:

section 57 of the

The members of the police forces appointed underPart II, except assistants and civilian employees,are charged with the duty of preserving the peace,preventing robberies and other crimes and o~fences,including offences against the by-laws of themunicipality, and apprehending offenders, andcommencing proceedings before the proper tribunal,and prosecuting and aiding in the prosecuting ofoffenders, and bave generally all the powers andprivileges and are liable to all the duties andresponsibilities that belong to constables.

And section 56 provides:

Every chief of police, other police officer andconstable, except a special constable or a by-lawenforcement officer, has authority to act as aconstable throughout ontario.

As well the oath of office set out in section 66 of the Act

provides:

66.-(1) Every person appointed to be a cbief ofpolice, other police officer or constable sballbefore entering on the duties of his office, andevery special constable when thereunto required, takeand subscribe the following oath:

I, , do swear that I will welland truly serve Her Majesty the Queen in tbeoffice of constable (or as the case may be) forthe of without favouror affection, malice or ill-will, and that, tothe best of my power, I will cause the peace tobe kept and preserved, and prevent all offencesagainst the p~rsons and properties of HerMajesty's subjects',and that, while I continue

- 7 -

to hold the said office, I will, to the best of.y skill and knowledge, discharge all theduties thereof faithfully according to the law.So help me God.

C.D.Sworn, etc.

The grievor, -counsel therefore submits, was in fact under ~

dYtX to render whatever assistance he felt he could when.he

witnessed the chase scene from his balcony, and clearly was

acting in good faith when he identified the man he knew as

"Craig" as a possible suspect. And it was from that execution

of his duties that all of the trouble stemmed: it was Hr.

Ferguson's anger over that that caused hi. to challenge the

grievor in the party room, and that subsequently caused him to

lay the false charges against which the grievor had to defend

himself. Hr. Roland argues that it is all a question of causal

connection, and the sine QUa non for Mr. Ferguson being in the

party room and all of this happening was the prior execution of

the grievor's duties. In that latter regard the Association

refers in particular to MetrQpolitan Board of Comm1§!Joners of

Police (the "Moffatt" case), a decision of arbitrator Swan

released January 12, 1987; application for judicial review

dismissed by Divisional Court February 25, 1988.

Hr. Hines on behalf of the Board recognizes that

Article 23.01 &AD apply to an officer acting while off-duty,

but notes that that is not the obvious situation contemplated

by the provision, and there is an onus on such a claimant to"

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show that his conduct did in fact fall within the section.

When off duty, Mr. Hines notes, there is a much greater

possib~lity that the policeman was acting not out of a sense of

public duty, as a peace officer, but rather as a matter of

convenience in advancing his own personal interest. That, Mr.

Hines submits, is exactly what occurred in the present case,

and in support of that conclusion he points, for example, to

the fact that the grievor's involvement with the other police

officers had completely ended by the time the situation arose

in the party room, that the grievor concedes that his primary/

concern at that point was the orderly progression of his

father-in-Iaw's party, that there were other policemen on the

premises whom the grievor could have gone to to effect the

arrest, and that the grievor showed such a keen interest in the

follow-up of the charges once the arrest had been completed.

In sum, Mr. Hines submits that the grievor could ADd disi do

what he did as a private citizen, with his own sense of

grievance, and that the last thing on his mind that evening was

to "bring a wrong-doer to justice", in the interest of the

public. Mr. Hines submits that the "Moffatt" case is not good

law after the treatment of it by the Divisional Court, and that

even if one were to accept Mr. Roland's unlimited "causal

connection" theory, there was here a total break between the

grievor's duty-related intervention in the chase and the events

in the party room giving rise to the charge; it simply cannot

- 9 -

be said, Mr. Hines submits, that the grievor's intervention led

in any way to the scuffle and the charges.

The language now befo~e me has, it should be noted,

some history at arbitration as well as before the Courts, and

that history must be given consideration to at the outset. In

a case involving the same language in the collective agreement

of the Hamilton-Wentworth Reqional Board of commissioners of

police, a decision released March of 1989, the grievor had just

joined the Vice Squad, and was required to successfully defend

criminal charges arising out of his decision to participate

with his fellow officers in the practice of "winding down" at

the end of a shift by consuming confiscated alcohol.

Arbitrator Langille, in awarding legal indemnification, found

himselt persuaded on the evidence that the actions of the

grievor in engaging in the practice arose out of a good~faith

desire to be accepted and perform as a member of the Vice

Squad.

In the "Moffatt- case itself, referred to above,

supervision had been unable to locate the grievor while on

patrol-car duty on New Year's Eve, and in light of the

grievor's manner and appearance when he did show up at the

station, directed him to take a breathalyser test; the grievor

refused. The section ot the criminal Code under which a charge

was consequently laid against the grievor was that of refusing

a demand to provide a breath sample when reasonably suspected

- 10 -

of having alcohol in the body while in "care or control of a

motor vehicle". The grievor was subsequently acquitted of that

charge, it would appear on the basis of the trial judge

accepting a defence that the refusal was prompted and justified

by a ~ ~ conc~rn over use of the breathalyzer in

potential disciplinary proceedings under the Police Act.

learned arbitrator upheld the claim ,forindemnification,

~e

effectively on the basis advanced by the Association that the

only reason the qrievor had had care or control of a motor

vehicle that night, and thus became liable to that particular

charge, was because of the good-faith assumption of his

patrol-car duties in the first place. Arbitrator Swan, after

'-noting that he himself had been the author of the

indemnification lan~age in dispute through the course of an

earlier interest arbitration, stated his reasoning as follows,

at pages 21 to 24:

In these circumstances, I think the properapproach to take is to apply the wording of the.section strictly. To engage in any purposiveanalysis, or any more creative interpretation of theprovisions at this stage would run the risk ofrewriting the provision to accommodate, by way ofhindsight, concerns which were not raised at the timeof the interest arbitration itself.

The first factor to be assessed is whether thecharges arose out of the attempted performance ingood faith of constable Moffatt's duties. In thisregard, .1was urged by counsel 'for the Employer totake a broad view of the circumstances out of whichthe offence arose. With respect, I do not think thatI can properly do that in the absence of any clearevidence as to what those circumstances were.

- 11 -

The charge laid against Constable Moffatt couldonly be laid against him because had the care andcontrol of a motor vehicle at the time of hisconfrontation with Sergeant Leach. Even if I couldconfidently infer from all of the evidence before methat Constable Moffatt had consumed alcoholicbeverages during his shift, the consumption ofalcoholic beverages would not, of itself, make himliable to the charges laid against him As long ashe did not operate a motor vehicle, he was not liable'to a demand for a sample of breath, and thus couldnot commit a criminal offence by refusing to provideit.

-

Therefore, the specific act out of which thecriminal charges arose for Constable Moffatt was hisoperation of scout car 5214. That was a dutyassigned to him on that night, and the circumstancesof the case before me are not sufficient to suggestthat his performance of that particular part of hisduty, being in the care and control of scout car 5214at about 7:24 a.m., was undertaken other than in goodfaith. Had Constable Moffatt's ability to drive thatvehicle been impaired, or had he been shown to have ablood-alcohol level greater than 80 milligrams ofalcohol in 100 .illilitres of blood, I might take adifferent view of this situation. But Sergeant Leachhimself assessed Constable Moffatt'. condition, andcame to the conclusion that he did not havereasonable and probable grounds as required undersection 235(1) to believe that Constable Moffatt waseither impaired or had such a blood-alcoholconcentration. He felt himself limited to areasonable suspicion that constable Moffatt had"alcohol in his body., which permitted him to invokethe provisions of section 234.1(1) of the Code. Theonly witness who suggested that Constable Moffatt'sbehaviour indicated the influence of alcohol wasInspector Duncan, and it i. of importance to observethat he only saw Constable Moffatt much later, at atime when Constable Moffatt was becoming quitebelligerent in relation to his supervisors.

On all of the evidence before me, therefore, Ican only conclude that the Employer has failed todemonstrate that Constable Moffatt was performingthose parts of his duty which exposed him to thecriminal charges here at issue in a way which wasother than in good faith.

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In coming to that conclusion, I do not wish tosuggest that I think much of the way in whichConstable Moffatt performed on the occasion inquestion. Indeed, there i. no doubt that his conductwould properly lead hi. supervisors to expressdispleasure with his conduct simply for hisinattention to his obligations on that evening,regardless of whether or not he had also consumedalcohol. But none of that exposes hilato criminalcharges, the criminal charges arise only from thefact that he was operating the patrol vehicle towhich he was assigned.

On the application for judicial review, Craig, J. held that the

decision of the arbitrator was not patently unreasonable, and

accordingly ought to be deferred to. Rosenberg, JO.,

dissenting, appeared to explicitly reject the kind of "but for"

test underpinning the award, and noted that the charaes arose

not out of the fact of the constable having in good faith

accepted care or control of the patrol car, but out of the

refusal for his own purposes to submit to a breathalyzer.

Campbell, J., finding himself unable to choose between the

reasons for judgment put forward by his two brother judges,,

joined in the dismissal of the review application in the

following terms:

Although I think the arbitrator was wrong thejudgments of Craig and Rosenberg JJ., are almostequally persuasive, and I would therefore dismiss theapplication. The logical force of each judgmentdemonstrates that the words of article 23.01 whenapplied to the arbitrator's findings might reasonablybear more than one meaning.

- 13 --'

Finally, in a case which provides the closest

parallel to the facts before us here, there is the decision of

arbitrator P. Picher in MetroDotjtan Toronto Board of

commissioners of Police (the "Denning" case) released

November 13, 1985. The grievor had just gone off duty and was

driving his mother's car home in heavy traffic. While stopped

at a stoplight, the grievor's car became blocked from advancing

by a taxi that was trying to nudge out from a parked position. .

Neither vehicle could move forward in the circumstances, and

each driver began shouting at the other to pull back. Finally

the taxi-driver threw open hi~ front door, banging the side of

the grievor's car with considerable force and causing what

turned out to be some $195 in damage. Tbe taxi-driver, a Mr.

Rattle, was smirking as he emerged fro. bis car, and the

grievor got the clear impression that the striking of his car

door had been deliberate. The timing of events at that point

was very much in dispute at arbitration, but the arbitrator

concluded that the grievor, after emerging from his own car to

survey the damage, identified himself as a police officer and,

placed his hand on the shoulder of Mr. Rattle in the course of

arresting him for "mischief to private property". From there a

scuffle ensued out of which each combatant brought charges of

common assault against the other. The grievor ultimately was. .

acquitted, while Mr. Rattle in a separate trial later was

convicted of the assault charge, and acquitted on the property

charge.

- 14 -The position of the Board of Commissioners there, as

here, was that the arrest by the grieving officer was

unnece~sary and effectively an abuse of his status as a police

constable, arguing that "no man ought to be a police officer

in his own cause unless there is simply no other way to handle

a particular law enforcement problem". At page 35 of the award

the position of the employer is further noted as follows:

~

Counsel for the Board acknowledged that P.c.Denning was not pUrPOrting to make a citizen's arrestand thus was not acting as a private citizen when haarrested Mr. Rattle. As testified by StaffSuperintendent Wright, police officers have wide andvaried powers which they can exercise at any time,whether on or off duty. Superintendent Wright notedthat off duty officers are normally expected to takeaction if they observe the deliberate commission ofan offence. The fact that P.C. Denning was off dutyat the time of the arrest then does not, ipso facto,cast him into the mould of a private citizen andpreclude his entitlement to indemnification.

However, it is the position of counsel for theBoard that P.c. Denning was still acting as a privatecitizen and had not even attempted to invoke hispolice powers when the alleged assault for which hewas charged arose.

The conclusion of the arbitrator was as follows:

That characterization of the evidence, however,has not been accepted by the arbitrator, as reflectedin the findings of fact heretofore made. For reasonsset out above, following a full review of both theevidence contained in the transcript and the evidencegiven at hearing, the arbitrator concluded above, onthe balance of probabilities, that P.C. Denninginvoked his powers as a police officer shortly afterhe got out of his car to look at the damage to hiscar door. He was convincedthat Mr. Rattle had

- --------- -. -----

..

- 15 -

intentionally inflicted damage to his car door. Thearbitrator found, on balance, that it was at thatpoint, and while Mr. Rattle was acting in anaggressive and bostile manner, that he identifiedhimself as a police officer and informed Mr. rattlethat he was under arrest for mischief--privateproperty. In accordance with established policeprocedure, be then placed his hand on Mr. Rattle'sshoulder to take the control required for effectingan arrest. As further set out above, the arbitratorconcluded, on the balance of probabilities, that itwas at that point, when P.C. Denning tried to takecontrol, that Mr. Rattle resisted and the two becameinvolved in the physical altercation fro. which thecharge of common assault arose. Given these findingsof fact, it must be concluded that the actionsleading to 'the charge of common assault occurrecl

after p,c..Denning invoked his powers as a policeofficer. Accordingly, I find that the actions givingrise to the charge in relation to which P.C. Denningseeks indemnification were not the actions of aprivate citizen but the actions of a police officer.

./ Commenting on the indemnification provision in

Article 23 generally, Ms. Picher, as the employer is quick to

point out, had this to say, at page 5 of her award:

At the root of the article 23 legalindemnification provisions, just as with itspredecessor provision in section 24(6) of The PoliceAct, is the recognition that the nature of the dutiesperformed by police officers exposes them to a higherrisk of unreasonable, malicious or frivolousprosecutionsthan ordinary citizens. I The legal.indemnification provisions are designed to protectpolice officers against the risk of legal actiontaken against the. for acts done in the ordinaryperformance of their duties.

As noted, however, it is recognized that there may be

situations where it is appropriate for the section to apply

beyond those most immediately contemplated. It was

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acknowledged by the Board of Commissioners in the Denning case,

as it is before me, that circumstances mAl arise, for example,

where even an off-duty constable may be entitled to the

protection of the clause. The employer agrees, for example,

that an off-duty co~stable witnessing a crime or a fugitive on

the run would be fully entitled to this special protection if

involved in a good-faith effort to apprehend the criminal.

Where the "arrest" arises out of a situation involving the off-

duty policeman's own private affairs, however, Mr. Hines argues

that great care must be taken to ensure that the clause is

applied for the purposes for which it was originally intended,

and I agree. The ~~stion, it seems to me, is one of. ,~

'.W'e "",..,,'-'-'".."."...,--,-""",~~-,,~'

remoteness, or in line with the term:rnoiogy used by both',";:"'J,'k"""'~~~~~A-~'L.~c.'

counsel in tJ)e -9Q1Jr!S~Lq,(._o~~~eJ1t,. _.~_f-c:a':ls~~~.9c:>.nn~-9t:.ion",b~~~een'~--"'.,. """'''-. ""~~"'d "~""""""""":""'~'~ "..

the execution of .~__~J)olice..du~y' and the actio~ Cli!i!1g rise to..-~,.._, '"""""-",,,",,~~-~-,.: ~." ;;J>-"

the charge that the officer becomes called upon to successfully~~. ~ -

defend.

In saying that, however, I must say that I.have some

difficulty with the sine qua non or "but for" test put forward

by Mr. Roland, and I do not believe that quite that broad an

approach can be said to be alive and well on the basis of the

combined judgments of the Divisional Court in the "Moffatt"

case. Nor in considering the application of this Article do I

think it is particularly instructive, nor conducive to

harmonious labour relations, to look to see whether the

- 17 -

employer has brought charqes against the police officer to

buttress its denial of the claim -- at least where the issue is

not sought to be crystallized by the employer around section

(~) of Article 23.

~.~ ~. believe .each .case Qome8 down to, as indicated

earlier, ,~s not a matter of "causal connection- alone, in terms

of the exercise of a "police duty- being one link in a chain of

events that lee!to an unsuccessful charge, but .----.....

w(l1:1 ot:lia t'..1icStenes.':~~ot:'tth.t'~¥erQi8. ~fro. _:th..~~tg'1.,):~QndQ.C)

whtc:k 'oned', tbe:,'tltibj.ot/'ait€er ot tn.'. Obarge.' ;JI) ,s,sessing

the facts before me, it would seem that the "Denninq" case

would form a rather close parallel with the present case even

if all that happened was the loud and aggressive behaviour in

the party room, together with the refusal of Mr. Ferguson to

leave the area in response to a request on behalf of the

licensee. But I do not have to decide whether the test as I

see it would leae!to the same conclusion as that in "Denninq"

on such facts, because clearly the present case inv~lved

considerably more than that. The altercation between Mr.

Ferguson and the grievor did not have its source in simply a

private dispute involving the two. On the contrary, as Mr.

Roland submits, the tact that Mr. Ferguson was harassing the

grievor; and refusing to leave hi. alone in the party room, was

directly and 801ely linked to the earlier performance of the

grievor's duty as a police officer as the grievor in good faith

- 18 -

had seen it. That was the action of the grievor in

interrupting his afternoon at home to provide whatever

assistance he could to the on-duty officers involved in the

pursuit of the fugitive, including the provision to the

officers of a "lead" with respect to a gentleman living in the

building and fitting the physical characteristics of the

fugitive. The grievor's connection with the "fugitive" episode

might well have ended there. Contrary to Mr. Hines' submission,.

however, the fact is that, through no fault of the grievor's, it

did not. Whether through the action of the other police

officers, or however it may have happened, Mr. Ferguson was able

to identify the grievor as the source of the "information given

against him, and it was that and that alone which caused Mr.

Ferguson to be in the party room accosting the grievor later,

refusing to leave when asked, and generally disturbing the

peace. Given Mr. Ferguson's persistent conduct, the grievor was

entitled to invoke the law and those responsible for its

enforcement to have Mr. Ferguson removed, and I accept as not

unreasonable in the circumstances the grievor's explanation that,

while he could have gone looking for another Police officer

immediately, it made more sense that he, being there and being a

police officer himself, take control of Mr. Ferguson on his own

until the closest on-duty police officer could be reached and

Mr. Ferguson be given into his custody. And in carrying out the

action that he did, the ultimate dismissal of Mr. Ferguson's

- 19 -

charge has to be taken as a deteraination that the grievor used I

no aore force than vas necessary in the circumstance..

Considering all of the facts, therefor., I am of the viev that

indemnification under the section is appropriate in the case

here before me.

The parties have, I should note, drawn .y attention

to the fact that the statement of account submitted by the

grievor's legal counsel includes not only the cost of

successfully defending the charge against hi. by Mr. Ferguson,

but that brought by Mr. Clarke as well. The Association does

not suggest that compensation is payable under the collective

agreement vith respect to this unrelated charge, and I leave it

to the parties, as suggested, to attempt to agree upon the

portion of the account properly attributable to the Ferguson

charge. As agreed, I vi1l remain seized of the matter in the

unlikely event the parties are unable to resolve this quantum

issue on their own.

Dated at Toronto this 28th day of February, 1990.

~~M. G. Mitchnick, Arbitrator