Davis alleges Police Board withheld substance of allegations against him

The suspended Sarnia police chief says the Board withheld the substance of allegations against him and alleges Kelly Ash told him it was filing a LECA complaint despite knowing the agency would not accept it. Ontario’s rules are more complicated: misconduct investigations, workplace-harassment investigations, internal disclosures and provincial police oversight operate through distinct but sometimes overlapping processes.

Suspended Sarnia police chief Derek Davis says the Police Board withheld the substance of allegations involving workplace harassment, his private consulting business and the alleged tracking and monitoring of media personnel and an outside law-enforcement officer.

His July 22 Notice to Arbitrate alleges the Board failed to provide processes required by Ontario’s Community Safety and Policing Act and its own policy governing allegations against a chief or deputy chief.

Whether those processes applied, however, depends partly on what kind of investigation was underway.

That distinction appears in Davis’s own correspondence.

In a May 28 letter, his lawyers said they understood there were two investigations pending: one concerning workplace-harassment allegations following an April 30 meeting involving members of the Sarnia Police Association, and another concerning Davis’s secondary employment.

His lawyers specifically said they understood the secondary-employment investigation was being conducted under section 198(7) of the Community Safety and Policing Act, and asked the Board to provide the substance of the reason for that investigation under section 198(5).

Davis’s filing says the Board’s lawyer did not respond. His counsel followed up June 5.

Two days later, according to the Notice to Arbitrate, Board chair Kelly Ash advised Davis of another allegation: “it is alleged that you participated in or directed the tracking and monitoring of media personnel and an external law enforcement officer.”

Davis says the June 7 email did not provide the substance or source of that allegation. His filing alleges it originated with the Police Association.

By July 22, Davis alleged that he still had not received the substance of the supposed workplace-harassment complaint, the Association’s “general” allegations about his secondary employment or the monitoring allegation, and said he did not know the status of the investigations.

Davis says all of the allegations are without merit.

Section 198 of Ontario’s Community Safety and Policing Act governs investigations into possible misconduct or unsatisfactory work performance by police officers. When the subject is a chief or deputy chief, section 198(7) gives the police service board that investigative role and applies the section’s other requirements with necessary modifications.

For an investigation under section 198, the Act generally requires prompt notice of the substance of the reason for the investigation.

But that requirement is not absolute.

The Act permits notice to be withheld where, in the Board’s opinion, giving it might prejudice the misconduct investigation itself, a Part X public-complaints investigation, a criminal investigation or a prosecution.

For any investigation the Board was conducting under section 198, Davis therefore had a statutory entitlement to prompt notice, subject to that exception.

The available record does not establish that every investigation involving Davis was being conducted under section 198, or whether the Board relied on the prejudice exception when information was withheld.

That distinction matters particularly for the workplace-harassment investigation.

Ontario’s Occupational Health and Safety Act separately requires employers to ensure that an investigation appropriate in the circumstances is conducted into workplace-harassment incidents and complaints.

Ontario’s workplace-harassment Code of Practice says that obligation can arise from a formal complaint, an informal complaint or simply because the employer otherwise becomes aware of an alleged incident. A written complaint under the Police Board’s internal misconduct policy is therefore not necessarily required before an employer investigates workplace harassment.

The same Code says that under its approved model for complying with the OHSA, the investigator must thoroughly interview the alleged harasser and give that person an opportunity to respond to the specific allegations. The Code is one approved means of complying with the Act rather than the only permissible procedure, and failure to follow it does not by itself establish an OHSA breach.

The public record does not establish what stage the Marshall Workplace Law investigation had reached or what particulars may subsequently have been provided to Davis.

The Police Board also has a separate internal policy governing disclosures of alleged misconduct by its chief or deputy chiefs.

Policy SPS-BP-AI-029 says a member or former member may disclose alleged misconduct to the Board. Complaints under that process are to be written, addressed to the chair and supported with as much detail as possible.

The chair is to consider whether urgent action is required and consult legal counsel about how to proceed, including whether the Board should investigate or refer the matter to an outside investigator. The policy also contains confidentiality protections and permits disclosures to the Inspector General in specified circumstances, including where someone believes using the Board process would be inappropriate.

Davis relies on the policy and alleges it was not followed. But its internal misconduct procedure does not replace the Board’s separate responsibilities as an employer under workplace-safety law.

The role of Ontario’s Law Enforcement Complaints Agency adds another complication.

Davis alleges Ash told him on May 18 that the Board was “filing a complaint” with LECA concerning allegations raised by Association members.

His filing alleges Ash knew LECA would not accept such a complaint from the Board or otherwise act on it, and says the agency had advised her of that less than three weeks earlier.

He makes a similar allegation after describing the June 7 monitoring allegation.

Those allegations have not been adjudicated, and the application record does not contain the Ash–LECA communications needed to establish what Ash asked the agency to do or what LECA told her.

Ontario law does confirm that there are limits on the ordinary public-complaint process.

Under Part X of the CSPA, a member of a police service cannot make a public complaint about another member of the same service. A member or employee of a police service board is similarly barred from making a Part X complaint about a member of the service maintained by that Board.

But an ordinary public complaint is not the only way information can reach LECA.

If someone who is eligible to make a public complaint submits it to a police service board instead of directly to LECA, section 155 requires the Board to forward it to the Complaints Director. The complaint remains that person’s complaint; the Board is only forwarding it.

That route does not make an otherwise ineligible complainant eligible, and the public record does not establish whether section 155 was what Ash was referring to.

There is also a separate statutory notification process.

Under section 197(2), a Board must notify LECA’s Complaints Director in prescribed circumstances when it becomes aware that its chief or deputy chief may have engaged in misconduct.

Ontario Regulation 406/23 requires the Board to reasonably suspect both that the conduct constitutes misconduct and that it was directed at, or otherwise directly affected, a member of the public who would be eligible to complain.

LECA’s own guidance says Boards should not use that notification process for internal employment-related grievances or complaints by members of the same service against their chief or deputy chief unless the matter directly involves a member of the public.

Its current Rules of Procedure also contemplate self-initiated investigations arising from statutory notifications or other information. LECA does not therefore require an ordinary public complaint before it can investigate every potential misconduct matter.

A qualifying notification can also affect what happens next. LECA’s guidance says section 208 generally prevents a Board from conducting its own section 198 investigation into the same matter, imposing discipline or applying for a disciplinary hearing until the Complaints Director makes the required determination.

That restriction is expressly framed around section 198 investigations and the CSPA disciplinary process. The available record does not establish what effect, if any, a LECA notification had on a separate workplace-harassment process under the OHSA.

The court record also does not establish whether Ash made a qualifying section 197 notification, whether someone else made an eligible complaint that the Board forwarded, or whether Ash attempted to use the ordinary public-complaint process herself.

That uncertainty is central to Davis’s allegation.

His description that the Board was “filing a complaint with LECA” does not establish which legal mechanism was actually being used.

Ontario law confirms that Board members and employees cannot use the ordinary Part X complaint process against members of their own service. It does not establish Davis’s broader allegation that LECA could not otherwise receive or act on information coming from the Board.

Davis has asked an arbitrator to order disclosure of communications between Ash, the Board or anyone acting on their behalf and LECA.

Until those communications are public, what occurred between the Board and the provincial complaints agency cannot be determined from the application record.

The Board’s July 23 response provides some additional context but does not resolve Davis’s notice argument.

Ash wrote that there were “ongoing investigative processes that have not yet concluded,” specifically referring to workplace and criminal investigations, and said arbitration should wait because parallel proceedings could ultimately be overtaken by their findings.

That explains why the Board considered arbitration premature. It does not say that the Board had previously withheld information from any section 198 investigation because it believed disclosure would engage the statutory prejudice exception.

The public record therefore does not establish whether that exception was invoked.

The Board has separately said it retained Marshall Workplace Law to conduct an independent workplace investigation and had legal counsel advising it throughout the process.

Davis says the Board denied him information and procedures required by law and its own policy.

The available evidence does not yet establish whether every required step was followed or whether any requirement was breached. What it does show is that the answer depends on distinguishing several different processes: section 198 misconduct investigations, workplace-harassment obligations under the OHSA, the Board’s internal disclosure policy, ordinary LECA complaints, forwarded complaints and statutory misconduct notifications.

Davis’s Superior Court application does not presently ask a judge to decide those underlying procedural disputes. It asks the court to appoint an arbitrator and direct that the arbitration proceed.

The application, originally scheduled for Aug. 20, has been adjourned on consent to Sept. 24.

About this reporting: This story is based principally on Davis’s July 22 Notice to Arbitrate and correspondence contained in his Ontario Superior Court application record, together with the Community Safety and Policing Act, Ontario Regulation 406/23, the Occupational Health and Safety Act, Ontario’s workplace-harassment Code of Practice, Sarnia Police Service Board policy SPS-BP-AI-029 and current rules and guidance published by the Law Enforcement Complaints Agency. Davis’s allegations that the Board breached statutory or policy requirements have not been adjudicated. The available record does not contain the Board–LECA communications necessary to establish what process was actually used or which statutory process applied to every matter described in the filing.

About the documents: Court documents linked in this story are publication copies prepared by The Sarnia Journal. Redactions are limited to signatures, direct contact information and private family or beneficiary information. No substantive filing content has been removed or altered.

Disclosure: Davis previously sued Nathan Colquhoun, The Sarnia Journal and Sarnia Media Group Inc. The action was discontinued with prejudice.