Cst A v Edmonton Police Service, 2015 ABQB 697

Court of Queen ’ s Bench of Alberta Citation: Cst A v Edmonton Police Service, 2015 ABQB 697 Date: 20151130 Docket: 1403 03984 Registry: Edmonton Between: Cst. A Appellant - and - The Chief of the Edmonton Police Service and the Law Enforcement Review Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ [ 1 ] Constable A has applied for judicial review of her dismissal.

She has proceeded through the process for police discipline in Alberta mandated by the Police Act , RSA 2000, c. P-17. That legislation mandates the roles of the Chief of Police, the presiding officer, the Law Enforcement Review Board (“LERB”) and the Court of Appeal. [ 2 ] The role of the Court of Queen’s Bench in the discipline process is neither referred to nor defined in the legislation. The application before me raises the following issues: 1. The role, if any, that the Court of Queen’s Bench of Alberta has in this process;

2. If there is such a role, whether that, in this case, should be exercised; 3. Then what principles govern the review jurisdiction. [ 3 ] It is trite for me to note that the issues raised in No. 2 and 3 above have been before the courts for a very long time and issues such as standard of review have evolved, not only over time, but significantly over the last decade. All counsel who appeared before me in this application were well versed in this area of the law and in the legislation that governs this constable’s discipline process.

All counsel were prepared to discuss the second issue in detail as, in the words of Mr. McDonough, on behalf of Alberta Justice as impacting the issue of scope of the right of a constable to appeal an officer or a Board decision. I quote Mr.

McDonough’s submission that, relating to the first issue: “The answer to this question may turn on whether the reasonableness of the Board’s decision that the presiding officer’s decision was reasonable raises a question of law.” [ 4 ] All counsel were prepared to concede that as the role given to the Court of Appeal by the legislation is limited to questions of law and that the absence of any express role for the Court of Queen’s Bench in the statutory scheme does not in and of itself preclude judicial review: Buckley v EntzEstate , 2007 ABCA 7 .

There, the Court of Appeal stated a right of appeal to the Court of Appeal did not preclude judicial review on grounds not covered by the right of appeal. [ 5 ] Then there is an issue of the characterization of the nature of the question raised at the Queen’s Bench level. That led the parties here to analogies of questions raised at the Court of Appeal level to that now being argued at the Queen’s Bench level. Mr.

McDonough, on behalf of the Department of Justice, notes that although some cases appear to accept that the reasonableness of an officer’s decision is a question of law, others would mandate that that is a question of mixed fact and law. [ 6 ] Mr. McDonough cautions the court not to conflate the issue of privative clauses with the right of appeal. [ 7 ] Mr.

McDonough argues that although there is a strong suggestion in Foster , Gateway Charters Ltd. (Sky Shuttle) v Edmonton (City), 2012 ABCA 93 and Milner v Power Inc. v Alberta (Energy Utilities Board) , 2007 ABCA 265 that the Queen’s Bench has no jurisdiction to review, that that does not in itself mean there is no such jurisdiction. Rather, that is a matter of impact on the Queen’s Bench’s judge’s exercise of discretion.

He refers to Justice Wakeling’s comments in Boychuk v Edmonton (Police Service) , 2014 ABCA 163 , that the Act provides for a comprehensive oversight of decisions even without a Queen’s Bench role. Further, that Furlong v Edmonton (Police Service) 2013 ABCA 359 , dealt with an issue of the characterization of the allegation and found that the Board did not probe facts and submissions sufficiently.

He notes that in other contexts Alberta courts have held that judicial review is available despite the presence of a right to appeal to the Court of Appeal and the absence of statutory recourse to the Court of Queen’s Bench when the issues raised by the case do not fall within the scope of the right of appeal. [ 8 ] Mr. Johnson on behalf of the Board, submits that the effect of the case law and the legislation is that whether the tribunal is asking itself the correct question is indeed a question of law.

However, he submits that when it comes to an answer to the same that that turns into a question of mixed fact and law. Accordingly, that is reviewable on a reasonableness standard by judicial review. This, he states is a matter obviously within the inherent jurisdiction of the Queen’s Bench rather than the statutory appeal jurisdiction granted to the Court of Appeal. [ 9 ] Mr. Nugent, on behalf of the Appellant, relies on the inherent jurisdiction of the Queen’s Bench to review decisions of administrative tribunals. He contrasts that to the lack of inherent jurisdiction of review of the Court of Appeal.

He also notes that the inherent jurisdiction of the Queen’s Bench exists even in the face of privative clauses. Further, that there is no privative clause in the Police Act . He urges that the starting point here is whether this court does have jurisdiction and submits that the mere existence of the right to appeal in the legislation to the Court of Appeal doesn’t oust the Queen’s Bench jurisdiction or change the discussion. He gives an analogy to Workers’ Compensation legislation where leave is legislated as being to the Court of Queen’s Bench.

He then states that starting with the premise that I do have jurisdiction that the question should then be is there some reason to decline it. He then agrees with Mr. McDonough that the characterization issue may affect my decision as to whether to exercise the discretion I have pursuant to jurisdiction. [ 10 ] He notes, as do others, that the Court of Appeal has not addressed the very issue before me and that therefore there is limited value to comments made by the Court of Appeal in various leave cases.

He further states that what is available is statements such as that of Justice Costigan in Malish v Edmonton (City) Police Service , 2005 ABCA 361 , that there are questions that can be reviewed that are not questions of pure law that go to the Court of Appeal. He urges me not to analogize limits on Court of Appeal review to those to be imposed on the exercise of my own jurisdiction. Here, he submits that the scope of review is not limited and subscribed.

Rather, it falls under the robust standard of review. [ 11 ] He submits that the case law indicates that the Court of Appeal is by the legislation and by its own inclination to rule on high level, pure question of law issues. He urges that, therefore, I should engage the issues here as: 1. Acknowledging that a jurisdiction of review exists outside the statutory review granted to the Court of Appeal; 2. That there are no counter-reasons, juridical or otherwise, that ought to persuade me from undertaking a Queen’s Bench review.

He notes that for me to determine if the Board’s decision was reasonable, that I in turn, have to assess the reasonableness of the original assessing officer’s decision. He notes that Buckley points to the principle that an accumulation of errors can make a decision unreasonable. He states that principle ought to be applied here. Further, that I should have regard to the fact that the type of analysis that ought to have been performed by the Board did not occur. [ 12 ] Mr.

Nugent, in his argument, then submits a detailed analysis of the officer decision and notes that an accumulation of errors at that level and by the Board can make the reviewing judge determine that the decisions made were unreasonable.

[ 13 ] I find that the issue is whether the legislation allows for judicial review by the Court of Queen’s Bench of factual issues and those of mixed fact and law. All of the counsel before me pursued those issues as outside the scope of the provision to allow appeal from the LERB directly to the Court of Appeal. [ 14 ] The parties here all submitted that the absence of any express role for the Court of Queen’s Bench in the statutory scheme does not in and of itself preclude judicial review. As noted by Mr.

McDonough for Alberta Justice, Alberta courts have held that judicial review is available despite the presence of a right of appeal to the Court of Appeal and the absence of statutory recourse to the Court of Queen’s Bench when the issues raised by the case do not fall within the scope of the right of appeal. [ 15 ] In my view, the decisions of Watson, JA and Wakeling, JA in Zalaski v Alberta (Law Enforcement Review Board) , 2013 ABCA 347 and Boychuk v Edmonton (Police Service) , (supra), not only suggest that the exercise of review should be used sparingly but confirm, as does the legislation, that the Act gives no role to the Queen’s Bench.

Wakeling, JA in Boychuk stated: The Act gives no role to the Court of Queen’s Bench...the Act is implicitly stating that the legislature recognizes that intervention will be infrequent and only when the institutional apparatus an appellate court represents will provide a significant benefit to the community. [ 16 ] The Appellant here argues that errors of fact and mixed fact and law have not been identified or included in the appellate role of the Court of Appeal in the legislation.

Thus, that is, by that omission an opening for the jurisdiction of the Court of Queen’s Bench. [ 17 ] The problem I have with this submission is that errors of fact alone do not constitute a basis for overturning (in this case) an administrative board’s legal decision. Surely, the success of any argument on error of fact has to be a conclusion that such constituted an error of law or jurisdiction.

Then, in terms of remedy, such allegations of error of fact can only be significant in the process were they to result in conclusions of error in law or jurisdiction that affect the result. [ 18 ] Again, that raises the issue that what is sought here is a finding that the reasonableness of the Board’s decision that a presiding officer’s decision was reasonable. I cannot characterize that as a pure issue of law.

It is closer to a mixed issue of fact and law. [ 19 ] I am also not impressed with the suggestion that the Queen’s Bench, in answering the question whether the application falls within the scope of the statutory right of appeal, should answer it on the basis of examining the reasonableness of the Board’s decision that the presiding officer’s decision was reasonable. That is that the answer will determine whether a question of law, properly subject to Court of Appeal review, has been raised.

In my view, that line of reasoning completely skips the very legislation that, in the words of Wakeling JA in Boychuk (supra), was crafted to limit the appeal process. That is, that the Legislature specifically chose a process of review that did not include the Court of Queen’s Bench of Alberta. [ 20 ] The parties before me acknowledged that there was not a lot of consideration of this issue at Queen’s Bench or Court of Appeal level.

I am of the view that the legislation occupies the whole field of rights regarding discipline process of an individual police officer, all culminating in a direct appeal from the LERB decision to the Court of Appeal of Alberta. I find that I have no jurisdiction on the facts here to review the decision of the LERB. As a result, I find no need to examine issues of scope of review and a standard of review. I dismiss the application. If I am incorrect in my conclusion regarding the very presence of any jurisdiction at the Court of Queen’s Bench level, then I decline to exercise my jurisdiction.

The LERB itself does not select a penalty. Rather, it reviews the presiding officer’s penalty decision for reasonableness. On the facts here, the Applicant is urging me to find that singly or cumulatively in reviewing the presiding officer’s decision, the Board made errors. However, keeping deference in mind and the LERB’s decision as a whole within context it does not appear to me to have fallen outside the range of acceptable outcomes. Heard on the 27 th day of January, 2015. Dated at the City of Edmonton, Alberta this 30 th day of November, 2015. D.A. Sulyma J.C.Q.B.A. Appearances:

Patrick Nugent & Tamara Friesen, Nugent Law Office for the Appellant, Cst. A. Simon Johnson, Bennett Jones LLP for the Respondent, Chief of Edmonton Police Service Sean McDonough, Alberta Justice & Solicitor General for the Respondent, Law Enforcement Review Board