Lee v Alberta (Labour Relations Board), 2017 ABQB 482

Court of Queen’s Bench of Alberta Citation: Lee v Alberta (Labour Relations Board), 2017 ABQB 482 Date: 20170801 Docket: 1603 12868 Registry: Edmonton Between: Nikita Lee Applicant - and - Alberta Labour Relations Board, Edmonton Police Association, and Edmonton Police Service Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] The Applicant Nikita Lee applies for judicial review of the decision of the Alberta Labour Relations Board [ALRB or Board] that dismissed his complaint [the Decision] against the Edmonton Police Association [EPA] alleging that the EPA had failed in its obligation to fairly represent the Applicant, contrary to

section 37 (

d) of the Police Officers Collective Bargaining Act , RSA 2000, c P-18 [ POCBA ], and

section 153 of the Labour Relations Code , RSA 2000, c L-1 [ Code ]. [ 2 ] The EPA was the Applicant’s Union. The complaint to the Board related to the EPA’s handling of his termination by the Edmonton Police Service [EPS].

Background facts [ 3 ] In October 2008, the Applicant joined the EPS as a recruit constable. He became a member of the EPA bargaining unit who is subject to the collective bargaining agreement between the EPS and the EPA [Collective Agreement].

Article 8.02 of the Collective Agreement provides that all new employees of EPS are subject to a probationary period of 18 months. [ 4 ] On March 2, 2009, the Applicant submitted a letter of resignation, dated February 25, 2009, to the EPS. He submitted this letter under threat of dismissal by EPS. On or about the same day, the Applicant claims he spoke with Sergeant Hughes, a volunteer in the Employee and Family Assistance unit of EPS, who apparently contacted the EPA on his behalf.

The Applicant was given to understand that the EPA could not assist him because he was a probationary employee. [ 5 ] In June 2010, after he had been unsuccessful in obtaining employment with another police service, the Applicant contacted the EPA directly, requesting that the EPA file a grievance on his behalf in regard to events of 2008 and 2009, which led to his submission of the resignation letter. The Applicant met with Mr. Tony Simioni, who was then EPA President. Mr.

Simioni reviewed the information provided by the Applicant and confirmed that the Applicant’s “status as a probationary employee at the time of his dismissal, combined with the specific provisions of the [Collective Agreement] and the fact that the grievance was already 13 months beyond the filing date, prevented the EPA from challenging the resignation.” [ 6 ] In January 2011, the Applicant retained legal counsel.

He filed a statement of claim on February 18, 2011, against EPS Chief Boyd and other EPS members seeking damages arising from the loss of his employment with the EPS. [ 7 ] On April 30, 2015, an application to strike the Applicant’s claim, brought by the EPS, was heard by the Master in Chambers. The EPS was successful. The Applicant filed an appeal of the Master’s decision. [ 8 ] On March 4, 2016, the appeal was heard and dismissed by Justice Gill of this Court.

Justice Gill held that the dispute arose out of the employment of the Applicant by the EPS, which was governed by the Collective Agreement, and that “many, if not all, of the issues raised in the statement of claim were grievable under ... the [Collective Agreement].” [ 9 ] Following the appeal dismissal, the Applicant wrote to the EPA on March 14, 2016, requesting it to file a grievance on his behalf. On March 19, 2016, the President of the EPA, Mr.

Brodeur, sent an email to the Applicant advising him that, after obtaining a legal opinion, the EPA “was unable to assist due to the time that had passed since his resignation, but largely due to s. 8.02 of the [Collective Agreement], which allowed EPS to terminate the employment of probationary employees at will”: EPA Written Brief, para 13. [ 10 ]

Article 8.02 of the Collective Agreement states: The appointee referred to in 8.01, shall serve a probationary period of eighteen (18) months which shall commence on the date of appointment.

At any time during the probationary period, the appointee may be released should the Chief of Police or other executive officer so determine and such release shall not be the subject of a grievance. [ 11 ] On March 31, 2016, the Applicant filed a complaint with the ALRB, alleging that the EPA had breached its obligation to fairly represent him, contrary to the Code , s 153. [ 12 ] On June 22, 2016, the ALRB dismissed the Applicant’s complaint, based on s 16(2) of the Code under which the Board may refuse to accept a complaint made more than 90 days after the complainant knew, or ought to have known, of the action or circumstances giving rise to the complaint. [ 13 ] In its Decision, the Board noted that: i.

The Applicant’s “employment ceased by late February/early March 2009” (para 4) ii. The Applicant “knew the Union would not be taking any steps to challenge his termination in February/March of 2009. At least seven years have passed since that time” (para 12); iii. The Applicant “retained [and had the benefit of] his own counsel on January 14, 2011” (paras 7, 12); iv. “[T]he delay here is extreme” (para 12); and v.

Based on the ALRB’s previous jurisprudence, which “provides significant guidelines with respect to the application of the 90 day time limit in subsection 16(2),” the decision by the Applicant “to pursue other legal avenues is not an extenuating circumstance”: (paras 10, 12). [ 14 ] On July 25, 2016, the Applicant commenced the within judicial review application challenging the Board’s Decision. Legislative provisions [ 15 ]

Section 37 (

d) of the POCBA provides: No police association and no person acting on behalf of a police association shall ...

(

d) deny a member or former member of the bargaining unit the right to be fairly represented by the police association with respect tothe member’s or former member’s rights under the collective agreement. [16] Section 43(1) of POCBA reads: All the provisions of the Labour Relations Code relating to the powers and jurisdiction of the Board, its chair, vice-chairs, members andofficers, hearings procedure, enforcement of orders, appeals and rights, privileges and immunities of the Board, if those matters are notprovided for specifically in this Act, apply and have effect as if this Act formed part of the Labour Relations Code. [17]

Section 153 of the Code reads, inter alia:

(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in thebargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under thecollective agreement. [18] Section 16(2) of the Code states that “[t]he Board may refuse to accept any complaint that is made more than 90 days after thecomplainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.” Issues [19] In their written submissions, the Applicant and the EPA both addressed issues relating to the merits of the breach of the dutyof fair representation complaint.

The ALRB took the position that questions relating to the merits of the complaint are not properly atissue in this judicial review, as the Board made no findings on those points, having summarily dismissed solely on the basis oftimeliness. If the Court finds that the Decision on timeliness was not reasonable, the matter should be returned to the ALRB. At thehearing, neither the Applicant nor the EPA took issue with this approach. I agree.

The grounds for judicial review are properly limited tothe Board’s exercise of its discretion to dismiss the complaint for untimeliness, and do not extend to the merits of the complaint. [20] The Applicant also raised an issue of procedural fairness. However, his dispute does not relate to the procedure followed bythe ALRB. Rather, he complains in relation to issues involving the EPS and the EPA at the time of his resignation.

These are matters thatgo to the merits, and therefore not before the Court on this application. [21] Finally, the Applicant submits that there is a reasonable apprehension of bias arising from the composition of the Board panel. Standard of review [22] All of the parties agree that the appropriate standard of review on the issue of timeliness is reasonableness. This is the casewhether the issue relates to

interpretation of s 16(2) of the Code, or to the question of mixed fact and law regarding whether the Boardshould have refused to accept the Applicant’s complaint: Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 SCR 190. [23] In order to determine the appropriate standard of review, Dunsmuir requires reviewing courts to “ascertain whether thejurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular categoryof question”: Dunsmuir at para 62.

That inquiry reveals that the pre-Dunsmuir jurisprudence of the Supreme Court of Canada hassatisfactorily established that “labour boards possess a high degree of experience and expertise” regarding “labour disputes andgrievances and the other problems arising in labour matters”: International Longshoremen’s and Warehousemen’s Union, Ship andDock Foremen, Local 514 v Prince Rupert Grain Ltd, (SCC), [1996] 2 SCR 432 at para 25, 198 NR 99 .Consequently, the Supreme Court held that “courts should exercise deferential caution in their assessment” of labour relations board’sdecisions in labour disputes: Ibid at para 24. [24] I agree that the standard of review that governs the timeliness issue is reasonableness.

Given that the Board was exercisingdiscretionary authority conferred under its home statute, in the context of the Board’s special expertise in labour relations, a deferentialassessment of the Decision is called for. [25] The Supreme Court in Dunsmuir at para 47, confirmed that in judicial review, reasonableness is concerned mostly with theexistence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether thedecision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [26] The general test for apprehension of bias is found in Committee for Justice and Liberty v National Energy Board, (SCC), [1978] 1 SCR 369 at para 40, 9 NR 115, where de Grandpré J, in a dissenting opinion, wrote: [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information.... [T]hat test is “what would an informed person, viewing the matter realistically andpractically – and having thought the matter through – conclude.

Would he think that it is more likely than not that [the decision-maker],whether consciously or unconsciously, would not decide fairly.” [27] In Ho v Alberta Association of Architects, 2015 ABCA 68 at para 23, 599 AR 122, the Alberta Court of Appeal clarified that: For tribunals, the test is not casual either. The perspective is of a reasonable person, informed of the facts and having thought the matterthrough, and not that of an anxious litigant.

Moreover, for tribunals, the analysis considers the role and nature of the tribunal inassessing what would be properly characterized in that context as a basis for a reasonable apprehension of bias.

Board Decision [ 28 ] The Decision was based on guidelines previously established by the Board, as set out in paragraphs 10-13: [10] Previous jurisprudence of the Board ( Toppin v. PPF Local 488, [2006] Alta. L.R.B.R. 31) provides significant guidelines with respect to the application of the 90 day time limit in subsection 16(2) . At paragraph [30] of Toppin the Board states: 1. The 90-day time limit is a legislative recognition of the need for expedition in labour relations matters. 2. “Labour relations prejudice” is presumed to exist for all complaints filed later than the 90-day limit . 3.

Late complaints should be dismissed unless countervailing considerations exist. 4. The longer the delay, the stronger must be the countervailing considerations before the complaint will be allowed to proceed. There is no separate category of “extreme” delay. 5. Without closing the categories of countervailing considerations that are relevant, the Board will consider the following questions: (

a) Who is seeking relief against the time limit? A sophisticated or unsophisticated applicant? (

b) Why did the delay occur? Are there extenuating circumstances? Aggravating circumstances? (

c) Has the delay caused actual litigation prejudice or labour relations prejudice to another party? (

d) And, in evenly balanced cases, what is the importance of the rights asserted? And what is the apparent strength of the complaint? [11] In Marsh v. Calgary Police Association , [2006] Alta. L.R.B.R. LD-015, a case very similar to the current situation, the Board applied the Toppin decision and stated at paragraphs 21 and 22: [21] That no such complaint was filed until June of 2005 is attributable to Mr.

Marsh’s own unexplained delay in retaining counsel, the decision later taken to proceed by way of a civil action against both the Chief and the Association, and a decision to await the result of the motions to strike in both the Court of Queen’s Bench and the Court of Appeal. In our opinion, these are not reasonable excuses or extenuating circumstances warranting a discretionary waiver of the time limit. [22] Given the extreme length of this delay and the absence of extenuating circumstances, it does not avail Mr.

Marsh’s case that he is an employee and therefore falls into the category of an unsophisticated complainant that might be entitled to some latitude in meeting time limits. We would merely note that any lack of sophistication that might stand to Mr. Marsh’s credit ended in late 2002 when he retained counsel.

Finally, this is not a close case that requires the Board to embark on the last part of the Toppin analysis, an evaluation of the importance of the rights affected and of the apparent strength of the case. [12] The Complainant knew the Union would not be taking any steps to challenge his termination in February/March of 2009. At least seven years have passed since that time. While complainants unsophisticated in labour relations matters may be provided a further short period to file their complaint beyond 90 days, the delay here is extreme.

Further, the Complainant had the benefit of legal counsel as of January of 2011. As outlined in Marsh , the decision to pursue other legal avenues is not an extenuating circumstance. No other excuse for the delay is offered. [13] Based upon subsection 16(2) of the Code and the reasons described above, the Board dismisses the complaint of the Complainant. [ 29 ] The issue in this application is whether the Decision is reasonable. Reasonableness of the Decision on Timeliness [ 30 ] There is really no doubt that the Board’s application of the Toppin guidelines meets the standard of reasonableness.

While the Board did not elaborate upon each of the factors referred to in Toppin and previously applied in the “very similar” case of Marsh , it was clear that they considered these factors. The Board found the delay of seven years to be “extreme”. It acknowledged that for two years, the Applicant was unrepresented, but since 2011 he had the benefit of counsel. It noted that no reason had been provided for the delay, other than the Applicant was unaware that his dispute was with the EPA until the decision of Justice Gill.

The Applicant’s decision to pursue other legal avenues was not an extenuating circumstance. [ 31 ] During the oral hearing, it was clarified to me that the guidelines in Toppin have not been expressly upheld by the Court. Toppin itself clarified, and to some extent reversed, a previous Board decision, Gulerya v ATU , [1994] Alta LRBR 495 (Alta LRB).

I therefore requested and was provided with additional authorities and submissions regarding Toppin , with a view to assessing the reasonableness of the previous jurisprudence applied in the Decision. [ 32 ] As discussed in Toppin , Gulerya was the Board’s first major case on application of the discretionary 90-day time limit after it was introduced to the Code : Toppin , at para 23. The complainant in Gulerya was a long-term employee who had been terminated. His union initially represented him, but eventually, at a meeting attended by the complainant, voted not to proceed with his grievance.

The employee retained a lawyer, who advised him to sue for wrongful dismissal. He was not advised of a possible complaint against the

union for breach of its duty of fair representation. Later, a second lawyer advised him he might have a remedy against the union. The complainant then filed a complaint before the ALRB. The complaint was filed 6 months after the union’s decision not to pursue his grievance. [ 33 ] The Board in Guleyra exercised its discretion to accept the late complaint. It said: The purpose of time lines such as this is to encourage the speedy resolution of disputes. Festering disputes can detrimentally impact the labour-management relationship.

In addition, as time passes, evidence can become less available or reliable given fading recollections, unavailability of witnesses and the potential for disposal of documents... In determining whether to exercise its discretion [“to refuse to accept a complaint”] in a case involving an employee’s complaint, the Board must balance the interests of the employee on the one hand and those of the union and the employer on the other.

In the case involving an employee’s complaint, the discretion should not be exercised unless the Board is satisfied that the union or employer would be prejudiced if the complaint proceeds on its merits. While the Board considers a number of factors when balancing the interests in a given case, each case is evaluated on its own merits. A number of factors may be considered in assessing an employee’s interests, including the nature of the grievance, the reasons for the delay and the remedy claimed in the complaint.

As well, the Board takes into account when the complainant became aware of the alleged violation, the experience or sophistication of the complainant in labour relations matters, and whether the complainant has retained counsel... On the other side, the Board considers the matters identifying prejudice to the employer or union. These include the amount of delay and the impact of the delay on the potential evidence... The Board is also aware that the union and the employer seek closure of the matter and some finality in the resolution of disputes.

In some cases, the passage of time alone may create a presumption of prejudice. [ 34 ] The Gulerya decision referred to the 6 month period prior to the filing of the complaint as “a significant time,” but not “extreme delay,” “especially where there are mitigating circumstances.” It described the complainant as “inexperienced in labour relations matters,” and added that “simply consulting” a lawyer should not disentitle him from filing a complaint after the time limit, as “[i]t seems unfair to suggest that an employee who has received and relied upon incomplete legal advice should, as a matter of course, have to resort to other legal avenues when accepting the late complaint causes no obvious prejudice to the union or the employer.” [ 35 ] The

summary in the Gulerya decision includes the following statement of principle: The threshold level for an individual employee to access the Board’s process should not be too restrictive. In our view, it does not advance the principles of labour relations to deny an employee access to the Board in the absence of any allegation or evidence of prejudice to the other parties. The facts of this case do not reveal prejudice nor do they convince us that finality of the issue is preferable in the circumstances.

We are not prepared to foreclose the process and remedies available under the Code . [ 36 ] In the Toppin decision, 12 years after Gulerya , the Board reconsidered its approach to delay and concluded that Gulerya was “no longer authoritative”: Toppin at para 22. [ 37 ] The delay in Toppin was 7 ½ months. The complainant argued that the onus was on the union to show actual prejudice to its ability to litigate the case. The Board disagreed, and developed the guidelines to the application of s 16(2) that are set out in the Decision.

It dismissed the complaint. [ 38 ] In support of its approach, the Board noted the following: • Gulerya contained ideas supportive of either a strict or lenient approach to the 90-day time limit (para 25). • In cases subsequent to Gulerya , the Board emphasized the idea that extreme delay implies a prejudice that is sufficient to dismiss a late complaint (para 26). • While minor delay may be ignored where there is no actual prejudice; in the case of extreme delay, a complainant must show “compelling reasons” to proceed (para 29). • It is “highly meaningful that the Legislature has set a time limitation, even a discretionary one, of 90 days” (para 31). • Delay in labour relations litigation is “peculiarly prejudicial and corrosive” for the following reasons: First, instead of the ordinary two-sided employment relationship, labour relations statutes govern the much more complex three-sided relationship of employer, employees and trade union.

They do this partly through the instrument of the collective agreement, which is itself a product of a complex process, not just of balancing employer interests against employee interests, but of balancing among competing employee interests...

Second, labour relations statutes create systems of workplace governance with many time-sensitive features... [A] collective agreement must feature a method of resolving differences arising out of the agreement, which is almost universally a grievance procedure with short time limits, culminating in grievance arbitration through which reinstatement of employment is a common remedy. These factors mean that labour relations disputes typically affect many persons, not just the immediate litigants...

Because the impact of a typical labour relations dispute is so broad and diffuse, there is a compelling public policy need to air and resolve those disputes quickly. The entire structure of the Labour Relations Code and the system of workplace governance that it sponsors, is aimed at airing, mediating, adjudicating and otherwise resolving those disputes with a minimum of delay (paras 32-34). • It is “far too limited an approach” to consider only litigation prejudice:

The prejudice with which the Board should be concerned is broader. The Board must recognize the prejudice delay creates to the entire set of labour relations relationships in the workplace. It must keep in mind the corrosive effect of delay upon a labour relations system that is both statutorily and in practice extraordinarily sensitive to time. It must place some value on the maintenance of “industrial peace”.

It is not practical to expect the Board, or even the immediate parties to the dispute, to be able to identify with precision all the negative effects that delay in filing a complaint has had or may have on someone connected with the workplace in question. This means that a late complaint is presumptively bad and should be dismissed unless countervailing considerations exist in the case (paras 38-39). [ 39 ] Toppin commented on the observations in Gulerya regarding access to Board proceedings by unsophisticated complainants.

Lack of knowledge by employees is recognized by tolerance of brief delays, but “will generally not avail an employee where the delay is lengthy... Complainants are expected to exercise due diligence in learning about their rights and understanding what process to follow.

It is not a reasonable explanation that the complainant has pursued remedies in other forums without success” ( Toppin at para 48). [ 40 ] Further, the Board specifically disagreed with Gulerya’s proposition that faulty legal advice might provide a reasonable explanation for delay: Experience has shown the Board that this occurs with regrettable frequency.

Lawyers unfamiliar with labour and employment law may recommend a wrongful dismissal or other civil action, not realizing that the law has almost completely closed off these avenues in a collectively-bargained workplace in favour of grievance arbitration or complaints before the Labour Relations Board. Operating on this faulty understanding, the lawyer may follow the more leisurely time frames that apply to civil actions in the Courts.

Only long after the events, perhaps even when the wrongful dismissal action is struck by the Court, does the complainant seek to file an untimely grievance, or complain to this Board that the bargaining agent failed to represent him or her fairly. Complainants seeking relief from the 90-day time limit argue that it is no fault of theirs that the complaint was late. That may be so, but neither is it the fault of the respondents, who must live with the prejudice created by the delay (para 49). [ 41 ] In Gulerya , the Board adopted an approach to delay that is urged by the Applicant in this case.

The Board was concerned with providing access to its proceedings to unsophisticated parties who may claim, as the Applicant does, that they have suffered significant injuries in relation to employment rights, as a result of arbitrary actions by employers and/or unions. If Board proceedings are denied to them, they will have no forum to consider their claims, and no possibility of a remedy.

I make no judgment regarding the strength of the Applicant’s case, but recognize his perspective, that he has never had the opportunity to have it heard by the Board. [ 42 ] Even under the Gulerya approach, the Applicant’s complaint may not have been accepted by the Board. Gulerya suggests that extreme delay may be presumed to be prejudicial. The delay in this case is undoubtedly extreme. [ 43 ] Under Toppin , a stricter approach to delay applies. Any delay must be explained.

Compelling reasons may be required in the case of extreme delay: This is a stricter approach than in Gulerya , which suggests that prejudice might be presumed only in cases of extreme delay. In our view, however, the approach as we have stated it more accurately reflects the Board’s actual practice since Gulerya : it looks not for prejudice, but for extenuating circumstances and reasonable explanations. This approach also removes the need to create any firm rules about what distinguishes extreme delay from ordinary delay. The Board’s case law has not really attempted to establish any such rules.

The cases better stand for the proposition that extreme delay is just a far point along the continuum of delay, and cases at all points along that continuum still have to be assessed on their own merits. Naturally, extreme delay is harder to justify. Compelling reasons may be required for the complaint to proceed.

But extreme delay is still different from ordinary delay in degree, not in kind (para 40). [ 44 ] The Board has followed the Toppin approach in a line of cases to dismiss a series of cases where the complainant hinged the delay, at least partially, on faulty legal representation: Obeng and CUPE, Local 1032, Re , [2014] Alta LRBR LD-071; Flanders v HCSEU, Local 301 , [2011] Alta LRBR LD-059; Radke v UA, Local 488 , [2011] ALRBD No 59; Ahmed v General Teamsters, Local 362 , [2010] Alta LRBR LD-039; Lewis v CJA , [2010] Alta LRBR LD-030; Hamid v HEREIU, Local 47 , [2007] Alta LRBR 27; Horvath v IBEW Local 424 , [2006] Alta LRBR LD-021; and Marsh . [ 45 ] Equally significant is that Hembroff J of this Court in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 488 v Radke , 2012 ABQB 387 at para 10 [ Radke QB ], aff’d 2013 ABCA 436 [ Radke CA ], implicitly endorsed – while not expressly upholding – the guidelines that the Board outlined in Toppin for consideration and application to the issue of timelines of complaints or delays.

In this regard, I do note that in Radke QB at para 13 , the Board’s decision that applied the Toppin guidelines was found reasonable; and the Court of Appeal in Radke CA at para 6 , also confirmed that the “chambers judge was correct in finding that the Board’s reasons were reasonable.” [ 46 ] I have set out the Toppin decision in some detail because, in my view, the decision speaks for itself and makes it abundantly clear that the Board’s approach to delay is fully justified. The reasoning is transparent and intelligible.

It reflects the Board’s understanding of labour relations policy, and its “high degree of experience and expertise” regarding “labour disputes and grievances and the other problems arising in labour matters”: Prince Rupert at para 25 . The guidelines developed in Toppin depart from the Board’s earlier approach in Guleyra . That is not a concern.

The Toppin decision amply demonstrates that the current guidelines fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law ”: Dunsmuir at para 47 . [ 47 ] I return then to my initial observation that the application of the Toppin guidelines in the Decision easily meets the standard of reasonableness. The Applicant’s objections are that the incorrect legal advice that he received should be considered a justification to extend his time, and that the seriousness and strength of his case on the merits outweighs the delay.

These objections are directly countered in Toppin . Accepting that it was not the fault of the Applicant, that he followed faulty advice and his complaint was therefore late, equally it was not the fault of the respondents, “who must live with the prejudice created by the delay”: Toppin at para 49. As to the merits of the case, that is a factor that is required to be addressed only in close cases. In cases of extreme delay, and an absence of extenuating circumstances, the Board is not required to consider the merits of the claim.

The Board reasonably concluded that the delay here was extreme, and no valid extenuating circumstances existed.

[ 48 ] I am satisfied that the Decision followed the analytical framework in Toppin in a reasonable manner, and that the Board reached a conclusion on the timeliness issue that is justifiable, transparent and intelligible, and that “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para 47 .

Apprehension of Bias [ 49 ] The Applicant contends that the presence of one of the panel members during deliberations on his matter raised an apprehension of bias because the member’s biography on the Board’s website indicates that she is “now retired, most recently was the Director, Labour Relations for the City of Edmonton.” The Applicant argues that her position with City suggests that “she would have worked closely with the [EPS], and may have even dealt with [the Applicant’s] matter.” [ 50 ] The Board observes that the panel member was no longer an employee of the City at the time of the proceeding.

She had retired from City services for almost 2 years at the point the Applicant’s matter was heard by the Board. [ 51 ] The Applicant has not alleged actual bias. Nonetheless, an apprehension of bias is a serious allegation that “cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant...

It must be supported by material evidence demonstrating conduct that derogates from the standard”: Arthur v Canada (Attorney General) , 2001 FCA 223 at para 8 , 283 NR 346 [ Arthur ]; CED §323. [ 52 ] The fact that a panel member had an earlier career with the City of Edmonton does not suffice as “material evidence” that is capable of supporting the Applicant’s allegation.

In the absence of concrete supporting evidence that the panel member had outside knowledge of or previous involvement with the subject matter in dispute, I find that the Applicant’s allegation qualifies as “mere suspicion, pure conjecture, insinuations or mere impressions”: Arthur at para 8 .

See also Boardwalk Reit LLP v Edmonton (City) , 2008 ABCA 176 at paras 26-30 , 85, 437 AR 199. [ 53 ] Based on the fact that the panel member, against whom the Applicant made an allegation of apprehension of bias, is no longer employed by the City of Edmonton, and had been retired from the City for a considerable period of time prior to the Board proceeding, I am satisfied that a reasonable person – who is informed of the facts regarding the Applicant’s complaints, the panel member’s employment history, and has thoroughly considered the matter – would not conclude that the panel member is more likely, consciously or unconsciously, to fail in deciding the matter fairly.

Disposition [ 54 ] The Application for judicial review is dismissed. [ 55 ] The parties may speak to costs, if necessary. Heard on the 4 th day of May, 2017 with additional written submissions were received on May 18 th , May 26 th , and May 31 st , 2017. Dated at the City of Edmonton, Alberta this 1 st day of August, 2017. J.M. Ross J.C.Q.B.A. Appearances: Nikita Lee Self-represented

for the Applicant Jeremy Schick for the Respondent, Alberta Labour Relations Board Kelli Lemon Elliot Watson, Student-at-Law Seveny Scott for the Respondent, Edmonton Police Association G Hope Alberta Labour Relations Board for the Respondent, Edmonton Police Service