Engel v Edmonton Police Association, 2017 ABQB 495

Court of Queen’s Bench of Alberta Citation: Engel v Edmonton Police Association, 2017 ABQB 495 Date: 20170809 Docket: 1003 16557 Registry: Edmonton Between: Thomas Engel Plaintiff - and - Edmonton Police Association and Bill Newton Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Avril B. Inglis _______________________________________________________ Table of Contents Introduction . 2 Plaintiff . 3 Defendants . 3

Summary of Witnesses’ Evidence . 4

Jeff Klassen . 4 Tom Engel 4 Bill Newton . 8 Plaintiff’s argument 9 Defendants’ argument 10 Findings of Fact 11 Analysis . 12 Is the

Article defamatory? . 12 Defences . 14 Truth . 14 Qualified Privilege . 15 Fair Comment 16 Malice . 17 Conclusion re: Defamation . 17 Damages . 17 Conclusion . 20 Appendix A .. 22 Introduction [ 1 ] This matter involves a single

Article posted on the Edmonton Police Association’s (“the EPA”) website sometime in September 2008. The author of the

Article is Bill Newton. The plaintiff is well-known to the EPA and many of its executive members and known personally by the defendant Newton. The professional connection of all parties is a key issue in this matter and is discussed below. The plaintiff claims that the published

Article was defamatory and damaging to his reputation as a lawyer. The defendants claim, among other things, that the

Article was not about Mr. Engel and was not defamatory. [ 2 ] These are the key issues to be considered in this action: • Is the

Article defamatory? • If so, does a defense apply? • If any defenses apply, are they defeated by a finding of malice? • If defamation is established and no defense applies, what damages are appropriate? Plaintiff [ 3 ] The plaintiff, Tom Engel, is an Edmonton-based criminal lawyer with over 30 years at the Bar. He is the father of four children and a long-time Edmontonian, volunteering for many organizations over the years. He is a long-time member of the Edmonton Criminal Trial Lawyers’ Association (CTLA), and has chaired that organization’s policing committee since 2000.

In evidence he spoke of his belief in the significant need for civilian oversight of the police: he indicated that his practice regularly involves policing issues, including complaints made to the Law Enforcement Review Board (“LERB”). As he has developed this particular professional interest he has spoken to law classes, met with the Minister of Justice, Chiefs of Police and others. He runs the Tom Engel law office, which has grown over time to include several associates. At times his associates have also conducted policing cases and complaints to the LERB. [ 4 ] In 2008 Mr.

Engel estimates that approximately 75 to 80 percent of his practice was criminal defense work. He indicated that a lot of his time was involved with clients who claimed they had been wronged by the police. Mr. Engel received referrals from other lawyers in that subject area because of his developing expertise. The rest of his practice was civil and administrative tribunals including appearances at the LERB.

He indicated that he knows of no other lawyer that makes as many appearances at the LERB, and believes that approximately 75 percent of the appeals before the LERB are from his office and many of the others are from self-represented parties. Defendants

[ 5 ] The EPA is the union of Edmonton Police Service officers. Membership of all EPS officers is automatic. The EPA includes all ranks from staff sergeant down to constable. The organization represents the interests of police officers of the EPS. The EPA’s website appears to be the sole publisher of the Article. The website is a key source of information for its members. There is a private member portion of the website, as well as a public portion. [ 6 ] Mr. Bill Newton is now a retired member of the Edmonton Police Service after a 30-year career. He, like Mr.

Engel, is a father of four children and a long-time Edmontonian. He was a 30-year member of the EPA and at the time of trial worked for the EPA on contract. In 2007 he was a Director of the EPA, and he began working with members of the EPA that were the subjects of complaints. He was also a member of the web committee and legal affairs committee. Mr. Newton authored the

Article and posted it to the EPA’s website sometime in September 2008. Prior to posting, the

Article was discussed at a meeting of the EPA (it is unclear if this was a committee meeting or an executive meeting) on September 10, 2008.

Summary of Witnesses’ Evidence Jeff Klassen [ 7 ] The Plaintiff called a local Edmonton lawyer, Mr. Jeff Klassen. In 2008 he was and still is a member of the CTLA. He indicated that he considers Mr. Engel a colleague. He gave evidence that he, when searching the CTLA and possibly Mr. Engel’s name on the internet, located the Article. This was likely in the fall of 2008. He clicked on the link to the Article, read it and told Mr. Engel about it. He said he summarized the

Article by telling Mr. Engel “they don’t like you.” Tom Engel [ 8 ] The plaintiff described in evidence how he became aware of the

Article in the same way. After being told of it by Mr. Klassen, Mr. Engel himself did a Google search of his own name and found it very quickly. He provided the printed copy of the results of a Google search for the term “EPA” that he conducted in October 2008. The first hyperlink in the list of search returns produced is to the Article, and the text that appears is “Tom Engel and the LERB.” By clicking on the link the

Article would open in the EPA website. [ 9 ] Mr. Engel said that his immediate reaction was that he found it to be defamatory and full of false information. He said that the

Article accused him of incompetence and dishonesty, and that it implied he had a vendetta against the police, was abusing the LERB process and was bringing appeals for improper purposes. I reproduce the text of the

Article in Appendix 1. The content of the

Article and the EPA’s publication of it on its public website are undisputed. [ 10 ] The plaintiff went on to indicate that he felt the

Article negatively commented on his competence and character. He indicated that the terms “frivolous and vexatious” had specific meaning to a lawyer. Further that the reference to “crying wolf” is a metaphor for lying, and that “B.S.” in the last paragraph simply means “Bullshit.” The plaintiff took issue with the phrase in the

Article about “self- appointed oversight” and indicated that he had been a retained lawyer at the time he made any appearances, and that he had been appointed by the CTLA to chair their policing committee. The Article’s description was not accurate regarding his role or his firm’s role according to Mr. Engel. [ 11 ] Mr. Engel described the process for complaints to the LERB.

The Police Act of Alberta and the policing regulation provide a framework: A complaint must be filed with the police chief of the organization in question; the chief will have it investigated (for the EPS this is now done by the professional standards branch). A report is provided to the chief, who can then choose to address the matter himself (particularly if he deems the complaint not serious) or he can order that the officer be charged and a hearing conducted. At that hearing the allegations against the police officer can be upheld or dismissed.

The initial complainant is not represented at this hearing. [ 12 ] Mr. Engel described that in the past, the standard applied to evidence at these hearings was whether or not a complaint was proven. He testified that after he took an application to the LERB in 2006 that the threshold be changed to a “reasonable prospect of conviction.” He was successful and at that point more hearings were referred to the presenting officer. [ 13 ] After the police hearing, an appeal can be brought before the LERB.

If it is the complainant that appeals to the LERB, they now become the appellant, and may have counsel appear for them. At one time the appeals to the LERB were hearings de novo , however since approximately 2010 LERB hearings are appeals based on the record of the hearing before the Chief. [ 14 ] In his direct evidence, Mr. Engel indicated that he and his firm had been successful at the LERB approximately ten times. Mr. Engel then testified about specific LERB cases that involved him or his firm. He began by addressing the serious complaint against the author of the Article, defendant Bill Newton.

Earlier in the same month the

Article was published, that complaint was heard by the LERB. It was found at that time that Mr. Newton had exercised authority when unlawful or unnecessary and he was suspended without pay for ten hours. (As will be addressed below, this finding was ultimately the subject of a successful appeal). It was noted that the Newton LERB decision was listed as a hyperlink on the left-hand side of the EPA’s website where the

Article appeared, however there was no mention of that LERB decision in the Article. [ 15 ] Mr. Engel was asked to comment on a list of 35 cases that was tendered into evidence as a document that Mr. Newton had collated prior to writing the Article. The list is of matters between the LERB and Mr. Engel’s clients. Mr. Engel noted how several of the cases listed were “successes” in his opinion in various ways. At times de novo hearings were ordered by the board, which was the remedy by Mr. Engel. Some appeals led to changing police policy or creating new guidelines for police.

He noted that subsequent to the LERB level of appeal, a further appeal to the courts is possible. He also described that a new hearing order is the key (and virtually only) outcome that can be sought at the LERB, and was able to identify several cases where that had been achieved by Mr. Engel or a member of his firm. Ultimately he identified seven cases of the 35 on the list that were successful in his opinion. One of the cases (#19) did not involve Mr. Engel or his firm. This is key, given that the

Article referred to Mr. Engel’s firm having a “0 for 28” record. This table of

cases was Mr. Newton’s alleged basis for that assertion. [ 16 ] During discoveries, Mr. Engel was tasked with producing his own record of his firm’s experiences with the LERB. He testified about several matters that predated the

Article but were not part of the table of 35 cases that Mr. Newton produced, including: • The Pick complaint: comments to a newspaper by a different EPS officer about “lawyers flooding [the police] with complaints.” Mr. Engel believed that this was directed at his own firm and proceeded with complaints to the EPS legal advisors and to the Chief of EPS. When his complaint was dismissed by the Chief, he appealed to the LERB. An apology and retraction was eventually provided and the LERB was informed that the issue had been resolved (that is, Mr.

Engel withdrew his complaint as he was satisfied with the apology and retraction as an appropriate settlement). • The Letcher decision: Counsel from Mr. Engel’s office received a finding from the LERB that this officer had used excessive force, but the LERB’s only available remedy was to order it back for a new hearing, which it did. This decision was quashed by the Court of Appeal and another hearing at the LERB was ordered.

At that hearing no evidence was called and the complaint was dismissed. • The Faulkner decision: The LERB upheld the Chief’s dismissal of the complaint, but cautioned the officer about reasonable grounds for detention. • The Taylor decision: The LERB ordered a disciplinary hearing after the Chief had initially dismissed the complaint. • The Whitaker matter: the LERB ordered a hearing on two complaints after the Chief initially dismissed the complaint. [ 17 ] Mr.

Engel also testified of interlocutory or procedural applications where he or his firm were successful at the LERB: • Permission to proceed without calling the complainant; • Disclosure granted regarding legal opinions; • Approval to proceed despite a conviction in criminal court on the same complaint; compellability of EPS officers; • Determining the threshold that must be applied by the Chief of Police to determine whether a hearing is required; • Disclosure procedure curtailing the use of trust conditions by police when disclosure was provided to counsel; • Adding a respondent to a complaint was allowed; • Receiving an order to have a de novo hearing rather than being restricted to a hearing on the record; • Disclosure order for “involuntary statements” and a large costs award to the CTLA; and • Obtaining an order to return a matter to the police commission after the commission was found to be wrong in determining they had no jurisdiction. [ 18 ] After reading the

Article the plaintiff immediately contacted Mr. Tony Simioni who was vice president of the EPA at the time. Mr. Engel said he had previous positive professional dealings with Mr. Simioni. He told Mr. Simioni that he was upset and that he found that the

Article was false and defamatory. Mr. Engel was given the impression that the

Article could not be just taken down or a retraction printed by Mr. Simioni. In that conversation it was discussed that the plaintiff would provide a rebuttal or response to be published on the EPA website. Mr. Engel’s recollection was that he told Mr. Simioni “maybe” he would do that, and he was left having been told that the author Mr. Newton would call him to discuss it. He was never contacted by Mr. Newton which is also admitted by Mr. Newton. Mr. Engel contacted Mr. Simioni again, who indicated he would contact Mr. Newton again – once again no further efforts to contact Mr. Engel were made. [ 19 ] Over the subsequent few weeks the

Article remained on the EPA website. The plaintiff indicated that, having heard nothing from Mr. Newton, he contacted and instructed counsel, and diarized a deadline to sue if he decided to do so. His counsel provided a letter to the EPA demanding that the

Article be removed from the website. No apology or retraction was offered or provided by Mr. Newton or the EPA. In response to the letter from counsel, the EPA deleted the

Article from the website sometime in November 2008. However I note that while the

Article might not have been available, the title was still present on the header of the EPA’s website according to the printouts provided in evidence. [ 20 ] An email between the plaintiff and Mr. Simioni – which appeared friendly and familiar – was introduced into evidence indicating a discussion about Mr. Engel posting a rebuttal was had on October 9, 2010. Ultimately this was not done. Mr. Engel fairly indicated that it was Mr. Simioni who made the offer to provide a rebuttal, and that it was never revoked. [ 21 ] Mr.

Engel testified that he could not specifically identify lost income as a result of the Article: “One will never know why certain business does not come to you.” [ 22 ] Mr. Engel went on to testify that he would never recommend to a client that they complain to the LERB as part of defending their own criminal charge. He commented that it would be a bad tactical decision. However, he did note that if a complaint was warranted, they would hope that any prosecution was completed prior to the one-year limitation that has been in place since 2010. [ 23 ] In cross-examination, Mr.

Engel agreed that he had previously said that the motivation behind this claim was because he himself was being sued for defamation by another EPS officer. He later explained that he had also come to the conclusion that there was no other way to resolve the issue except through litigation. [ 24 ] Mr. Engel was further asked about his understanding of the detailed meaning of the Article. He testified that the Newton

decision “had to be” one of the cases referred to in the Article, despite having stated that was not the case in discoveries. When cross- examining the plaintiff, counsel for the defendant implied that the ultimate issue when assessing the truth of the

Article (which is addressed further in the

summary of Bill Newton’s evidence, below) was whether the

Article referred to cases completed by the LERB or cases that had exhausted all appeal avenues subsequent to the LERB. It is clear that the 2008 pre-Article decision by the LERB against Mr. Newton was not the final one; in fact, the LERB decision was set aside by the Court of Appeal in 2010. [ 25 ] Mr. Newton’s case

summary was reviewed again with Mr. Engel by counsel for the defendants. The final conclusion of each case in the table was identified. Cases on this list were concluded in various ways – dismissals, withdrawals (for various reasons), hearings in Queen’s Bench, a retirement and a death of the officer that severed the jurisdiction of the LERB, death of a complainant and (contentiously) matters that went to the Court of Appeal. Of particular note was a hearing that was dismissed because Mr. Engel failed to attend or notify his clients of the hearing.

This was addressed candidly by the plaintiff during his testimony in-chief: he made a mistake and the appeal was dismissed outright. Further, it was noted that the timeline between complaint and decision of the LERB was often years long. [ 26 ] I note that of the cases from the table that were the basis for cross-examination, number 12 was not addressed. When re- examined Mr. Engel testified that a new hearing was ordered, a hearing was held and a finding of guilt, punished by a reprimand, was the end result. [ 27 ] Mr.

Engel pointed out that while many of the cases in the table did not result in sanctions ordered against an officer, the Durand decision did conclude at the LERB level with sanctions ordered. This was apparently overturned at the Court of Appeal, which was a significant issue for argument as I address, below. [ 28 ] Mr. Engel further testified during cross-examination that the phrase “is there something else going on here” implied that he had an improper motive or police vendetta that influenced the filings of complaints. Mr.

Engel further said that the phrase could also mean that he had been dishonest when filing the complaints. Bill Newton [ 29 ] Mr. Newton testified about his process of information gathering prior to writing the Article. Much of his data collation has been addressed above: primarily a spreadsheet that Mr. Newton kept of LERB decisions and final, post-appeal outcomes. [ 30 ] By 2007 Mr. Newton was tasked by the EPA to assist EPS members that were the subjects of LERB complaints.

He testified that he would talk the member through the process, indicating that members frequently were greatly anxious about the complaint and the potential outcomes. He would prepare them for the required interviews, by having them review their reports and prepare for questions. He expressed sympathy for members who often waited several years for a complaint to make its way through the system. [ 31 ] In 2007 Mr. Newton was a Director for the EPA. He sat on the legal affairs committee and the web committee. Also on the web committee was the President, Vice President (Mr. Simioni), himself and another member.

The website was meant to be a source of information for EPS members. Each board member was to provide content based on their portfolio areas. [ 32 ] Mr. Newton wrote the Article. It was discussed at a board meeting in September 2008. He was given approval to post the

Article then and he did so. Mr. Newton denied receiving any calls or contact from police members or the plaintiff about the Article. The

Article remained on the EPA website until the letter from Mr. Engel’s counsel was received on November 6, 2008. Mr. Newton attested that he removed the

Article the following day, as directed by his boss Mr. Simioni. [ 33 ] When asked about Mr. Engel, Mr. Newton denied knowing him personally but also denied disliking him. He spoke of respecting Mr. Engel and his reputation as counsel. [ 34 ] Mr. Newton attested that the genesis of the

Article was in 2007, when he was tasked with supporting members through the complaints process. While researching LERB decisions he noted that Mr. Engel, his firm, or other members of the CTLA were frequently appearing on the LERB cases. He began building his database document about those cases, described above as a spreadsheet. He indicated that from the spreadsheet information it became clear to him that “something was going on in Edmonton but not anywhere else. There was [sic] an inordinate number of appeals.” He felt that, by 2008, a pattern was beginning to emerge. [ 35 ] Mr.

Newton estimated he spent 40 to 80 hours of off-duty time collating the spreadsheet. He contacted employees of the board for clarification as needed. He indicated that, unlike Mr. Engel, he did not pay attention to procedural findings. He outlined his findings based on his research. [ 36 ] I infer from the lack of evidence on point, Mr. Newton did not contact Mr. Engel or any other member of the CTLA for an interview, information or comment prior to writing or publishing the Article. [ 37 ] The first nine cases in the spreadsheet resulted in no findings against members at the LERB.

The tenth in the list had not yet completed its way through all appeals, and thus was not part of his reference cases. Numbers 11 to 24 also had completed all hearings and no sanctions to police members had resulted. Number 25 on the list was also still pending final resolution at the time the

Article was published. Cases 10 and 25 in the spreadsheet were described as not considered for the Article. This pattern of evidence continued: any LERB complaint that had not completed all possible appeals, regardless of the actual LERB level decision, were not included by Mr. Newton’s in the Article. One case that resulted ultimately in a sanction against an officer was identified by Mr. Newton, who openly stated that he had simply missed it, but that it was a “success” for Mr. Engel. This evidence was relevant to the single statement in the

Article that Mr. Engel, his office and the CTLA had a “0 for 28” record as written in paragraph 5 of the Article. [ 38 ] As he addressed this information collection for the Article, Mr. Newton said that we (I presume he meant the EPA executive, including himself) wanted to draw attention to the fact that there were so many hearings, and that the officers put through those hearings, on the standard of balance of probabilities, had been found to have done nothing wrong. In saying this, he explicitly exonerated Mr.

Engel from any wrongdoing himself. He identified the system, rules, and legislation as being the source of a problem for members. [ 39 ] Mr. Newton deliberately stated in this evidence that his intent for the

Article was not to vilify Mr. Engel, his office or the CTLA. He expressed respect for Mr. Engel as a lawyer. He summarized his goal in writing and publishing the

Article as one to inform members of the slow process of LERB complaints and what the ultimate outcomes tended to be. He further implied it was a call to change the processes, particularly the timeliness of hearings and decisions. Plaintiff’s argument [ 40 ] The plaintiff argues that the following phrases from the

Article are defamatory statements of fact: • Now, one would think that with 9 years’ experience and 28 attempts under their collective belts that the CTLA/Mr. Engle/Tom Engle Law Office would get pretty good at this process. The shocking truth, and some would say disturbing reality is that this self- appointed oversight group has yet to win one appeal. They are 0 for 28! • This dismal record happened in a process where it is not necessary to prove anything beyond a reasonable doubt like in criminal court.

No, all they had to prove was it was more likely than not, that things went the way the CTLA /Engle Law Office said it did. • So in more than a third of the cases the CTLA/Engle Law Office started something and failed to finish. • I seem to recall several occasions where there has been a tremendous amount of hoopla and media attention around a complaint and allegations. I recall images of Tom Engel standing before the cameras essentially trying the matter in the media. I don't recall any comment ever by Mr.

Engle when he or they failed to make a case. • After 28 incidents of cry wolf, when does someone call B.S? [ 41 ] The plaintiff argues that the following phrases from the

Article are defamatory statements of opinion: Rhetorical questions and other innuendo of incompetence or malicious motive: • Is this incompetence or is something else happening here. • Is this a record of extreme incompetence or is there something else going on here. Mr. Engel was not retained or acting as counsel, but self-motivated or maliciously motivated at times: • The shocking truth, and some would say disturbing reality is that this self-appointed oversight group ... • At the end of the day however when do these complaints and appeals become frivolous and vexatious. [ 42 ] The plaintiff argues that the

Article was simply wrong in many of the factual statements. Mr. Newton agreed that the plain language of the

Article does not refer to cases proceeding through all levels of appeal but the LERB process only. As such, the cases not considered because of their ongoing appeal status were not properly eliminated from the content of the Article; their appeal status was irrelevant. [ 43 ] Further, the Cochlin matter that Mr. Newton admitted should have been considered based on his described criteria was inexplicably missed, despite the fact that the EPA president had personal knowledge of that decision, which predated the

Article by almost two years. Mr. Newton is alleged to have unfairly considered the Boulanger matter a failure of Mr. Engel’s, as the officer in question retired before sanctions occurred. [ 44 ] It was also argued that cases that were withdrawn without any influence by Mr. Engel on the withdrawal were unfairly attached to Mr. Engel’s actions or competence. Another case in the list of cases used to support the statements in the

Article was shown to not be one of Mr. Engel’s at all. Another case resulted in criticism by the LERB but no sanction was statutorily available. Counsel also argued, as Mr. Engel implicitly did, that many matters were procedural decisions and Mr. Engel was successful, yet none were considered in the drafting of the Article. In all, counsel for the plaintiff identifies a 52 percent success rate in front of the LERB by Mr. Engel, or 42 percent rate if only nonprocedural cases are considered. Defendants’ argument [ 45 ] As I find below, there are limited conflicts in the evidence, however, there is room for argument about

interpretation of some of the evidence. That was clear as the witnesses themselves testified. [ 46 ] The defendants argue that Mr. Engel was incorrect when he stated that the reference to “the boy who cried wolf” was about a child who was lying, while in fact the metaphor really meant there were many complaints about officers that were unsubstantiated. [ 47 ] Further they disagree with Mr.

Engel’s assessments of “success.” They argue, as their client attested, that procedural successes or findings that were overturned, or cases that were ordered for a re-hearing and then the complaint failed could not be considered, factually, successes. They contest Mr. Engel’s assertion of at least 10 successes in his representation of clients. They minimize Mr. Engel’s explanation of why some matters were withdrawn, indicating they were not done in a timely manner. However, I note that Mr.

Engel’s reasonable explanation for the withdrawals that were not driven by his own actions was not contested. [ 48 ] The defendants explicitly contest the evidence of Mr. Engel wherein he indicated that to him the

Article implied that he was

dishonest and had a vendetta against the police, noting that the statement of claim did not identify these grounds. Mr. Engel’sinterpretation of the meaning of “crying wolf” was specifically contested. [49] It was further argued that Mr. Engel’s

interpretations of “success” simply differed from Mr. Newton’s definition of it as heinterpreted it for the purposes of the Article. It was noted that withdrawals were not timely (without holding Mr. Engel accountable forthe reasons for withdrawals) and re-emphasize that of the cases mentioned in court by Mr. Engel, 15 of the 35 were ultimately dismissed.Specifically it was noted that “no sanctions were issued by the LERB that were sustained on appeal to the Court of Appeal.” [50] It was noted that Mr. Engel was aware of Mr. Simioni’s offer that he provide a rebuttal to the Article. Mr.

Engelacknowledged that to be a fair and genuine suggestion. He confirmed that Mr. Simioni reminded him of the offer after the statement ofclaim was filed. [51] The issue of identity was raised briefly by the defendants, suggesting that “Mr. Engel is but one member of a class ofindividuals that work for the Engel law firm. The evidence is clear that several of the cases before the LERB were handled by othermembers of the firm.” [52] Finally, the defendants urge this Court to review other cases of defamation where the plaintiff was a lawyer and their practicesor knowledge as a lawyer were the subject of complaint.

Several cases were provided to show that it is more often when counsel’scharacter is impugned that Courts are likely to find defamation, rather than for skill or intelligence. Findings of Fact [53] There were limited conflicts in the factual evidence before me. I have no trouble finding the following facts: [54] Mr. Newton researched complaints to the LERB for some time before writing and posting the Article. He maintained adatabase of cases for his own reference. When preparing the

Article he self-selected which cases he would assess, but failed to identifythat selection process anywhere in the Article. Members of the EPA executive counsel, including the President and Vice-President, readthe

Article before its publication and approved its publication. The

Article was posted on the EPA website and was easily accesseddirectly from the website or through an internet search. The

Article remained on the website until the day after counsel for Mr. Engelsent a letter asking that it be deleted. No apology was ever provided to Mr. Engel, nor was a retraction published. [55] Mr. Engel was offered the opportunity to provide a counterpoint

Article but did not pursue providing his own content for thewebsite. Mr. Newton did not at any time before or after the publication contact Mr. Engel, nor after Mr. Engel contacted Mr. Simioni,nor after counsel’s letter was sent to the EPA. No evidence at trial was led to show that Mr. Engel is incompetent, disreputable, orfrivolously makes complaints to the LERB. In fact, the evidence led by the defendants was that Mr. Engel is a reputable, competentlawyer. Explicitly no wrongdoing on his part was alleged as a fact. [56] Even based on the self-selected criteria, Mr. Newton’s

Article omitted at least one LERB finding that was relevant to theArticle. That was identified as a “mistake” by Mr. Newton. The author himself had recently been found worthy of sanction by the LERBat the time the

Article was written and posted, and that was not addressed in the text of the

Article at all. Mr. Engel had appeared on thatmatter. However on the left column of the EPA website at the time the

Article was saved and printed by the Plaintiff, “Newton LERBdecision” is a hyperlink. I was not provided evidence of what document that hyperlink would lead to, but I infer it would have taken anyreader to information about that LERB decision. [57] Much evidence and argument was received about the definition of which cases should be and were included in the quantifiedstatement of “0 for 28.” Certain cases were particularized by each side, with the Association and Mr. Newton asserting the accuracy ofthe statement (the one exception being the Cochlin matter). I disagree with their assertions, which I will discuss further. [58] Mr. Newton alleged that the purpose of the

Article was to inform members about the LERB process. I understand that healleges that he meant to ease their minds. However, I do not find that the Article’s content reflects that purpose. Mr. Newton indicatedthat he wrote the

Article to identify problems with the legislation. I do not find that the

Article was reflective of that purpose, either. Analysis Is the

Article defamatory? [59] The test for defamation is well established, and I rely on Kent v Martin, 2016 ABQB 314, as a recent case that correctlysummarizes it: 95 The generally accepted test of what constitutes a defamatory statement was outlined by Lord Atkin in Sim v. Stretch (1936), 52T.L.R. 669 (U.K.

H.L.) at 671: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say,to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelingsof hatred, contempt, ridicule, fear, dislike or disesteem. 96 The test is objective and is judged by the standard of an ordinary, right-thinking member of society. This standard was describedin Color Your World Corp. v. Canadian Broadcasting Corp. (1998), (ON CA), 156 D.L.R. (4th) 27 (Ont.

C.A.) as abalance between being so low as to unduly stifle free expression or so high as to fail to protect the integrity of a person’s reputation: atpara 15. An ordinary, right-thinking member of society is someone “who is reasonably thoughtful and informed, rather than someone

with an overly fragile sensibility. A degree of common sense must be attributed to viewers”: ibid at para 15. [60] The test for determining defamatory meaning is an objective one “and is judged on the standard of an ordinary member ofsociety.” Left v Taylor, Zinkhofer and Conway cited in Color Your World Corp. v Canadian Broadcasting Corp. (1998), (ON CA), 156 D.L.R. (4th) 27 (Ont. C.A.). Further, “an ordinary, right-thinking member of society is ‘reasonably’ thoughtful andinformed, rather than someone with an overly fragile sensibility.” Left at para 15.

The defamatory meaning can be found in the plainmeaning of the words published or the surrounding circumstances. Proof that the plaintiff’s reputation is actually damaged is notrequired, and the motive of the statement made is irrelevant in this analysis. [61] I noted above that Mr. Newton’s alleged purposes for the published

Article had not been achieved by the Article’s content. Ifind, in fact, that a plain reading of the Article, including its hyperlinked title on the EPA website, would lead “an ordinary, right-thinking member of society” to believe that the

Article is about Mr. Engel’s conduct of LERB complaints. Further, that reader wouldeasily tend to lower their esteem of Mr. Engel due to several statements in the Article. Mr. Engel noted that some terms in the Articleheld particular meaning for a lawyer. While fellow counsel would not be the subjects of the objective test that must be applied, Inonetheless find that even a non-lawyer would easily lower their opinion of Mr. Engel after reading the Article. [62] It has been recognized by the Supreme Court that defamation of character also has specific importance within the legalprofession.

From Hill v Church of Scientology of Toronto (1995), (SCC), 30 C.R.R. (2d) 189, 25 C.C.L.T. (2d) 89, 184N.R. 1, (sub nom. Manning v Hill) 126 D.L.R. (4th) 129, 24 O.R. (3d) 865 (note), 84 O.A.C. 1, [1995] 2 S.C.R. 1130, 1995 CarswellOnt396, 1995 CarswellOnt 534 (S.C.C): The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer’spractice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness.

It is thecornerstone of a lawyer’s professional life. [63] I would go on to note that the integrity of the justice system and each of its members is of paramount importance to all citizensit serves. Those involved in serving the justice system – counsel, the judiciary, the police and related societies – should show due respectto all other members and ensure that careless aspersions and resentful complaints are not hastily strewn about. Defamatory comments ofthose who work in the justice system from within the justice system are particularly more persuasive than the same complaints madefrom an outside source.

I include police officers, agencies and associations in that group. [64] I find the

Article in general to be defamatory in fact, opinion and tone. Further, the circumstances and source of publicationincrease the defamatory effects. Any ordinary, right-thinking member of society would objectively find that the following statements(and the

Article overall) impute that Mr. Engel (and potentially other counsel associated with him) is incompetent, unskilled andineffective as a lawyer. To a lesser extent, the

Article also implies ulterior motives might be present in Mr. Engel’s (and potentially othercounsel associated with him) practice. Specifically I find the following statements to be defamatory (my own emphasis added) : • Now, one would think that with 9 years’ experience and 28 attempts under their collective belts that the CTLA/Mr. Engle/TomEngle (sic) Law Office would get pretty good at this process.

The shocking truth, and some would say disturbing reality is that thisself-appointed oversight group has yet to win one appeal. • So in more than a third of the cases the CTLA/Engle Law Office started something and failed to finish. • After 28 incidents of cry wolf, when does someone call B.S.? • Is this incompetence or is something else happening here. • Is this a record of extreme incompetence or is there something else going on here. • The shocking truth, and some would say disturbing reality is that this self-appointed oversight group ... • At the end of the day however when do these complaints and appeals become frivolous and vexatious. [65] The effect of framing the issue of competence as a hypothetical question does not, in the objective eyes of a reasonable person,detract from the clear implication made. “The ‘ordinary’ meaning includes any implied, inferential or indirect meaning that a reasonableperson would draw from the words,” Vellacott v Laliberte, 2012 SKQB 23 at 22.

Further, the statement is made twice, and the additionof the word “extreme” emphasizes the allegation, removing any suggestion of conjectural hyperbole. Broadening the subject of theArticle to include members of Mr. Engel’s office and members of the CTLA likewise does not detract from the fact that Mr. Engel isreferred to repeatedly, and is the only individual specifically identified. Further, the hyperlink title on the front page of the website(while the title does not appear on the

Article itself) starts with the words “Tom Engel.” Clearly Mr. Engel is the main subject of theArticle and all of its descriptions. Defences [66] Having found defamation, the onus now shifts to the defendants to establish that one of the available defences applies. In theirpleadings and in argument the defendants put forward the claims of truth, fair comment and qualified privilege. Truth [67] As I indicated earlier, the issue of the different

interpretations of the cases brought by Mr. Engel and his office to the LERB issomewhat of a red herring when determining whether or not the

Article was defamatory. However, that may not be so when assessingthe defence of truth. Regarding the allegations about “success” at the LERB, the defendants submit that the statements made are

substantially true. They argue that Mr. Newton’s

interpretation and criteria used support the conclusions that he asserted in the Article.They argue that success would, in the eyes of a fair-minded layman, include the final outcome after all appeals had been exhausted, justas Mr. Newton insisted he himself did. [68] I cannot agree with this submission. Had Mr. Newton included this criteria and explained the selection process he used whenasserting that “0 for 28” record, truth might well apply. However that was not included in the

Article at all. In fact, the Articlespecifically referred to the LERB and at no time made any other mention of another level of court. The words used in the

Article in theirentirety were not true, whether or not Mr. Newton was truthful to this Court regarding his selection of cases to analyze and report. TheArticle implies that at the time of writing “28” was the total number of cases Mr. Engel et al had represented at the LERB and that eachand every one of them was “unsuccessful” without qualification. Without considering whether or not an interlocutory or proceduralresult could be considered a success or not, that is clearly not correct.

Further one case was identified as a “success” (the Pennercomplaint) even when considering the Newton criteria, and one was determined not to be related to Mr. Engel. [69] The defence of truth was not led to respond to the allegations of incompetence or impugned motive by Mr. Engel. In fact, thedirect evidence from Mr. Newton is directly contrary to either of those assertions. The defence of truth does not discharge the defendantsfrom the above finding.

Qualified Privilege [70] Defamatory statements can be defended by the assertion of qualified privilege (unless and until a finding of malice is made.) Irely again on Kent for the

summary of the defence found at paragraph 117: 117 Defamatory statements are protected by qualified privilege where they are “fairly made on a privileged occasion by a persondischarging some public or private duty, or... to pursue or protect some private interest, provided it is made to a person with acorresponding interest in receiving it”: Brown on Defamation, 2d ed, (Toronto: Carswell, 2014) at para 13.1 [Brown on Defamation].The duty can be legal, social or moral.

The test is whether people of ordinary intelligence and moral principle, or right minded people,would consider it a duty to communicate the information: ibid, see also Hill v. Church of Scientology of Toronto, (SCC),[1995] 2 S.C.R. 1130 (S.C.C.) at para 143 [Hill].

However, the Supreme Court noted in Grant that the threshold to establish qualifiedprivilege is high and that the defence has been of little assistance to media organizations because “qualified privilege has traditionallybeen grounded in special relationship characterized by a ‘duty’ to communicate the information and a reciprocal ‘interest’ in receiving it.The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large”:Grant at paras 34-37. [71] The defendants allege that the EPA does in fact have a moral or social duty to communicate with its members about thecomplaints process against them.

It was argued, but not fully established in evidence, that complaints to the LERB significantly impactedan officer’s career. However I agree that a complaint likely would impact an officer’s emotional health and potentially cause stress. [72] The EPA as an organization does meet the definition of a group holding [a] common interest[s]. Communications to membersregarding a common interest can also meet the requirements for being the topic of qualified privilege. Clearly, Mr.

Newton expressed hisintention to provide this information to the members of the EPA through publishing it on the website, noting his concern for members’needs to understand the typical outcome of what he asserted was a stressful process for members. [73] However the

Article does not reflect that goal. If it had, likely the

Article would not have been defamatory, and this defencewould apply. However the information was incomplete (at the very least) as it was provided. The imputed statements and innuendoregarding competence, “crying wolf” and “B.S.” or the reference to “self-appointed” overseer do not meet the test for qualified privilege– there was certainly no “duty” to communicate such information to anyone, even members of the EPA. The information and opinionsexpressed went far beyond any duty, even where they were supported by some (however insufficient) evidence.

Any duty of thedefendants has been exceeded. [74] The defendants have, again, failed to discharge their onus to show that the defence of qualified privilege applies to thedefamatory statements. Fair Comment [75] The elements of this defence was re-affirmed in Simpson v Mair, 2008 SCC 40 at paragraph 1: the elements of the “fair comment” defence is as follows: (

a) the comment must be on a matter of public interest; (

b) the comment must be based on fact; (

c) the comment, though it can include inferences of fact, must be recognisable as comment; (

d) the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts? (

e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant wasactuated by express malice. [76] “The court must consider that “[some] segment of the public must have a genuine stake in knowing about the matterpublished,” Kent, para 123. Obviously criticism of the proper administration of justice and conduct of counsel is a matter of publicinterest. Similarly, official complaints made of police conduct and their outcome is a subject of interest to the members of the EPA, but

likely public interest in general. The first element of the defence is well met in this case. [77] The next two elements are more problematic for the defendants. For some of the impugned statements they are based in factbut are not obviously recognizable as comment. This applies to the “0 for 28” in particular. The statement – as evidenced at trial – isopen to a great deal of

interpretation however as written appears to be absolute fact. It is simply not recognizable as comment. [78] Of the remainder of the defamatory comments, I find that both references to “self-appointed oversight group” are not foundedin fact. Neither is “started something and failed to finish” (as it implies blameworthiness to counsel, which was not established inevidence). Both references to “incompetence” are explicitly not founded in fact (and directly contradicted by Mr. Newton’s evidence),however they are clearly comment.

Finally, “frivolous and vexatious” were also not shown to be based on any evidence. [79] The sentence “After 28 incidents of cry wolf, when does someone call B.S.?” may meet the factors of being based in fact,make inferences from fact and is obviously comment. Further, based on the evidence at trial, any person could honestly express thatopinion on the proved facts. In particular, if one were to apply the same parameters of “ultimate outcome” to the assessment of casesconsidered by the LERB that Mr.

Newton did, one might find that 28 claims were apparently unfounded, as implied by the phrases used. [80] Without addressing the issue of malice yet, I find that this single phrase identified is fairly defended as fair comment by thedefendants. However, the remaining statements and overall content and tone of the

Article remain unaffected by this asserted defence. Malice [81] In Hill, the Supreme Court defined malice simply: Malice is commonly understood, in the popular sense, as spite or ill-will. However, it also includes, as Dickson J. pointed out in dissentin Cherneskey, supra, at p. 1099, “any indirect motive or ulterior purpose” that conflicts with the sense of duty or the mutual interestwhich the occasion created. [82] Having found that the defences pled discharge only one instance of defamation found, the issue of malice is moot. Further, itwas noted that the plaintiff’s statement of claim did not plead malice.

Malice in the case of defamation is a consideration of the state ofmind of a defendant(s). If a Court finds that the subjective intention of the defendant is to deliberately injure the plaintiff, then thedefences of fair comment or qualified privilege cannot be relied upon. [83] As indicated, this is a moot point. However, if I am wrong in my above reasoning, I would not find that malice has beenestablished such that it would defeat an otherwise valid defence. There is insufficient evidence to find that the defamatory statementsmade were made in the face of knowing that they were false, or motivated by ill will.

In particular this finding applies to the EPA.Regarding Mr. Newton, while I am not wholly satisfied with his explanations regarding the omission of the Penner complaint, I cannotfind that it was done so recklessly or knowingly. While I have concerns about Mr. Newton’s timing of the LERB’s fresh finding againsthim compared to the publication of the Article, they are not sufficient to find actual malice founded in spite. I do find that Mr. Newton’swriting was careless, as was the EPA for approving publication without fact-checking in any independent way.

Conclusion re: Defamation [84] In sum, I find the general tenor, plain meaning and specific comments of the

Article to be defamatory. Save for the onestatement identified, the defamation is not defended by any of the available defences. The

Article was clearly directed at Mr. Engelprimarily and repeatedly defamed him professionally. Damages [85] In determining damages I am urged to consider the nature and seriousness of the defamation; the mode and extent ofpublication; the publication on the internet; the position and standing of the plaintiff in the community; the importance and reputation forthe plaintiff’s employment or profession; intangible and subjective elements; stature of the defendant; and other available remedies. [86] Many of these factors blend together; the fact that Mr.

Engel is a lawyer makes the phrases used harmful, affects his standingin the community, and is the basis on which a damaged reputation may affect his profession. In the materials of the defendants, I wasprovided portions of the loose leaf service Brown on Defamation (Carswell, 2016 – release 4). I quote: “Particularly damaging is anysuggestion that he or she has been disbarred, or is professionally unfaithful, incompetent, or deceitful toward his or her client,” p. 4-260,referring to the findings of MacFarland J. in Wiley v.

Toronto Star Newspapers Ltd. (1988), (ON SC), 65 O.R. (2d)31 at42(H.C.), varied as to costs and affirmed (1990), (ON CA), 74 O.R. (2d) 100 (C.A.): “To suggest a lawyer hasbeen incompetent, or worse, deceitful toward his clients is probably the worst one can say about him professionally.” Hill alsoemphasizes the point that reputation is of special significance to a lawyer. [87] I agree that given Mr. Engel’s profession, the statements in the

Article are particularly injurious. The

Article explicitly refersto incompetence, frivolous and vexatious conduct which implicitly suggests dishonest motives and overall suggests professionalimpropriety. Combined, when considering the lengthy and public career of the plaintiff, are all damaging to his reputation as a lawyer,and to his position and standing in the community. [88] There was no evidence before the Court regarding the actual readership of the EPA’s website. However it was put before theCourt that the

Article could have been distributed by email, or by posting it to the private portion of the EPA website. Instead, the Articlewas published on the public portion of the website, the title was a hyperlink on the front page of the website, and the

Article was one ofthe first returned searches when the search engine Google was used to search Mr. Engel’s name. The

Article remained available on the

website – even after Mr. Engel complained to Mr. Simioni – for over a month, until counsel wrote a demand letter that it be removed. [89] No apology was offered to Mr. Engel at any time. The sole remedy offered was to put the responsibility on the plaintiff’sshoulders by suggesting he draft a rebuttal. However that offer was to be followed up by Mr. Newton, which he failed to do. [90] The plaintiff seeks a damage award of $125,000. This amount represents general, aggravated and exemplary damages. It wasargued that almost all of the factors identified were “high scoring” and that any amount less than the one sought would be a “token” andnot reflect the impact the

Article had on Mr. Engel personally and professionally. [91] The plaintiff relied on a series of cases where damages were awarded to counsel who were the subjects of defamation. Thosecases ranged from $20,000 to $1.3 million. The latter amount stems from the rather extraordinary facts of the Hill case and is notparticularly relevant to the case at bar. Aside from Hill, the highest award for defamation of a lawyer was $140,000 in the case of Botiukv Toronto Free Press Publishing Ltd. (SCC), [1995] 3 S.C.R. 3. [92] I reviewed the cases provided by the plaintiff; Botiuk seems to be most similar to this case at bar.

In Botiuk, the SupremeCourt found that the multiple publications had clearly implied the plaintiff, a lawyer, was dishonourable and dishonest, questioning hisintegrity. The content of the defamatory statements was similar however more serious than those before me. Further I note that theconduct was far more deliberate and serious than in the case at bar, and the Supreme Court considered the recklessness (directly in theface of duty of care they were found to have) of many of the parties to be aggravating. I have made no such finding here.

The award wasfor $140,000 plus pre-judgment interest plus costs. [93] Summarized in another case of the plaintiff was Warman v Grosvenor, 2008 CarswellOnt 6629 (Sup Ct). There the defendantdefamed the plaintiff not in

article form (which I find to be a more formal publication, as here) but in comments posted to a website. Thelanguage used and accusations made were far more serious than here. I note the Court considered the internet to be “a means ofpublication like no other, given its ability to instantaneously send words throughout the world to the millions who have access tocomputers,” paragraph 35. I agree. Further, as here, the Court noted “The defendant has attacked the plaintiff’s professional and hispersonal reputation.

He has been given the opportunity to retract his comments, to apologize.” I agree that those two factors are presenthere as well. The Court found the plaintiff’s reputation, as a lawyer, for integrity and trustworthiness were of paramount importance. TheCourt indicated that damages of $175,000 would have been appropriate, however that included a finding of damages for assault, and afinding that the defamation was malicious. [94] In Warman v Fromm, 2007 CarswellOnt 9648 (Sup Ct), the plaintiff was awarded a total of $30,000 in damages for generaland aggravated damages resulting from defamatory postings.

As here, the same plaintiff as above was a lawyer, and the defamatorycomments were published on a website. Many of the defamatory allegations made by the defendant were more serious in tone andmeaning. However I do find that many were similar to the phrases used here, in particular the phrase “One-man thought police agency.”Other insinuations were similar as well. That said, there were nine postings all together, totalling far more content and availabilityduration than what has been found here. $20,000 in general and $10,000 in aggravated damages was ordered.

Despite significant findingsof malice, no punitive damages were awarded. [95] The cases provided by the defendants range from $1.00 to the Kent decision of $150,000 for general damages. I am urged toconsider that this circumstance is at the low end of defamation liability and to make an order between $1,000 to $5,000. I cannot agree.The cases cited at such low ranges were significantly different, and lacking in many of the aggravating factors I find to be present here. [96] I note that general damages in defamation is presumed from the publication of the statement by

Section 2 of The DefamationAct, RSA 2000, c D-7 and the common law. Special damages have not been alleged. It has long been recognized that there is often aninability to quantify loss to a plaintiff. Mr. Engel summarized this by stating simply, “You don’t know what business you don’t get.” Iagree with the Kent decision: “[there is] little to be gained from a detailed comparison of awards.” However I was provided no otherestimation of damages to rely upon, other than the cases provided. [97] I make the following findings: The

Article may have had a narrow targeted audience base, however that audience base wereall working members of the justice system whose opinions would most likely be lowered regarding the plaintiff. Further, the

Article wasavailable to anyone and easily found by anyone with a search function on their phone or computer. The evidence of Mr. Klassenexpressly shows how easily it was found when he conducted a neutral search. I find that the evidence is that the plaintiff is a well-regarded member of the legal community, particularly among his colleagues within the CTLA and even by the defendant Mr. Newton.Mr. Engel’s response in expressing disappointment, distress, and concern for his reputation was both measured and reasonable. I findthat while I am concerned about the author Mr. Newton’s motives, I find no malice as a whole. However Mr. Engel should have beencontacted even before the

Article was published, or efforts to remedy considered after he complained. Yet, no retraction, correction orapology was ever made. I consider all of these factors when I consider the general damage award. [98] I find the direction of the Supreme Court in Hill eliminates the availability of aggravated damages here: 191 Aggravated damages may be awarded in circumstances where the defendant’s conduct has been particularly high-handed oroppressive, thereby increasing the plaintiff’s humiliation and anxiety arising from the libellous statement.

The nature of these damageswas aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, in these words, at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress —the humiliation, indignation, anxiety, grief, fear and the like — suffered by the plaintiff as a result of being defamed, the plaintiff may beentitled to what has come to be known as “aggravated damages.” 192 These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous andmalicious conduct.

Like general or special damages, they are compensatory in nature. Their assessment requires consideration by thejury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. Theyrepresent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

193 If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff , either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. (emphasis added) [ 99 ] I make no such findings of the defendants. [ 100 ] I make a finding of joint and several liability. Having regard to all of the circumstances outlined above, I find that Mr.

Engel is entitled to damages reflective of the significant distress and damage as a result of the defamatory Article. Mr. Engel is awarded $50,000 against the defendants. I make no order for aggravated or punitive damages. This award amount is based on a consideration of all factors before the Court, and comparing those factors to the decisions provided as precedent. Conclusion [ 101 ] The plaintiff has established that he was defamed by the defendants on their website. The plaintiff is awarded general damages of $50,000 against the defendants on a joint and several basis.

No awards for aggravated or special damages have been made out. [ 102 ] At the request of counsel, costs may be either agreed upon or written submissions may be provided within 45 days of this decision. Heard on the 6 th , 7 th , and 9 th days of December, 2016 and the 3 rd and 15 th days of February, 2017. Dated at the City of Edmonton, Alberta, this 9 th day of August, 2017. Avril B. Inglis J.C.Q.B.A. Appearances: Gary B. Romanchuk, Q.C. & Imran A. Qureshi Ogilvie LLP for the Plaintiff Daniel C.P. Stachnik, Q.C. Miller Thomson LLP for the Defendants

Appendix A Edmonton Police Association In Alberta civilian oversight of the police is accomplished through the Law Enforcement Review Board (LERB). This volunteer tribunal is charged with hearing appeals of decisions on discipline within police agencies. It is the first level of appeal for those in the community who feel their issues with police officers have not been dealt with properly. Anyone can appeal a decision of a Chief of Police on a complaint. The appellant does not need to be directly involved in the matter to start the appeal process rolling.

Here is a fairly common example: A citizen witnesses the arrest of an individual. In that citizen’s mind the arresting officer used too much force to affect (sic) the arrest. He submits a written letter of complaint to the Chief of police. The Chief, by law, is required to investigate the complaint. At the conclusion of the complaint the Chief rules that the officer did nothing wrong and communicates all the particulars of the investigation to the complainant. The complainant, not satisfied with the Chief’s explanation, appeals the matter to the LERB.

The LERB can, and often does, hold a hearing into the complaint by calling witnesses and receiving evidence. At the conclusion, the LERB has the authority to either dismiss the whole matter, return the complaint to the Chief with an instruction to hold a disciplinary hearing, or make its own finding of guilt and order a sanction. In most cases the matter is returned to the Chief to hold a hearing. From here another quasi judicial trial takes place that has two possible outcomes. Guilty or not guilty.

At this point the complainant has the ability in law to appeal once again to the LERB should they not be satisfied with the Chief’s decision. The LERB once again examines the record of the whole matter and decides if it is going to retry the complaint. Usually the LERB holds a completely new trail (sic). This whole process usually takes in excess of 4 years to complete. Enter the Edmonton Criminal Trial Lawyers Association (CTLA) Policing Committee and the Tom Engel Law Office. The CTLA and Mr.

Engel have been prolific sources of complaints and appeals to the Edmonton Police Service and the LERB. To date Mr. Engle (sic) / the CTLA / the Engle (sic) Law Office have completed appeals at the LERB a total of 28 times. All that since 1999. Now, one would think that with 9 years experience and 28 attempts under their collective belts that the CTLA / Mr. Engle (sic) / Tom Engle (sic) Law office would get pretty good at this process. The shocking truth, and some would say disturbing reality is that this self appointed oversight group has yet to win one appeal. They are 0 for 28!

This dismal record happened in a process where it is not necessary to prove anything beyond a reasonable doubt like in criminal court. No, all they had to prove was it was more likely than not, that things went the way the CTLA / Engle (sic) Law Office said it did. Is this incompetence or is something else happening here. Now to be fair, there are three matters that are still in the convoluted process demonstrated by the example.

One case is back to the LERB after having been heard by the Chief who was ordered to hold the hearing by the LERB, one case resulted in a dismissal and an order for the Chief to hold a hearing, and in one matter the LERB’s decision was quashed by the Court of Appeal and sent beck (sic) for another hearing. Is this a record of extreme incompetence or is there something else going on here. I note that of the 28 files that went west, 5 of them were dismissed for lack of prosecution. What that means is that in five cases the appellant started the process and failed to finish, or did nothing.

In another 5 cases the CTLA / Engle (sic) Law Office lawyer withdrew the complaint. So in more than a third of the cases the CTLA / Engle (sic) Law Office started something and failed to finish. I seem to recall several occasions where there has been a tremendous amount of hoopla and media attention around a complaint and allegations. I recall images of Tom Engel standing before the cameras essentially trying the matter in the media. I don’t recall any comment ever by Mr. Engle (sic) when he or they failed to make a case.

At the end of the day however when do these complaints and appeals become frivolous and vexatious. After 28 incidents of cry wolf, when does someone call B.S.?

Bill Newton Director