Korniyenko v Edmonton (Police Service), 2021 ABQB 1022

Court of Queen’s Bench of Alberta Citation: Korniyenko v Edmonton (Police Service), 2021 ABQB 1022 Date: 20211223 Docket: 1803 08429 Registry: Edmonton Between: Pavlo Korniyenko Applicant - and - Rod Knecht, Chief of Edmonton Police Services Respondent - and - Officers of Edmonton Police Services Ottenbreit, Thompson, Durec, Hinks, Huffman and Dreilich Respondents _______________________________________________________ Decision

of the Honourable Madam Justice Avril B. Inglis _______________________________________________________ Background [1] The applicant, Mr. Korniyenko, seeks judicial review of the decision of the Law Enforcement Review Board (LERB)stemming from his complaint of violations against several officers under the Police Act, RSA 2000, c. P-17. That original decision isKorniyenko v Edmonton (Police Service), 2018 ABLERB 5 , 2018 ABLERB 005 (“Decision”). [2] The complaint originated one day short of a year (the deadline of the Police Act) after the arrest of the Applicant bymembers of the Edmonton Police Service (EPS).

It alleged breaches of the Applicant’s Charter rights and other wrong doings thatstemmed from the arrest and detention of the Applicant, and the search of the Applicant’s home that took place on February 15, 2015. [3] The applicant claimed that police seized items not related to the search warrant, including his dogs. He says that he toldofficers his parents would care for them but they had them seized by animal control instead. While detained, the applicant alleged hiscell was dirty and cold, and he was housed with another detainee who was sick and vomiting.

He claims the vomit is clearly visible onthe floor in the video of the cell. [4] As part of the Chief’s investigation into the complaint, further particulars were sought from applicant’s counsel on April 18,2016; counsel replied that he was not immediately able to provide the same, but received no acknowledgement or reply. An interview ofthe applicant was requested by the Civil Investigator Scherr.

Counsel for the applicant scheduled that on May 13, setting the date forMay 25, 2016. [5] The applicant attended the interview with counsel, who informed the investigator that the applicant could not makestatements that related to the pending charges, particularly before receiving disclosure and before his preliminary inquiry, set for June 8-9, 2016. The applicant alleges that the investigator was subsequently hostile. No follow-up of any kind was pursued with the applicantby the investigator.

The applicant took no further steps. [6] While the original complaint cited nine issues, only three were asserted by the applicant during the investigation of hiscomplaint due to his concerns about his pending charges. The EPS Chief considered only those three complaints and his decision wasreleased shortly after that: In a letter dated July 19, 2016, the Chief dismissed all of the Applicant’s complaints (the “Chief’sDisposition”). [7] The Applicant appealed to the LERB, which is a civilian tribunal. The appeal proceeded by way of written submissions only,at the direction of the LERB.

The applicant argued that the investigation into the complaint was grossly negligent, tainted and flawed asit was completed before the Applicant would have an opportunity to meaningfully participate, and that the Chief’s decision wasunreasonable as it did not correctly set out and apply the applicable law and policy relevant to the complaint. [8] The LERB dismissed the appeal in its entirety on January 23, 2018, finding that the original decision was reasonable, and theinvestigation was not tainted or grossly flawed.

Basis and Ground for review [9] The Applicant seeks judicial review of the Decision on the basis that it was unreasonable, did not consider all of thearguments made in the appeal, and did not provide cogent reasons for why the evidence of the officers was preferred to that of theApplicant.

His grounds relate to two aspects of the appeal before the LERB, being the adequacy of the Chief’s investigation into theApplicant's complaint and the reasonableness of the Chief’s disposition as it related to allegations #4, #9 and #10. [10] The applicant asks this court to quash the LERB decision and direct that disciplinary hearings be held for the involved EPSmembers.

In the alternative, he seeks an order that the Chief conduct a further investigation (presumably re-interviewing the applicant)now that the criminal charges have been concluded. [11] The applicant recognizes that standing for a non-party to seek judicial review is an issue in this matter. It is considered hereprior to the other arguments for and about the review (below) as the issue of standing is primarily dispositive of this application. [12] The LERB did not take a position on this application nor do they request any relief.

Applicable Legislation [13] Complaints about police conduct and service are dealt with under the Police Act. The relevant parts of

section 42.1 state: Complaints 42.1(1) Subject to subsection (2), a person may make a complaint respecting the conduct of a police officer.

(2) The following persons may make a complaint referred to in subsection (1): (

a) a person to whom the conduct complained of was directed; (

b) a person who was present at the time the incident occurred and witnessed the conduct complained of; (

c) an agent of a person referred to in clause (a); (

d) a person who (

i) was in a personal relationship with the person referred to in clause (

a) at the time the incident occurred, and (ii) suffered a loss, damage, distress, danger or inconvenience as a result of the conduct complained of. [ 14 ] Pursuant to subsections 43(1) and 45(1) of the Police Act all complaints with respect to the conduct of a police officer in his or her police service (other than those concerning the Chief) are to be referred to the Chief for investigation.

These complaints are to be screened and disposed of, with or without a full disciplinary hearing, in accordance with sections 45 to 48 of the Police Act . [ 15 ] Subject to subsection 43(4), a disciplinary hearing is required to be conducted where the Chief is of the opinion that the actions of a police officer constitute a contravention of the regulations governing the discipline or the performance of duty of police officers: section 45(3).

Put more simply, a hearing is required if the Chief decides there is a reasonable prospect of conviction for an offence under the Police Service Regulation, AR 356/90 ( Regulation ). Here the Chief concluded a full disciplinary hearing was not required. [ 16 ] Subsection 47(4) provides:

(4) On considering a matter that is the subject of a complaint, (

a) the chief of police or the chief’s designate, in the case of a complaint under

section 45 , or (

b) the commission, in the case of a complaint under

section 46 , may dismiss the matter or, subject to the regulations, take any action against the person in respect of whom the complaint is made that (

a) the chief of police or the chief’s designate, in the case of a complaint under

section 45 , or (

b) the commission, in the case of a complaint under

section 46 , considers proper in the circumstances. [ 17 ] Subsection 47(5) states: On making a decision after considering the matter in respect of which a complaint is made, (

a) the chief of police, in the case of a complaint under

section 45 , or (

b) the commission, in the case of a complaint under

section 46 , shall in writing advise the person against whom the complaint is made and the complainant (

a) of the findings of the hearing and any action taken or to be taken under subsection (4), or (

b) where a hearing is not held, of the disposition of the complaint and the grounds on which the disposition was made, and of the right of appeal provided for under this Act . [ 18 ] Subject to subsections 45(4) and (4.1), the complainant has the right to appeal the Chief’s decision/disposition (arising from their complaint pertaining to the conduct of a police officer) to the LERB. Subsection 48(2) provides: Appeals to the Board

(2) If a complaint has been made, the complainant may, within 30 days from the day the complainant was advised under section 47(5) of the determination of the complaint, appeal the matter to the Board by filing with the secretary to the Board a written notice of appeal setting out the grounds on which the appeal is based. [ 19 ] This right of appeal includes the complainant’s right to appeal the Chief’s dismissal of a complaint on the basis that there is no reasonable prospect of obtaining a discipline conviction: subsections 17(1)(

b) and 48(2) . [ 20 ] The LERB intervenes if the decision was unreasonable or when there are other circumstances that engage the LERB’s civilian oversight mandate.

The LERB’s civilian mandate will only be engaged where there is a lack of transparency, or the investigation or process is in some way tainted, flawed or grossly inadequate: Newton v Criminal Trial Lawyers Association , 2010 ABCA 399 . [ 21 ] The procedure for the conduct of the LERB appeal is set out in s of the Police Act . [ 22 ] There is no provision in the Police Act which expressly gives the complainant the authority to seek judicial review of the LERB’s decision in the Court of Queen’s Bench. However, the LERB’s decision may be appealable to the Court of Appeal.

Section 18

provides: Appeal to Court of Appeal 18 The decision of the Board in respect of a matter appealed to it under

section 48 may, (

a) within 30 days from the day that the Board gives its decision, and (

b) with the permission of a single judge of the Court of Appeal, be appealed to the Court of Appeal on a question of law. [ 23 ] Leave is appropriate where the proposed appeal involves a significant question of law, and when the appeal has a reasonable prospect of success: Edmonton Police Service v Furlong , 2013 ABCA 34 at para 7 ; Edmonton Police Service v Alberta (Law Enforcement Review Board) , 2012 ABCA 370 at para 7 ; and Sizer v Calgary (Police Service) , 2017 ABCA 257 at para 11 [ Sizer ] . Argument [ 24 ] Does the applicant have standing to seek judicial review of the Board’s decision?

The applicant relies on Kozina v Knecht , 2019 ABQB 355 (“ Kozina ”)– which they argue is sounder and more persuasive than Campeau v Knecht , 2018 ABQB 504 (“ Campeau ,” see below). Further, Kozina is the subsequent decision that considered Campeau as well as other authorities. In Kozina , the applicant pursued the same administrative remedies as here, with the same results from the LERB. Judicial review was sought from this Court.

Burrows J. heard Kozina’s application in two parts, determining the issue of standing first before considering the judicial review. [ 25 ] Burrows J. considered prior cases that addressed the issue of standing and then considered at length the provisions of the Police Act . He found the applicant to be “an aggrieved person,” one of a small group who are given the right to complain of police conduct by the Police Act . He found that Kozina was directly affected by the conduct in question (the issue, as here, was the arrest of the applicant; however, Mr. Kozina alleged significant physical abuse).

Burrows J. noted the following: the applicant had a special statutory right to be kept informed of the investigation process and progress. He had the limited right to participate under the Police Act , and the process would likely end if he did not. Further, the Police Act gave Mr. Kozina the right to appeal to the Board from the presiding officer’s decision. He had standing before the board. Finally, he had the right to seek leave to appeal the Board’s decision to the Alberta Court of Appeal on a question of law. [ 26 ] These factors all led Burrows J. to the finding that Mr.

Kozina had standing to seek judicial review, at paras 31-32: But in my view, by giving the complainant the rights in relation to the process which it did, the Legislature recognized that the complainant has a personal interest in the just determination of their complaint — that a complainant in Mr. Kozina’s position is an aggrieved person. That personal interest is in addition to the interest of the Chief to maintain high disciplinary standards among the members of his police service, and to ensure they do not commit offences under federal or provincial statutes.

It is in addition to the interest of the public in having a police force, the members of which conduct themselves appropriately. It is an interest which gives Mr.

Kozina standing to seek judicial review of the decision of the Board. [ 27 ] As such, the Applicant here argues that he also has standing due to his special role in initiating proceedings under the Police Act and the ability to appeal the initial decision; he is a “person aggrieved.” [ 28 ] In the alternative, if this Court finds that the applicant does not have personal interest standing, the applicant argues that he should be granted standing because there is a public interest in the proceedings.

Citing Canada (A.G.) v Downtown Eastside Sex Workers , 2012 SCC 45 (“ Downtown ” ) at para 37 , the applicant says he meets the following test for public interest standing: a. Whether there is a serious justiciable issue raised; b. Whether the Applicant has a real stake or a genuine interest in the matter; and c.

Whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts. [ 29 ] To be “serious” the Court must find that there is a substantial constitutional, important or “far from frivolous” issue. [ 30 ] The Applicant’s “real stake” means whether they have a “genuine interest” and the Applicant’s “reputation, continuing interest and link to the claim” are factors. [ 31 ] The question of whether the proposed suit is reasonable and effective can include many considerations, including economy, context, legality principles, the Applicant’s resources and expertise, public interest that transcends the interests of those most directly affected, realistic alternatives and the potential impact of the proceedings on the rights of others ( Downtown , paras 50-51).

The applicant argues that if the Court compares these factors between this application and seeking the Court of Appeal’s permission for appeal pursuant to the Police Act , this application should be favoured. [ 32 ] Ultimately, the applicant argues, the Police Act ’s purpose and intention – to ensure proper oversight and accountability of police conduct – cannot be met if this applicant is prevented from receiving judicial review from this Court.

Doing so is contrary to the public interest and the purpose of the Police Act itself. [ 33 ] Counsel for the Chief argues that the applicant is incorrect that the role of the complainant is central to the

interpretation of the Police Act and its sections. Instead, it is the accused officers that have a distinct and particular interest. It is only they that are at risk

of jeopardy of negative consequences to their careers, economic interests, reputations and are at risk of dismissal. There is no parallel interest for the applicant; there is no potential remedy through this process or further action that affects the applicant in any way. The Chief has obligations pursuant to the Police Act : he is required to attend to the interests of the police service as a whole, including ensuring the complaint is investigated. The complainant has a right to bring the Chief’s Decision to the LERB as an appeal.

There is a further limited ability to appeal to the Court of Appeal. [ 34 ] Finally, the Chief argues that the law recognizes only two forms of standing: personal interest standing and public interest standing. The complainant does not meet the required criteria for either. Courts weigh a number of factors in analyzing personal interest standing. An important factor is how directly the challenged administrative act will affect the legally-recognized interests of the applicant.

If the applicant's property rights, economic rights, or legally recognized personal interests (such as the applicant’s liberty) will be affected by the administrative decision, the applicant will likely have standing.

Having an “interest” in the outcome is not the same as having standing. [ 35 ] The Chief notes that, similar to Campeau , the courts in Alberta have held repeatedly that complainants against a professional to their governing body do not have standing to initiate applications for judicial review, describing Kozina as an outlier: Friends of the Old Man River Society v Association of Professional Engineers, Geologists and Geophysicists of Alberta , 2001 ABCA 107 (“ Old Man River ” , the Court held that the disciplinary process was a matter between the governing body and members, who were the only parties to the investigation and disciplinary process; further the decision in question did not affect the rights of the applicants so judicial review was not available); In Metropolitan Centre Inc v Abugov Kaspar Architecture, Engineering, Interior Design , 2007 ABQB 419 (“ Metropolitan ”, which followed Old Man River by finding the council’s actions had no impact on the complainants and as such they had no standing to seek judicial review); Mitten v College of Alberta Psychologists , 2010 ABCA 159 ( “Mitten” , which held that the complainant had no standing for judicial review on the merits of a decision); Davidoff v Law Society of Alberta , 2014 ABQB 370 (the Court held, again, that the applicant was not a party nor were his personal or economic interests affected by the decisions and thus had no standing for judicial review.

Also cited, with similar results are: Tran v College of Physicians and Surgeons of Alberta , 2017 ABQB 337 [Tran] , affirmed 2018 ABCA 95 ; Al-Ghamdi v College and Association of Registered Nurses of Alberta , 2017 ABQB 685 affirmed 2020 ABCA 81 ; UAlberta Pro-Life v Governors of the University of Alberta , 2020 ABCA 1 ; Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2019 ABCA 341 ; Warman v Law Society of Alberta , 2015 ABCA 368 . [ 36 ] At para 28 of Metropolitan the Court held that complainants, as unaffected parties, should not be permitted second-guess the decisions of regulators. [ 37 ] The Chief also notes that the Police Act does not require that the complaining person be the one who is affected or aggrieved by the conduct of the police.

For example, pursuant to

section 48 of the Police Act a witness to the conduct who filed a complaint has the same rights to appeal the initial decision to the LERB as a complaining party against whom the action allegedly occurred. The Chief argues that the bare ability to make a complaint does not create party status, “aggrieved” status or standing.

Only at the Court of Appeal level can a complainant become a party – which does not create the same status in order to seek a hearing on the merits through judicial review. [ 38 ] The respondent officers agree with the Chief and submit that the applicant has not met the burden of demonstrating standing to bring this Application. They argue that the role of the complainant/applicant is not central to determining the intentions of the Police Act .

The focus is instead on the conduct of officers and appropriate disciplinary measures. [ 39 ] The officers argue that the respondent officers have distinct interests in these proceedings: They are the individuals in jeopardy of discipline that might negatively impact their careers, economic and other person interests. This is a stark contrast to the applicant who faces no repercussions nor any remedy under the Police Act . It does not provide any role for the Court of Queen's Bench. The Police Act assigns the role of reviewing the Chief's decision for reasonableness to the LERB.

There is no further level of review by the Court of Queen's Bench provided for within the Police Act . [ 40 ] This respondent focuses on two cases, starting with Newton v Criminal Trial Lawyers Association , 2010 ABCA 399 (“ Newton ”). There the Appeal Court held that “to turn an absence of standing into a right to standing is inconsistent with the scheme of the Police Act , and indeed turns it on its head.

If the Legislature had wanted to give the complainant full standing at the initial hearing it would have done so; but it only gave the complainant a right of appeal,” (paras 69-70). [ 41 ] Subsequently, in Campeau , the applicant made the same argument as this applicant. There, Germain J. considered the Police Act and held that the complainant has the same interest as any member of the public, and that the regulator, not the complainant, has the role of ensuring members comply with the applicable standards.

The complaining parties only have standing in the context of procedural fairness complaints and are not entitled to judicial review of the reasonable of the LERB’ decision on the merits. [ 42 ] Further, Germain J. noted, at para 22, that “before one can judicially review a decision of the Police Chief of the type under review in this case, you need to establish either a personal or economic interest.” Here, the responding officers argue that the applicant has no interest at stake as the LERB decision does not affect him, just as the complainant did not have an interest in Campeau . [ 43 ] Regarding the contrary decision of Kozina , they simply argue that its conclusion re: standing for the complainant is expressly contrary to the line of authority which led to Campeau and as such Campeau should be followed. [ 44 ] They rely on Alberta Liquor Store Association v Alberta (Gaming and Liquor Commission) (“ Alberta Liquor Store ”) 2006 ABQB 904 where that court held at para 8-9: Thus, if the applicant's property rights, economic rights, or legally recognized personal interests (such as the applicant's liberty) will be affected by the administrative decision, the applicant will likely have standing.

So, for example, if the applicant's license has been revoked, resulting in a direct impact on the interests of the applicant, the applicant is bound to be granted standing. There is no finite list of interests that the law will recognize in determining issues of standing, but business, professional, employment and property interests have traditionally been recognized.

[ 45 ] The respondent officers then argue that this applicant has conflated harm allegedly done to him (i.e. at the time of the impugned arrest) and harm that flows from the LERB decision, which is that actual factor relevant to standing.

It is the latter that determines the issue of standing, and the Applicant fails to establish he is an “aggrieved person.” [ 46 ] As such, the respondent officers argue that the proper forum for this Applicant to address the alleged harm done is a civil action, which has already been commenced. [ 47 ] They conclude their argument on the issue by noting that Campeau refused to grant the complainant public interest standing. They argue that this applicant has not demonstrated standing on this issue.

Relying on Downtown and the test already cited above, they argue that allowing judicial review effectively would relax the standing rules in the context of these complainant which can lead to an allocation of scarce judicial resources to far too broad claims, as the Supreme Court of Canada warned. [ 48 ] Further, Downtown holds that the principle of legality in question is not applicable to the issues raised by this Applicant, as the Supreme Court held that this principle is fundamentally concerned with the constitutionality of state action; that is not an issue raised in this application.

Analysis Issue 1: Personal Interest Standing [ 49 ] The Applicant contends that he has standing to challenge the reasonableness of the LERB Decision on the basis of his having both personal interest and pubic interest standing. [ 50 ] Slatter J. (as he then was) suggested in the case Alberta Liquor Store that if (para 9): the applicant’s property rights, economic rights, or legally recognized personal interests (such as the applicant’s liberty) will be affected by the administrative decision , the applicant will likely have standing. . ..

There is no finite list of interests that the law will recognize in determining issues of standing, but business, professional, employment and property interests have traditionally been recognized (emphasis added). [ 51 ] If the interests of the applicant are affected by the administrative decision, the applicant can be said to have been a “person aggrieved” by the decision: Alberta Liquor Store at para 7. If the applicant cannot establish that it is “aggrieved”, the applicant may still be able to convince the court that it should be entitled to challenge the administrative action in the public interest.

The granting of public interest standing to an applicant is within the discretion of the court: Alberta Liquor Store at para 7. [ 52 ] Relying upon Slatter J.’s decision in Alberta Liquor Store , Burrow J.’s in Kozina concluded at para 12 that Mr.

Kozina was an “aggrieved person” and therefore had personal interest standing, opining: In my view, though there are some contrary indications, these provisions constitute a relatively strong demonstration that the Legislature was of the view that a person who complains about the conduct of a police officer has a substantial and personal interest in the issue to be decided in the process established by the statute, in the process itself, and in the decisions made in it — that a person in Mr. Kozina’s position is an aggrieved person. [ 53 ] Burrows J. distinguished Mr.

Kozina’s special and personal interest in the subject matter and the complaint determination process set out in the Police Act from authorities where it was held that the statute in question did not recognize that the complainant had a special and personal interest distinct from that of the public generally (para 23). He acknowledged that the LERB’s decision did not affect Mr. Kozina’s economic rights.

However, he was of the view that it (para 28, emphasis added): affected a personal right — the right not to be physically abused by a police officer and to have consequences visited upon a police officer who physically abuses him. He has a significantly greater interest in the conduct of the police officers of whose conduct he complained, than has the public generally. [ 54 ] Burrows J. continued at para 29: 29 As previously noted, in my view, in its design of the complaint determination process in the Police Act , the Legislature recognized that persons in Mr.

Kozina’s position have a special and personal interest in the conduct complained of and the proper determination of their complaints — an interest beyond the interest of public generally. That it is not an economic interest is not determinative. It is the interest of a person who suffered bodily injury as a result of the actions taken by police officers at the time he was arrested.

The complaint process is a means by which a complainant may obtain an authoritative determination that he was the victim of physical abuse which caused significant injury , if that was the case, and to have the police officer who inflicted the abuse appropriately punished. That interest is perhaps not as tangible as an economic interest. But, in my view, it is the interest of an aggrieved person, distinct from the interest of the public generally. As I read the statute, that is also the view of the Legislature. [ 55 ] As noted above, Burrows J. ultimately concluded Mr.

Kozina had standing to seek judicial review of the impugned decision of the LERB. The decision focused on the various provisions of the Police Act , distinguishing the role of complainant from those relying on other such Acts , as well as the significant personal impact on the complainant (i.e. serious bodily injury). [ 56 ] When considering standing of the complainant/arrested person pursuant to the same Police Act , Germain J. came to a different conclusion in Campeau .

Germain J. explained at para 22: “Before one can judicially review a decision of the Police Chief of the type under review in this case, you need to establish either a personal or economic interest.” [ 57 ] In considering whether there was an issue in the judicial review that could be said to affect or be personal to the Applicant,

Germain J. noted at para 24 that the criminal charges against the Applicant were stayed and, as a result, nothing arising out of the misconduct as alleged about the officer could affect Mr. Campeau. [ 58 ] In addition, counsel for the Applicant had not brought to Germain J.’s attention any impact on any personal right, deprivation, or privilege that Mr. Campeau may suffer as a result of the outcome of the LERB appeal. He noted (at para 24): In fact, his view was sustained.

He felt in his complaint that when the officer made a statement in the internal police computer system (EPROS), about the credibility of inmates, it amounted to discipline worthy conduct. The Chief concluded that the posted comment was inappropriate so all that Mr. Campeau is arguing about is whether the punishment was sufficient. That does not give him the standing to advance a judicial review. [ 59 ] Germain J. concluded that in the context of the case, Mr.

Campeau had established neither a personal nor an economic interest, advising at para 22: “On this allegation he got the result he wanted- a finding that there was officer misconduct. The extent of the penalty imposed can be of no interest to him.” [ 60 ] In the circumstances of the case involving the Applicant, Mr. Korniyenko, the LERB’s decision to dismiss the appeal do no affect his property rights, economic rights (such as the Applicant’s business or livelihood), or legally recognized personal interests (such as the Applicant’s liberty).

The Applicant has not suffered similar serious consequences as a result of the decision of the LERB not to require the Chief to hold a formal disciplinary hearing. See: MH v College of Physician and Surgeons of Alberta , 2006 ABQB 395 (“ MH ”) at para 37 . [ 61 ] The charges against this Applicant, like in Campeau , were stayed and therefore his liberty is not at stake. The Applicant’s evidence with respect to his allegations that the police officers damaged his property is in conflict with the evidence of the officers.

If his property was in fact damaged, the appropriate course of action would be to seek compensation in a civil claim. That interest cannot be translated into the administrative interest alleged here. I understand from the submissions of counsel for the Respondent police officers that the Applicant has already commenced a civil action against them alleging that he has suffered damages as a result of their conduct. [ 62 ] Moreover, in contrast to the situation in Kozina , the Applicant did not suffer serious injuries at the hands of the police officers.

Given the injuries suffered, it could be contended that the police officers assaulted Mr. Kozina, which is not only arguably in contravention of section 5(1) (

i) of the Regulation - unlawful or unnecessary exercise of authority – but also a Criminal Code offence. Section 5(2) (i)(ii) states: (i) “unlawful or unnecessary exercise of authority” consists of one or both of the following: (ii) applying inappropriate force in circumstances in which force is used. [ 63 ] Here, it does not appear that any of the police officer’s actions complained of would amount to misconduct under subsections 5(1) and (2) of the Regulation . The search of the Applicant’s property was pursuant to a warrant, and therefore does not constitute an unlawful exercise of authority.

The Applicant complained that he was handcuffed when he was arrested, but that is standard practice when a person is arrested. He also complained about the conditions of the police van and the cell. This does not fall into any of the examples of “neglect of duty” laid out in section 5(2) (

h) of the Regulation . Moreover, I fail to see how punishing or disciplining the police officers involved in his arrest could compensate the Applicant for the alleged poor van and cell conditions. [ 64 ] Kozina and Campeau are not necessarily inconsistent decisions. They are factually different. It is that factual difference that drives the result here.

Under this statutory scheme, given the special involvement of the complainant, if the conduct complained of is significantly personal in nature such that the person has a specific stake in the LERB decision (for example, if they allege assault by the police as in Kozina ), the totality of the circumstances might warrant a finding of standing. [ 65 ] I agree with Burrow J.; the Applicant does have an interest in the process by which his complaint to the police was investigated and determined.

The Police Act gives the complainant particular rights as he is “recognized in the process as a person aggrieved” ( Kozina para 21 ). This is why there is a right of appeal to the LERB. It is also consistent with the conclusion reached in Campeau and Makis that the applicant had the right to challenge the fairness of the process afforded to them by means of a judicial review. [ 66 ] The LERB’s decision is narrow: whether or not to send the matter back to the Chief of Police to conduct a hearing. In Kozina , the complaint was of physical abuse.

Burrows J. noted that the LERB’s decision thus “ affected a personal right — the right not to be physically abused by a police officer and to have consequences visited upon a police officer who physically abuses him. He has a significantly greater interest in the conduct of the police officers of whose conduct he complained, than has the public generally,” (para 28). [ 67 ] The complaints here are not the same to those Kozina . That is a factual difference here that is significant to the issue. Mr.

Korniyenko complains of: unlawful or unnecessary of exercise of authority against several officers including the use of handcuffs during arrest; neglect of duty (specifically a delay in disclosure); an allegation of lying; and a complaint of service (regarding the condition of the transport vehicle and cell he was placed in). None of the complaints trigger the higher level of interest that Burrows J. found which is a significantly different decision on the issue. [ 68 ] This applicant is more similarly in the position of the applicant in Campeau .

There, the complaint was about the nature and quality of the investigation, and a second complaint alleging bias by the lead investigator of the complaint. Germain J. found that the complainant had no personal interest in the sanction that did not benefit him, even though the original finding was the one he had sought (officer misconduct). As such, Germain J. held “his standing to bring a judicial review in this case it is limited to the issue of the fairness of the police procedure which is statutorily described in the legislation and which was followed without deviation in this case.

Here, the Applicant raises no issue of procedural unfairness or process but raises the issue that the Chief’s decision is unreasonable,” (para 22). [ 69 ] I adopt the conclusion of Germain J. at para 23 in Campeau :

I also conclude that if one reviews the authorities referenced in the Tran decision it is clear that the fact that a statutory right to make a complaint, or the right of appeal to a tribunal in a dismissal of the first complaint, does not confer judicial review standing on a second complaint handled in a different way.

The test is not who can appeal as permitted by statute, the test is whether there is an issue in the judicial review that truly can be said to affect or be personal to the applicant. [ 70 ] I am not persuaded that the provisions for complainants under the Police Act are sufficiently different than other similar acts to automatically create standing for judicial review. A complainant has a right of appeal to the LERB and to the Court of Appeal on a question of law. The facts in this case do not warrant a finding that this Applicant has such a personal interest to trigger a third remedy as in Kozina . Mr.

Korniyenko does not have personal standing to seek a judicial review. Issue 2: Public Interest Standing [ 71 ] The Court has the discretion to grant public interest standing in the context of a judicial review. The Supreme Court set out the factors that a court must consider in exercising its discretion in the case Downtown .

At paragraph 37, the Supreme Court explained: In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: Borowski , at p. 598; Finlay , at p. 626; Canadian Council of Churches , at p. 253; Hy and Zel's , at p. 690; Chaoulli , at paras. 35 and 188.

The plaintiff seeking public interest standing must persuade the court that these factors, applied purposively and flexibly, favour granting standing. All of the other relevant considerations being equal, a plaintiff with standing as of right will generally be preferred. [ 72 ] The Applicant’s submissions do not to satisfy the three-part test, and in particular, the first factor, whether there is a serious justiciable issue raised, and the third factor. To constitute a “serious issue,” the question raised must be a “substantial” or “important” issue and the claim must be “far from frivolous”: Downtown at para 42.

The Court should not examine the merits of the case in other than a preliminary manner: Downtown at para 42. [ 73 ] The harms alleged by the Applicant do not raise a “serious”, “substantial” or “important” issue to the degree contemplated by the Supreme Court in Downtown . [ 74 ] In addition, the proposed judicial review is not the most reasonable and effective way to bring the Applicant’s issues before the courts. The Applicant is seeking redress for the harms he alleges were caused to him when he was arrested by the police in February 2015.

As noted above, he has already commenced a civil claim seeking compensation for these alleged harms. [ 75 ] The Applicant has not established either private or public interest standing to permit a judicial review of the reasonableness or merits of the LERB Decision. [ 76 ] Based upon the jurisprudence, it appears that the Applicant only has standing to challenge the fairness of the appeal process that was afforded to him under the Police Act .

He has no standing to challenge the reasonableness of the LERB Decision. [ 77 ] In Mitten , the Court of Appeal held complainants are entitled to seek judicial review if the appeal process itself is conducted in a fundamentally unfair manner. The Court observed at para 17: While the role of the complainant in discipline proceedings at the investigative stage is limited, the statute does afford the complainant some rights. The College and the investigated psychologist may be the only full parties at that stage, but the claimant is clearly a participant in the appeal of the decision not to proceed to hearing.

The Act specifically gives that right of appeal to the complainant. What the obiter comments in Friends of the Old Man River signify is that the complainant cannot turn the appeal of the decision not to proceed to a hearing into a surrogate hearing on the merits.

Friends of the Old Man River should not be read as suggesting that a complainant who launches an appeal under the statute has no remedies if the appeal process is conducted in a fundamentally unfair manner. [ 78 ] In Warman , the Court of Appeal affirmed Mitten , and held that this limited form of standing to seek judicial review, i.e. on the issue of whether the appeal process was conducted in a fundamentally unfair manner, was arguably available in the case before it. [ 79 ] In Tran , upheld by 2018 ABCA 95 , Ross J. concluded the Applicant’s standing was limited to issues of procedural unfairness before the Complaint Review Committee.

Ross J. held the Applicant was not entitled to seek review of the reasonableness of the Committee’s decision on the merits. [ 80 ] In the course of her decision on the standing issue, Ross J. pointed out that a person who complains to a professional regulatory body is not seeking a personal remedy. Rather, “the person has the same interest as any member of the public: an interest in ensuring that members of the profession meet the standards set by the governing body” (paras 22-23).

The Alberta Court of Appeal agreed with the decision and reasons ( 2018 ABCA 95 ). [ 81 ] In Makis , Sulyma J. similarly held that Dr. Makis did not have the standing to challenge the merits of the decision of the Complaints Director or that of the Complaint Review Committee (see paras 19, 29 and 30). In that case, the College conceded Mr. Makis had standing to challenge the fairness of the process. [ 82 ] The same conclusion was reached by Germain J. in the context of a complaint made under the Police Act in Campeau . At para 22 of his oral judgment, Germain J. held: I conclude that Mr.

Campeau is similarly situated and without the ability to judicially review the decision of the Police Chief… His standing to bring a judicial review in this case it is limited to the issue of the fairness of the police procedure which is statutorily described in the legislation and which was followed without deviation in this case. Here, the Applicant raises no issue of procedural

unfairness or process but raises the issue that the Chief’s decision is unreasonable. [ 83 ] In the case at bar, the Applicant has contended that the LERB did not consider all of the arguments made in the appeal, and further did not provide cogent reasons for why the evidence of the officers was preferred to that of the Applicant. They do not specifically articulate either of these as issues of procedural fairness. [ 84 ] In regard to the first argument, a failure to consider arguments, submissions or evidence raised can be considered a breach of procedural fairness.

See Baker v Canada (Minister of Citizenship & Immigration ) , 1999 SCC 699 at para 22; Igbinoba v Canada (Minister of Citizenship & Immigration), 2010 FC 446 at para 42 ; Haile v. Canada (Citizenship and Immigration) , 2019 FC 538 at para 63 . [ 85 ] In regard to the latter argument, the lack of cogent reasons, the Supreme Court of Canada considered in the case Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury) , 2011 SCC 62 , the argument was that a failure to provide sufficient reasons amounted to a breach of procedural fairness.

At paras 21-22, Abella J. said the following (emphasis added): 21 It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review.

As Professor Philip Bryden has warned, “ courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it ” (“ Standards of Review and Sufficiency of Reasons: Some Practical Considerations” (2006), 19 C.J.A.L.P. 191, at p. 217 ; see also Grant Huscroft, “The Duty of Fairness: From Nicholson to Baker and Beyond”, in Colleen M.

Flood and Lorne Sossin, eds., Administrative Law in Context (2008), 115, at p. 136). 22 It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach.

Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. [ 86 ] Recently, in the case Jean Philippe v Canada (Citizenship and Immigration) , 2021 FC 48 , the Federal Court confirmed: It has long been held that the adequacy of a decision-maker’s reasons is not a stand-alone basis for quashing a decision or a matter of procedural fairness, but rather an issue to be considered in assessing the reasonableness of the decision ( N.L.N.U. v. Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 (S.C.C.) at paras 15 , 20-22).

That approach is confirmed in Vavilov , and I will therefore apply the reasonableness standard to the review of the RAD’s decision on both issues. [ 87 ] A failure to provide sufficient or adequate reasons, therefore, does not amount to a breach of procedural fairness. An inquiry into the quality of the reasons should be done by assessing the reasonableness of the decision.

For example, in the case Rault v Law Society (Saskatchewan) , 2009 SCKA 81, the Saskatchewan Court of Appeal held the Discipline Committee’s decision was unreasonable because the Committee had failed to provide good or cogent reasons as to why the joint submission penalty was not an appropriate disposition in the case before them. [ 88 ] Ultimately, this judicial review can proceed only if the LERB’s alleged failure to consider all of the arguments made in the appeal amounts to a breach of procedural fairness.

Issue 3: Alleged breach of procedural fairness for failing to consider the applicant’s arguments [ 89 ] While the applicant did not frame their application in this way, the key question at this stage is: did the LERB fail in their duty of procedural fairness by failing to consider all of the arguments made in the appeal before it?

If so, the application for judicial review may be considered. [ 90 ] The applicant argues that the LERB failed to consider the allegation that use of handcuffs on the applicant was unlawful; he argues that in dismissing this complaint the LERB simply adopted the Chief’s argument and did not consider the applicant’s argument that he did not pose a threat. However, given that the proceeding proceeded in writing only, the decision is the only record of the LERB’s consideration of arguments. [ 91 ] The issue of the handcuffs is reported in paras 27-31 of the decision.

The Chief’s argument and the applicant’s argument are summarized. In particular the LERB distinguishes the factual circumstances of the applicant from the individual in the caselaw cited; they consider the police relied on by the Chief and make the following conclusion: Although the appellant has referred to case law, we do not find it to be persuasive, given the disparity of circumstances between the appellant’s situation and the cited case.

A review of policy supports that handcuffing is the default practice unless otherwise appropriate. [ 92 ] While brief, the reasons belie a direct consideration of the arguments made (in particular by factually differentiating the case relied on by Mr.

Korniyenko and his own allegations) and thus cannot support an argument of procedural unfairness. [ 93 ] The applicant further argued that the decision to seize his dogs was unreasonable; that the issue of charging threshold had been before the Court of Appeal and that the Chief should not have made his decision until after that decision was released (the decision in question is now released as: Conlin v Edmonton (City) Police Service , 2021 ABCA 287 ).

Further they argue that the decision did not include reference to differences in evidence between the applicant and the Constable Huffman: Specifically, the applicant said his parents could take the dogs, and the officer said the applicant said there was nobody he knew that could take care of the dogs. [ 94 ] The applicant argues that these arguments were “acknowledged” but that the LERB did not restate the law nor make any consideration of the charging threshold.

Instead they accepted the police evidence that the expected length of the applicant’s detention was unknown and the conditions for the dogs was poor, which supported the officer’s decision to call animal services.

[ 95 ] Paras 32-34 of the decision outline these arguments, and paras 35 and 36 address them. The LERB held that the Chief’s decisions does not address differences in the evidence but it is clear he was aware of them; further that given the uncontested evidence (the uncertain length of the accused’s detention and the derelict living conditions for the dogs) that his decision (regardless, apparently, of the differences in the applicant’s and officer’s evidence) was reasonable.

Again, while these reasons are brief, they show that the LERB considered the applicant’s argument. [ 96 ] The Applicant further argues that the LERB did not consider his argument that his cell conditions were unreasonable, but rather simply “summarized Korniyenko’s and the Respondent’s submissions before it concluded that” the issue was outside of the LERB’s jurisdiction. [ 97 ] At para 39, the LERB simply stated that “ We do not have authority to hear appeals regarding complaints of service, and this allegation is therefore outside of the Board’s jurisdiction.” Inherent in that conclusion is their acceptance of the Chief’s argument that the complaint was a complaint of service.

Again, while brief, this shows consideration of the complaint and the related arguments. [ 98 ] Ultimately, while the LERB’s decision is brief in its reasons, it did consider each argument and any argument of procedural unfairness fails. Conclusion [ 99 ] The applicant does not have personal standing to seek judicial review of the LERB decision. To establish public interest standing in order to pursue judicial review, of the arguments made by the applicant only the argument alleging failure by the LERB to consider all arguments made by the applicant.

The LERB’s decision does, in fact, convey consideration of the arguments noted in the applicant’s brief. As such, the applicant has no public interest standing. [ 100 ] The application for Judicial Review is dismissed. Costs [ 101 ] If costs cannot be agreed, parties may provide written briefs, a maximum of 5 pages each, within 30 days. Heard on the 20 th day of May, 2021. Dated at the City of Edmonton, Alberta this 23 rd day of December, 2021. Avril B. Inglis J.C.Q.B.A.

Appearances: Thomas Engel Engel Law Office for the Applicant Pavlo Korniyenko Katrina Haymond Field Law LLP for the Respondent Rod Knecht, Chief of Edmonton Police Services Lorena Harris Dentons Canada LLP for the Respondent Officers of Edmonton Police Services

Frances Chiu Alberta Justice For the Law Enforcement Review Board