Stellarton (Town) v. Nova Scotia (Police Board), 2013 NSSC 26

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Stellarton (Town) v. Nova Scotia (Police Board), 2013 NSSC 26 Date: 20121211 Docket: Pic No. 398192 Registry: Pictou Between: Town of Stellarton Plaintiff v. Nova Scotia Police Board and Ambrose Heighton Defendant Judge: The Honourable Justice N. M. Scaravelli. Heard: December 11, 2012, in Pictou, Nova Scotia Written Decision: January 17, 2013 Counsel: Hector MacIsaac, for the Town of Stellarton Jean A. McKenna, for the Nova Scotia Police Board David J.

Bright, for Ambrose Heighton By the Court : [ 1 ] The Applicant requests a judicial review of the decision of the Police Review Board (Review Board). The Applicant requests an “Order in the form of a Declaration that the Respondent, Nova Scotia Review Board, did not have the authority or jurisdiction to demote the Chief of Police”. BACKGROUND

[2] Ambrose Heighton, one of the Respondents in this Application, was the Police Chief of Stellarton. In 2008, he was accused ofdiscreditable conduct in authoring and distributing an anonymous letter implicating several RCMP officers in sex parties, drug use, andother embarrassing or unprofessional conduct. Pursuant to Section 73 (1) of the Police Act, complaints about a Chief Officer go to theMunicipal Board of Police Commissioners (Board) who, on October 8, 2008, found the complaint credible. They recommended to thetown counsel that Mr. Heighton be dismissed and counsel agreed. Thus ending Mr.

Heighton’s career as Police Chief. Mr. Heightonthen requested a review of that decision, as he was entitled to do under Section 73 (5) of the Police Act. [3] The Review Board held a hearing on the merits of the complaint in October, 2010 and on January 12, 2011, released a preliminarydecision finding that Mr. Heighton had indeed engaged in discreditable conduct. Their full decision on the merits was released on May26, 2011. They then held a disposition hearing on October 18 - 20, 2011 and on April 13, 2012 they found that dismissal wasunnecessary and chose instead to demote Mr. Heighton one position in rank.

STANDARD OF REVIEW [4] In their briefs, the Respondents submit the standard of review is reasonableness. The Applicant did not address the standard ofreview in its brief. Regardless, it is the function of the court to determine the appropriate standard of review. [5] There are only two standards of review .. reasonableness and correctness. In New Brunswick (Board of Management) vs.Dunsmuir 2008 SCC 9 the court summarized the approach for determining which standard should be applied. 62.

First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to beaccorded with regard to a particular category in question. Second, where the first inquiry proves unfruitful, courts must proceed to ananalysis of the factors making it possible to identify the proper standard of review. [6] Those factors were listed by the court and include “(1) the presence or absence of a privative clause; (2) the purpose of the tribunalas determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal” PRIOR JURISPRUDENCE [7] Counsel have not provided nor have I found jurisprudence which has satisfactorily determined the degree of deference for thiscategory of question. Historically, the standard applied to decisions of the Police Review Board has been patented unreasonableness orreasonableness. See White vs. Dartmouth (City) [1991] NSJ 337, Ranni vs. Halifax (Regional Municipality) 2011 NSSC 83.

However, those cases did not typically deal with issues related to jurisdiction and there appear to be no cases that consider whether thepenalties available to the Police Review Board are limited in anyway. STANDARD OF REVIEW ANALYSIS THE PRESENCE OR ABSENCE OF PRIVATIVE CLAUSE [8] Section 79 (3) of the Police Act provides that the decision of the Review Board is final. This points to reasonableness. Pushpanathan v. Canada (Minister of Citizenship and Immigration) (SCC), 1998 1 SCR 982. THE PURPOSE OF THE TRIBUNAL [9]

Section 18 of the Police Act reads: 18. The Review Board shall perform the functions and duties assigned to it by this Act, the regulations, the Minister or the Governor and

counsel and, without limiting the generality of the foregoing, the Review Board shall (

a) conduct investigations and inquiries in accordance with this Act; and (

b) conduct hearings into complainants referred to it by the complaints commissioner in accordance with this Act or the regulations. [ 10 ]

Section 77-79 of the Police Act set out the procedure of the Police Review Board as well as dispositions available to it. In White Justice Saunders (as he then was) considered substantially similar predecessors to the sections and concluded: 28. The Review Board exists as a final, specialized form in which a matter of complaint against a police officer or internal discipline is fully heard de-novo before an independent decision making body. THE EXPERTISE OF THE TRIBUNAL [ 11 ] The Police Act and regulations do not set out qualifications for membership on the Police Review Board.

THE NATURE OF THE QUESTION [ 12 ] The Supreme Court in Dunsmuir provided significant guidance on which types of question attract which standard, and those passages are summarized well by Justice Fish in Smith v Alliance Pipeline Ltd 2011 SCC 7 : [26] The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘ that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’ “ (Dunsmuir, at para. 60 citing Toronoto (City) v.

C.U.P.E., Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77 , at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). One the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54).” [ 13 ] Important is this application is the “true question of jurisdiction” category. The majority in Dunsmuir (supra) caution this category of question is very narrow. That narrowness was elaborated upon by the Supreme Court in Alberta Teacher’s Association vs.

Alberta Information and Privacy Commissioner 2011 SCC 61 as reviewed by the Nova Scotia Court of Appeal in Boddy vs. Nova Scotia Workers’ Compensation Appeals Tribunal 2012 NSCA 73 : [12] In this case, Ms. Boddy argues that the

interpretation of s. 256 is a true question of jurisdiction or vires attracting a correctness standard of review. Ms. Boddy concedes that in Alberta (Information and Privacy Commission) v. Alberta Teachers’ Association, 2011 SCC 61 , Justice Rothstein (writing for the majority) doubted whether true questions of jurisdiction exist.

Concluding on this point, he said: [42] ...The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such a category is indeed helpful or necessary. [13] When considering the application of a correctness standard to a question of law, Justice Rothstein emphasized: [46] ...In other words, since Dunsmuir, for the correctness standard to apply, the question has to not only be one of central

importance to the legal system but also outside the adjudicator’s specialized area of expertise. [Emphasis in original] [ 14 ] Justice Rothstein proposed that reasonableness should be the presumed standard in such circumstances as obtained here: [39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional.

When considering a decision of an administrative tribunal interpreting or applying its home statue, it should be presumed that the appropriate standard of review is reasonalbleness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness. [Emphasis added] [ 15 ] In Alberta Teachers’ Association, Justice Binnie writing for himself and Justice Deschamps concurred in the result, as did Justice Cromwell speaking for himself. But they did not agree with the presumption described by Justice Rothstein.

Without entering into the debate between the justices in Alberta Teachers’ Association , it suffices to point out that Justice Cromwell, who most strongly argued for preservation of a correctness standard of review for certain questions of jurisdiction or vires, nevertheless agreed that reasonableness applied in that case where the tribunal was interpreting its home statute. [14] In setting the penalty, the Review Board construed and applied it’s own statute. There is no constitutional question nor is the question of central importance to the legal system.

I find the issue is not one of “true jurisdiction” and should be reviewed on a reasonable basis. AUTHORITY TO DEMOTE THE CHIEF OFFICER [15] Sections 78 and 79 of the Act describes the functions and power of the Review Board. Hearing de novo 78 A hearing by the Review Board shall be a hearing de novo and the parties to the proceeding may (

a) appear and be heard and be represented by counsel; and (

b) call witnesses and examine or cross-examine all witnesses. 2004, c. 31 , 2. 78. Powers of Review Board at hearing and decision 79

(1) At a hearing under this Act, the Review Board may (

a) make findings of fact; (

b) dismiss the matter; (

c) find that the matter under review has validity and recommend to the body responsible for the member of the municipal police department what should be done in the circumstances; (

d) vary any penalty imposed including, notwithstanding any contract or collective agreement to the contrary, the dismissal

of the member of the municipal police department or the suspension of the member with or without pay; (

e) affirm the penalty imposed; (

f) substitute a finding that in its opinion should have been reached ; (

g) award or fix costs where appropriate, including ordering costs against the person making the complaint, where the complaint is without merit; (

h) supersede a disciplinary procedure or provision in a contract or collective agreement;

(2) The decision of the Review Board must be in writing and provide reasons and shall be forwarded to the parties.

(3) The decision of the Review Board is final… [Emphasis added] [ 16 ] The Town submits

Section 26 of the Regulations expressly authorizes the Board to dismiss the Chief Officer but does not authorize the Board and, consequently, the Review Board, to impose a penalty of demotion. The town submits the powers conveyed upon the Review Board pursuant to

Section 79 of the Act are prescribed by

Section 26 of the Regulations. [ 17 ] In reaching their decision the Review Board cited

Section 79 of the Act and

Section 26 of the Regulations.

Section 26 deals with the powers of the Board of Commissioners to discipline a Chief Officer. Although the parties and the Board of Review, in its decision, focused in part on the disciplinary powers available pursuant to

Section 26 of the Regulations, this

section has no bearing on the disciplinary powers of the Review Board. Sections 25 and 26 of the Regulations deal with the extent of disciplinary powers available to the Board of Commissioners. Powers of the Review Board are nowhere expressly or implicitly referenced or restricted in the regulations. The penalty powers of the Review Board are expressly dealt with in Section 79 (1) of the Act. In any event regulations would be inoperative where they are inconsistent with or in conflict with clear provisions of the Statute. Friends of Old Man River Society vs. Canada (Minister of Transport) 1992 SCR 3. [19] Although the Board of Review incorrectly referenced

Section 26 of the Regulations when considering the extent of its disciplinary powers, it cited

Section 79 of the Act immediately before

Section 26 as a key

section on disposition. That

Section 79 of the Act also informed their decision. [20] The Town submits that, although

Section 79 of the Act authorizes the Review Board to vary any penalty imposed on a member of the police department including dismissal, it does not expressly authorize the demotion in rank of the Chief Officer. Demotion of the Chief Officer is dealt with in

Section 7 of the Act and corresponding regulations.

Section 7 enables the Minister to order an investigation relating to policing and law enforcement. Section 62 (1) of the Regulations provides that the Board of Commissioners may recommend the reduction in the rank of Chief Officer as a result of a ministerial inquiry under

Section 7. [21]

Section 7 of the Act deals with ministerial inquires. This provision and associated regulations are apart from other disciplinary proceedings set out in the Act and do not supersede the powers conferred upon the Review Board flowing from a complaint against a Chief Officer.

Section 73 deals with complaints against a Chief Officer. They are referred to the Board of Commissioners. If not resolved satisfactorily, the complaint may be referred to the Review Board, as in the present case. [22] The Review Board is a forum of last resort.

Section 78 provides for a de novo hearing on matters of discipline. De novo hearings are conducted afresh, as if any original proceeding had not taken place. By virtue of Sections 78 and 79 of the Act the Review Board has an unfettered discretion to impose any penalty it deems fit including variation of the dismissal of a member of the police force. The Chief Officer is a member of the police force. A member of the municipal police department is defined in

Section 70 of the Act as “a member appointed pursuant to subsection 37 (4) or 38 (1) . . . by whatever rank or title the person maybe designated”. Section 38 (1) is the

section under with Chief Officers are appointed.

[23] Accordingly the Review Board’s conclusion that it had the discretionary authority to vary the penalty of dismissal of the Chief Officer to a penalty of reduction in rank was a reasonable conclusion. [24] The application is dismissed with costs to the respondents in the amount of $1,500.00 each.