The Applicant police constable successfully sought leave to appeal to the Court of Appeal in respect of a fresh hearing that was conducted by the Respondent, Law Enforcement Review Board, relating to a penalty that was imposed on him by the other Respondent, the Edmonton Police Service

Administrative law – Decisions of administrative tribunals – Police Review Board – Police – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties and suspensions – Hearings  – Hearing de novo – Judicial review – Appeals – Standard of review – Reasonableness simpliciter

Furlong v. Edmonton Police Service, [2013] A.J. No. 1119, 2013 ABCA 359, Alberta Court of Appeal, October 23, 2013, R.L. Berger J.A.

The Applicant police constable (the “Applicant”) faced four counts of misconduct under the Police Act. The misconduct related to events that happened when he was attending a training exercise when he and the other attendees were drinking heavily. The Applicant urinated on a colleague’s sleeping bag, used profane language about the complainant and physically pushed and confined the complainant.

After considering the allegations, the Presiding Officer of one of the Respondents (the Edmonton Police Service) imposed a penalty of dismissal on the Applicant. The Applicant then appealed to the other Respondent, the Law Enforcement Review Board (the “Review Board”). The Review Board allowed the appeal, held the Presiding Officer’s decision was unreasonable, and imposed a penalty of a 2-year reduction of seniority within rank. In explaining its decision, the Review Board endorsed several findings of fact from the Presiding Officer’s decision.

The Chief of Police of the Edmonton Police Service sought and obtained leave to appeal to the Alberta Court of Appeal. The Court of Appeal set aside the Review Board’s decision. The Court of Appeal held that the Review Board erred when it decided to use a more robust standard of review than reasonableness. The Court of Appeal directed the Review Board to constitute a new panel to reconsider the matter. The Court of Appeal indicated that the new panel “could likely” consider the matter without holding a new hearing.

In the Reconsideration Decision, the second Review Board panel decided to conduct a fresh appeal. It then decided to uphold the decision of the Presiding Officer. The Applicant then sought leave to appeal the Reconsideration decision. The Applicant argued that the Court of Appeal did not direct that a fresh hearing be conducted. The Applicant also argued that the Reconsideration Decision was based on an incorrect standard of review.

The Court of Appeal first held that the second Review Board panel was entitled to conduct a fresh appeal.

The Court of Appeal next held that the Reconsideration Decision was arguably deficient in explaining the application of the reasonableness standard. The Court of Appeal therefore accepted the Applicant’s arguments about certain aspects of the evidence that were not addressed in the Reconsideration Decision. The Court of Appeal further indicated that more explanation was arguably required because the Reconsideration Decision involved similar findings of fact but a completely different decision.

The Court of Appeal granted leave to appeal on the basis that the Reconsideration Decision involved an error in selecting and applying the standard of review for the penalty decision of the Presiding Officer. The Court of Appeal did not decide on the issue of Costs.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at smarcinkow@harpergrey.com or review her biography at http://www.harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.