Application to appeal granted after an applicant raises significant questions of law potentially engaging Vavilov

16. June 2020 0

Administrative law – Decisions reviewed – Police Review Board – Judicial review – Appeals – Standard of review – Reasonableness – Police – Professional misconduct or conduct unbecoming

Moffat v. Edmonton (City) Police Service, [2020] A.J. No. 271, 2020 ABCA 80, Alberta Court of Appeal, February 27, 2020, M.G. Crighton J.A.

The applicant was a 21-year member of the Edmonton Police Service. Following an investigation into concerns of harassment, the applicant was charged with 13 counts of misconduct, one count of insubordination, one count of discreditable conduct and 11 counts of deceit. The applicant pled guilty to discreditable conduct and one count of deceit. The Presiding Officer rendered reasons convicting the applicant of one count of insubordination and three counts of deceit. All other charges were dismissed. The Presiding Officer issued further reasons supporting dismissal of the applicant. The applicant appealed both the merits and penalty decisions to the Alberta Law Enforcement Review Board (“LERB”). The LERB dismissed the applicant’s appeal, upholding both the decision to convict and the penalty of dismissal.

Pursuant to section 18 of the Police Act, a single judge of the Court of Appeal may grant permission to appeal on a question of law. To be successful on an application for permission to appeal, the applicant must show (1) the question to be assessed is a question of law, (2) the question is significant and (3) there is a reasonable prospect of success.

The applicant argued that the LERB applied a standard of reasonableness when, in light of Vavilov, it ought to have applied a standard of correctness. The applicant also argued that the Presiding Officer committed a legal error and should not have convicted her of willful deceit and then concluded she was guilty of negligent deceit, without complete analysis into those charges.

The single judge found that the applicant met the test for permission to appeal and defined the questions the Court of Appeal could consider. The judge found that the selection of the standard of review is a question of law and that they were significant to the applicant and the broader context. The threshold for a reasonable prospect of success was low and established on the evidentiary record before the Court. The Court granted permission to appeal to a panel of the Court of Appeal with specific questions.

This case was digested by Jackson C. Doyle, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Jackson C. Doyle at [email protected].

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