A police officer on probation was not properly appointed under the governing legislation and therefore not protected when terminated during probation

Administrative law – Legislation – Legislative intent – Statutory interpretation – Judicial review – Appeals – Standard of review – Professions – Police officers

Caron v. Grand Falls (Town), [2020] N.B.J. No. 212, 2020 NBCA 60, New Brunswick Court of Appeal, September 17, 2020, J.C.M. Richard C.J.N.B. and K.A. Quigg and B.L. Baird JJ.A.

The respondent was hired as a part-time probationary officer on September 25, 2018, commencing her employment on October 1, 2018.  The respondent’s employment was terminated after eight months after the Chief of Police determined that she did not possess the qualities required to continue in her role. During her employment, the respondent was performing the duties of a police officer but was not appointed pursuant to section 11 of the Police Act [S.N.B. 1977 c. P-9.2]. Under the Police Act, a “police officer” shall not be dismissed or demoted for unsatisfactory work performance. A “police officer” was defined by the Police Act as “a police officer appointed pursuant to section 10, 11 or 17.3 and an auxiliary police office, but does not include a member of the Royal Canadian Mounted Police or an auxiliary police constable.”

The issue in the case was whether the respondent was a police officer under the Police Act considering she was hired on probationary period and not appointed under the Police Act.

On appeal, the Court concluded that the standard of review was reasonableness. None of the factors in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.J. No. 65 (QL) were applicable. The chambers judge erred in applying the standard of correctness.

Applying the principles of statutory interpretation, the Court of Appeal concluded that the Police Act only protected “police officers” and not those on probation. The Court stated that in light of the powers given to police officers, it was not surprising to understand why the Legislature would allow a period of probation to determine whether a candidate is suitable for appointment.

The Court of Appeal allowed the appeal, set aside the decision of the chambers judge and dismissed the application for judicial review. The Court of Appeal held that whether the chambers judge applied the standard of reasonableness or correctness would have resulted in an error because the conclusion is that the protection offered by the Police Act does not apply to those who do not fall under the definition of a “police officer”.

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 jdoyle@harpergrey.com.

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