Determination of internal standard of review of an administrative tribunal following Vavilov

Administrative law – Decisions reviewed – Law Enforcement Review Board – Judicial review – Appeals – Standard of review – Reasonableness – Police – Penalties and suspensions – Professional misconduct or conduct unbecoming

Moffat v. Edmonton (City) Police Service, [2021] A.J. No. 678, 2021 ABCA 183, Alberta Court of Appeal, May 17, 2021, T.W. Wakeling, S.J. Greckol and E.A. Hughes JJ.A.

The appellant was a constable with the Edmonton Police Service. A civilian member made a harassment complaint, which led to charges of insubordination, discreditable conduct, and deceit, relating to answers given during the investigation. Following a hearing, the appellant was dismissed.

At the first stage of the hearing process, the Presiding Officer found the appellant engaged in a prolonged pattern of willful harassment followed by intentional deceit. The Presiding Officer found the conduct warranted dismissal.

The appellant appealed the Presiding Officer’s decision to the Law Enforcement Review Board (“LERB”) pursuant to the Police Act, R.S.A. 2000, c. P-17. The LERB reviewed the Presiding Officer’s decision on a reasonableness standard in respect of the merits and penalty. It dismissed the appeal.

The appellant obtained leave to appeal the LERB’s decision to the Court of Appeal on several issues. Of significance, the Court of Appeal considered the applicable internal standard of review for the LERB’s review of the Presiding Officer’s decision.

The Court of Appeal found the determination of the applicable internal standard of review to be applied by the LERB was a question of law. The Court noted that it is not necessary for separate appellate tribunals operating under different legislation to adopt the same internal standard of review; the applicable internal standard of review is always dependent on the governing legislation. The Court concluded, based on the applicable legislation, and following Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, that the LERB committed no error in selecting and applying a reasonableness standard or review to its review of the Presiding Officer’s decision. The Court of Appeal also found the LERB committed no error in finding the Presiding Officer’s decision was reasonable.

The appeal was dismissed.

This case was digested by Joel A. Morris, 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 Joel A. Morris at jmorris@harpergrey.com.

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