ABCA concludes Arbitrator’s decision that ongoing placement restrictions were justified by testamentary risk unreasonable

Appeal from judicial review of decision under Alberta Police Act and Police Service Regulation restricting employment because of “testamentary risk”.

Administrative law – Decisions reviewed – Police Services Board – Appeals – O’Connor test – Judicial review – Standard of review – Reasonableness – Police – Professional misconduct or conduct unbecoming

Edmonton Police Assn. v. Edmonton (City) Police Service, [2017] A.J. No. 1129, 2017 ABCA 355, Alberta Court of Appeal, October 30, 2017, R.L. Berger, B.K. O’Ferrall and S.J. Greckol JJ.A.

Between 2004 and 2008, the Edmonton Police Service (the “EPS”) investigated complaints made by several sex workers alleging misconduct against an unnamed EPS officer (the “Officer”).

In 2009, the EPS proceeded with charges against the Officer for misconduct under the Police Act, R.S.A. 2000, c. P-17, and Police Service Regulation, Alta. Reg. 356/1990.

In 2010, the charges proceeded to hearing, but the key witnesses, the sex workers, did not cooperate, no evidence was called, and the EPS withdrew the charges without any finding of guilt. The Officer maintained his innocence throughout.

In the course of investigating the complaints against the Officer, the EPS imposed restrictions on the Officer’s rights to promotion, and transferred him to a specific section within the police department. After the charges were withdrawn, the EPS maintained restrictions on the Officer’s employment, claiming it was reasonable to do so because if the Officer was required to testify at trial, his testimony would be at risk of challenge by defence counsel seeking disclosure of the unproven allegations, and his evidence could be compromised.

The Officer commenced civil proceedings against the EPS in relation to the disciplinary investigation.

The Officer and the Edmonton Police Association (the “EPA”) also pursued a grievance under the collective agreement between the EPA and the EPS.  With respect to restrictions related to “testamentary risk”, the Arbitrator held the EPS reasonably imposed restrictions on the Officer’s employment and continued restrictions were reasonable, as the Officer continued to pose a “testamentary risk” due to his extant litigation against the EPS.

On judicial review, the chambers judge upheld the Arbitrator’s decision the employment restrictions based on “testamentary risk” were reasonable, but concluded the decision the restrictions could continue indefinitely was unreasonable.

The EPS appealed the chambers judge’s decision regarding the duration of employment restrictions and the EPA cross-appealed the chambers judge’s decision regarding reasonableness of employment restrictions based on “testamentary risk”.

On appeal, the majority allowed the EPA’s cross-appeal, concluding the chambers judge’s decision that the EPS could place ongoing restrictions on the Officer’s employment on the basis of “testamentary risk” was unreasonable.  The EPA argued the case law regarding O’Connor applications did not support the conclusion there was “some significant chance” of a court ordering production of the investigation records in a case where the Officer testified.  The majority held the Arbitrator’s decision “testamentary risk” was “quite low” was reasonable, given the facts regarding the allegations and charges being withdrawn, but that because in those circumstances an O’Connor application had limited prospect of success, it was unreasonable to find the Officer presented real “testamentary risk”.  It held the Officer’s employment could not be determined on the basis of whether defence counsel might bring a “long shot” O’Connor application, even where the Officer initiated a civil action to vindicate himself in relation to the allegations, as was his right. The EPS was not entitled to impose continuing and indefinite employment restrictions on the Officer.

The majority allowed the EPA’s cross-appeal and, as a result, dismissed the EPS’s appeal.

This case was digested by Joel A. Morris, and first posted on Quicklaw and published in 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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