MacNeil v. Edmonton (City) et al., 2009 ABQB 628

• Judge: Marshall, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 26, 2009
• Citations: 2009 ABQB 628;(2009), 484 A.R. 330 (QB)

MacNeil v. Edmonton (2009), 484 A.R. 330 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.027

Wallace James MacNeil (applicant) v. The City of Edmonton, City of Edmonton Police Service, Chief of Police, Michael Boyd, City of Edmonton Police Commission (respondents)

(0803 00540; 0903 12718; 2009 ABQB 628)

Indexed As: MacNeil v. Edmonton (City) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Marshall, J.

November 26, 2009.

Summary:

MacNeil was a detective with the Edmonton Police Service. He applied for judicial review with respect to his suspension without pay by the Chief of Police in a disciplinary process carried out under the Police Service Regulation and two confirmations of that suspension by the Edmonton Police Commission.

The Alberta Court of Queen's Bench dismissed the applications.

Administrative Law - Topic 548

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When not required - MacNeil was a detective with the Edmonton Police Service - He applied for judicial review with respect to his suspension without pay by the Chief of Police in a disciplinary process carried out under the Police Service Regulation and two confirmations of that suspension by the Edmonton Police Commission - MacNeil argued that the Commission's decisions to confirm the suspension without pay did not provide adequate reasons - The Alberta Court of Queen's Bench stated that "The Commission is not required to give reasons at an interim stage of such proceedings ... There is also authority that an aggrieved party to such a proceeding should request reasons, where none are provided, before resorting to judicial review ... No request for reasons was made in this case. A failure to provide reasons does not result in unfairness in such interim proceedings because the only question before the Commission in the Confirmation Hearings is whether the information provided by the Chief and resulting grounds relied on are reasonable. The Commission was satisfied that the Chief's opinion of the existence of extraordinary circumstances was valid" - See paragraph 61.

Police - Topic 4170

Internal organization - Discipline - Appeals and judicial review - Grounds - Denial of natural justice - [See Police - Topic 4266 ].

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - MacNeil was a detective with the Edmonton Police Service - He applied for judicial review with respect to his suspension without pay by the Chief of Police in a disciplinary process carried out under the Police Service Regulation and two confirmations of that suspension by the Edmonton Police Commission - The Alberta Court of Queen's Bench held that a standard of reasonableness applied to the review of the Commission's decisions confirming the suspension without pay - That standard also applied to the Commission's decision to grant extensions of the time deadline under s. 7(1) of the Regulation to charge MacNeil, unless a breach of the principles of fairness and natural justice was engaged when the standard of correctness would apply - See paragraphs 28 to 32.

Police - Topic 4187

Internal organization - Discipline - Hearings - Requirements of natural justice or principles of fundamental justice - [See Police - Topic 4266 ].

Police - Topic 4246

Internal organization - Discipline - Rights of officers - Disclosure of "statements" to officer - Section 10(1) of the Police Service Regulation provided that "Where an investigation is carried out in respect of a complaint as to the actions of a police officer, the police officer shall be advised as to the details of the complaint and be provided with a copy of all statements made by the complainant" - The Alberta Court of Queen's Bench held that "the notice and disclosure required by s. 10(1) does not occur during the investigative stage of the proceedings, but sometime afterwards, after the officer is charged but prior to the Police Act, s. 47 hearing" - The court stated that "Section 10(1) refers to the existence of an investigation: 'Where an investigation is carried out' while s. 10(2) and 10(3) speak of a time: 'when an investigation is being carried out ...'. This suggests s. 10(1) refers to either the point at which an investigation is initiated, or when the investigation is complete. ... I would prefer the latter interpretation, as where an investigation is disclosed upon its being started, and that investigation [was] concerned with alleged criminal activity of a police officer, then that investigation could well be compromised if notice was required at its initiation. This interpretation of s. 10(1) is consistent with the rule that legislation should not be interpreted in such a manner that it defeats the purpose of the legislation. ... to interpret Regulation, s. 10(1) to indicate disclosure is required when an investigation is commenced is an absurd result; in certain instances that disclosure would sabotage the objective of the investigation" - See paragraphs 18 to 27.

Police - Topic 4266

Internal organization - Discipline - Procedure - Notice - MacNeil was a detective with the Edmonton Police Service - He applied for judicial review with respect to his suspension without pay by the Chief of Police in a disciplinary process carried out under the Police Service Regulation and two confirmations of that suspension by the Edmonton Police Commission - Pursuant to s. 7(4) of the Regulation, the Commission had granted extensions of the time deadline under s. 7(1) for MacNeil to be charged with a breach of the Regulation - MacNeil argued that the Commission breached its obligation to provide a fair hearing to him by not notifying him of the time extension processes and inviting submissions from him during those proceedings - The Alberta Court of Queen's Bench held that the extensions of time granted by the Commission were permitted by the Regulation and neither the lack of notice to MacNeil nor the extensions resulted in any breach of the principles of natural justice - See paragraphs 33 to 56.

Police - Topic 6662.1

Police commission and R.C.M.P. Commissioner - Inquiry - Notice (incl. statements of alleged misconduct) - [See Police - Topic 4246 and Police - Topic 4266 ].

Police - Topic 6741

Police commission and R.C.M.P. Commissioner - Judicial review - General - MacNeil was a detective with the Edmonton Police Service - He applied for judicial review with respect to his suspension without pay by the Chief of Police in a disciplinary process carried out under the Police Service Regulation and two confirmations of that suspension by the Edmonton Police Commission - MacNeil alleged that the Commission incorrectly confirmed the Chief's suspension of MacNeil without pay - The Alberta Court of Queen's Bench stated that "While I was invited to scrutinize the allegations and attempt to weigh the evidence before the Commission at the Confirmation Hearings, that is not my role in a judicial review. Based upon a reviewing standard of reasonableness I conclude there was material before the Commission at the hearings which showed sufficient reasons existed to uphold the Chief's decision" - The court also observed that the Confirmation Hearings were not final decisions but interlocutory, interim decisions, and "it is likely this Court should not review the decisions of the Commission at this time" - See paragraphs 57 to 60.

Police - Topic 6742

Police Commission and R.C.M.P. Commissioner - Judicial review - Scope or standard of review - [See Police - Topic 4173 and Police - Topic 6741 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Police - Topic 4246 ].

Statutes - Topic 1408

Interpretation - Construction where meaning is not plain - Avoidance of absurdity - [See Police - Topic 4246 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 22].

R. v. Middleton (T.) (2009), 388 N.R. 89; 251 O.A.C. 349; 2009 SCC 21, refd to. [para. 22].

R. v. Chief Constable of the Merseyside Police; Ex parte Calveley, [1986] 1 All E.R. 257 (C.A.), dist. [para. 26].

R. v. Chief Constable of the Merseyside Police; Ex parte Merrill, [1989] 1 W.L.R. 1077 (C.A.), dist. [para. 26].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 2004 ABCA 175, refd to. [para. 31].

Forestall et al. v. Toronto Police Services Board et al. (2007), 228 O.A.C. 202; 72 Admin. L.R.(4th) 299 (Div. Ct.), refd to. [para. 35].

Coombs v. Toronto (Metropolitan) Police Services Board, [1997] O.J. No. 5260 (Div. Ct.), refd to. [para. 35].

Sommers v. Ontario Civilian Commission on Police Services et al. (2005), 197 O.A.C. 203; 139 A.C.W.S.(3d) 2 (Div. Ct.), refd to. [para. 35].

Calgary (City) Police Service v. Edmonton (City) Police Service, 2008 ABQB 52, refd to. [para. 35].

Vanovermeire v. Edmonton (City) Police Commission (1993), 139 A.R. 207; 9 Alta. L.R.(3d) 396 (Q.B.), consd. [para. 37].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 38].

Manyfingers v. Calgary Chief of Police et al. (2006), 384 A.R. 181; 367 W.A.C. 181; 2006 ABCA 162, refd to. [para. 42].

Saskatoon City Police Association et al. v. Saskatchewan Police Commission et al. (2001), 212 Sask.R. 70; 2001 SKQB 477, refd to. [para. 48].

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 ABCA 279, refd to. [para. 55].

Bear Hills Charitable Foundation et al. v. Gaming and Liquor Commission (Alta.) (2008), 463 A.R. 276; 100 Alta. L.R.(4th) 340; 2008 ABQB 766, refd to. [para. 55].

Chen v. Law Society of Manitoba (2000), 145 Man.R.(2d) 281; 218 W.A.C. 281; 2000 MBCA 26, refd to. [para. 61].

Marine Atlantic Inc. v. Canadian Merchant Service Guild et al. (2000), 258 N.R. 112; 2000 CanLII 15517 (F.C.A.), refd to. [para. 61].

Statutes Noticed:

Police Act Regulations (Alta.), Police Service Regulation, Reg. 356/90, sect. 5, sect. 7, sect. 8, sect. 9, sect. 10 [para. 11].

Police Service Regulation - see Police Act Regulations (Alta.).

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 22].

Counsel:

Michele J. Reeves, for the applicant;

Simon Johnson (Bennett Jones LLP), for the respondent, Chief of Police, Michael Boyd;

Bryan Sarabin, for the respondent, Edmonton Police Commission;

Nathan J. Whitling (Parlee McLaws LLP), for the intervenor, Edmonton Police Association.

These applications were heard on October 26, 2009, before Marshall, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on November 26, 2009.