Plimmer v. Chief of Police et al.,

• Judge: Côté, Conrad and Costigan, JJ.A.
• Neutral Citation: 2004 ABCA 175
• Citation: (2004), 354 A.R. 62 (CA),2004 ABCA 175,[2005] 1 WWR 26,29 Alta LR (4th) 243,354 AR 62,16 Admin LR (4th) 137,[2004] AJ No 616 (QL),33 CCEL (3d) 21,354 A.R. 62,(2004), 354 AR 62 (CA),[2004] A.J. No 616 (QL)
• Date: 02 December 2003
• Court: Court of Appeal (Alberta)

Plimmer v. Police Chief (2004), 354 A.R. 62 (CA);

    329 W.A.C. 62

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. JN.054

In The Matter Of the Police Act being Chapter P-12.01 of the Statutes of Alberta, 1988, and the Alberta Police Service Regulation being Alberta Regulation 356/90, as amended;

And In The Matter Of the appeal of Constable David Plimmer, a member of the Calgary Police Service against the punishment of dismissal from the said Service imposed upon him pursuant to the Police Service Regulation;

And In The Matter Of the decision of the Law Enforcement Review Board pronounced on the 22nd day of July, 2002 dismissing the aforesaid appeal.

David Plimmer (appellant) v. The Chief of Police and the Law Enforcement Review Board (respondents)

(0201-0256-AC; 2004 ABCA 175)

Indexed As: Plimmer v. Chief of Police et al.

Alberta Court of Appeal

Côté, Conrad and Costigan, JJ.A.

June 9, 2004.

Summary:

Plimmer admitted a charge of unlawful or unnecessary exercise of authority at a hearing conducted by a presiding officer designated by the Chief of Police. The presiding officer decided that Plimmer should be dismissed from the police service. Plimmer appealed to the Law Enforcement Review Board pursuant to s. 48(1) of the Police Act. By consent, the appeal proceeded on the basis of the record before the presiding officer. The Board dismissed the appeal. Plimmer was granted leave to appeal from the Board's decision on the following question of law: "Did the Board err in law by applying an incorrect standard of review to the decision of the presiding officer".

The Alberta Court of Appeal, Conrad, J.A., dissenting, applied the pragmatic and functional approach and concluded that the Board should apply a standard of reasonableness simpliciter on an appeal on the record from a presiding officer's decision as to punishment. The court concluded that the Board articulated a standard of review akin to reasonableness and that the appeal should accordingly be dismissed.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Alberta Court of Appeal stated that "The pragmatic and functional approach was developed by the Supreme Court of Canada to provide guidance in selecting the appropriate standard of review. The approach established a structured analytical framework for determining legislative intention. I see no reason in principle to deny the benefit of that helpful approach to an administrative appeal body faced with the difficult task of determining legislative intention in order to select the standard of review that it should apply to the decision of another administrative body" - See paragraph 20.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - [See Police - Topic 4161 ].

Police - Topic 4161

Internal organization - Discipline - Appeals - General (incl. standard of review) - Plimmer admitted a charge of unlawful or unnecessary exercise of authority at a hearing conducted by a presiding officer designated by the Chief of Police - The presiding officer decided that Plimmer should be dismissed from the police service - Plimmer appealed to the Law Enforcement Review Board pursuant to s. 48(1) of the Police Act - By consent, the appeal proceeded on the basis of the record before the presiding officer - The Board stated that "It is not open for the Board to simply impose a Board's view of what should have been the sanction unless there has been an error in law by the presiding officer. In this case the appellant must show the sentence to be demonstrably unfit (see R. v. M.(C.A.), [1996] 1 S.C.R. 500)" - The Board dismissed the appeal - Plimmer was granted leave to appeal from the Board's decision on the question of whether the Board applied the correct standard of review to the presiding officer's decision - The Alberta Court of Appeal applied the pragmatic and functional approach and held that the Board should apply a standard of reasonableness simpliciter on an appeal on the record from a presiding officer's decision as to punishment - The court concluded that the Board articulated a standard of review akin to reasonableness and that the appeal should accordingly be dismissed.

Cases Noticed:

College of Hearing Aid Practitioners of Alberta v. Zieniewicz et al., [2003] A.R. Uned. 678; 2003 ABCA 346, refd to. [para. 20].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, appld. [para. 20].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 25].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 25].

Budhai et al. v. Canada (Attorney General) (2002), 292 N.R. 379; 216 D.L.R.(4th) 594; 2002 FCA 298, refd to. [para. 49].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 50].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 53].

Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

U.E.S., Local 298 v. Bibeault - see Union des employés de service.

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, consd. [para. 57].

Dupras v. Mason et al. (1994), 52 B.C.A.C. 59; 86 W.A.C. 59; 99 B.C.L.R.(2d) 266 (C.A.), refd to. [para. 57].

McKenzie v. Mason et al. (1992), 18 B.C.A.C. 286; 31 W.A.C. 286; 72 B.C.L.R.(2d) 53 (C.A.), leave to appeal refused [1993] 1 S.C.R. vii; 151 N.R. 400; 31 B.C.A.C. 320; 50 W.A.C. 320, refd to. [para. 57].

Chicken Marketing Board (B.C.) v. British Columbia Marketing Board (2002), 174 B.C.A.C. 15; 286 W.A.C. 15; 216 D.L.R.(4th) 587 (C.A.), refd to. [para. 58].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 211 D.L.R.(4th) 577, refd to. [para. 60].

Authors and Works Noticed:

de Smith, S.A., Constitutional and Administrative Law (4th Ed. 1981), p. 558 [para. 53, footnote 2].

Kerans, Roger P., and Willey, Kim, Standards of Review Applied in Administrative Law and Arbitration, Alberta Law Conference 2004, pp. 89 to 91 [para. 50, footnote 1].

Counsel:

E.C. Wilson, Q.C., for the appellant;

L. Whittaker, for the respondent, Law Enforcement Review Board;

J.F. Cordeau and A.D. Grosse, for the respondent, Chief of Police.

This appeal was heard on December 2, 2003, before Côté, Conrad and Costigan, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was filed on June 9, 2004, including the following opinions:

Costigan, J.A. (Côté, J.A., concurring) - see paragraphs 1 to 40;

Conrad, J.A., dissenting - see paragraphs 41 to 100.