Edmonton Police Service v. Furlong et al., (2014) 572 A.R. 224

• Judge: Picard, Veldhuis and Wakeling, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 27, 2014
• Citations: (2014), 572 A.R. 224;2014 ABCA 119

Police Service v. Furlong (2014), 572 A.R. 224; 609 W.A.C. 224 (CA)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AP.005

Cst. Robert Furlong (#2524)

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

(1303-0202-AC; 2014 ABCA 119)

Indexed As: Edmonton Police Service v. Furlong et al.

Alberta Court of Appeal

Picard, Veldhuis and Wakeling, JJ.A.

March 27, 2014.

Summary:

The presiding officer at a disciplinary hearing found a police officer guilty of four counts of discreditable conduct respecting abusive conduct towards a fellow officer (urinated on him, pushed him into a wall, used profane, abusive and insulting language, and confined the officer to his assigned room and would not let him leave). All conduct related to a 15 minute period at a police safety training course. The presiding officer ordered that the officer be dismissed from the force. The officer appealed. The Law Enforcement Review Board found the penalty too harsh and reduced it to a two year reduction in seniority. The police chief appealed, arguing that the Board failed to apply the correct standard of review in reducing the penalty imposed.

The Alberta Court of Appeal, in a judgment reported (2013), 544 A.R. 191; 567 W.A.C. 191, allowed the appeal and remitted the matter for reconsideration. The Board erred in finding that its "civilian oversight" required that it apply a "more robust" standard of review than the normal "reasonableness" standard. The correct issue was whether the penalty imposed was reasonable and the Board may have overemphasized the need for an "irretrievable breakdown in the relationship" to support dismissal. The parties applied for direction as to whether the reconsideration should be heard by the same panel or a new panel.

The Alberta Court of Appeal, in a judgment reported (2013), 553 A.R. 126; 583 W.A.C. 126, held that "issues relating to fairness and the appearance of impartiality favour a fresh panel. There are no practical reasons why a fresh panel could not be appointed, and a fresh panel can likely deal with the issues efficiently". A new Board upheld the presiding officer's decision. The officer appealed on the grounds that the new Board's decision was unreasonable and for failing to explain how, on the same facts, the new Board could reach a conclusion at variance with the first Board's decision.

The Alberta Court of Appeal dismissed the appeal. The new Board correctly stated and applied the reasonableness standard of review to the presiding officer's decision. The new Board, like a court on a retrial, was not bound by the findings and decision of the first Board. There was no reviewable error by either the new Board or the presiding officer.

Courts - Topic 89

Stare decisis, authority of judicial decisions - Prior decisions of same court - Boards and tribunals - [See Police - Topic 4205 ].

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - [See Police - Topic 4205 ].

Police - Topic 4166

Internal organization - Discipline - Appeals and judicial review - Powers of appeal or review board - [See Police - Topic 4205 ].

Police - Topic 4205

Internal organization - Discipline - Punishment - Dismissal - The presiding officer at a disciplinary hearing found a police officer guilty of four counts of discreditable conduct respecting abusive conduct towards a fellow officer (urinated on him, pushed him into a wall, used profane, abusive and insulting language, and confined the officer to his assigned room and would not let him leave) - All conduct related to a 15 minute period at a police safety training course - The presiding officer ordered that the officer be dismissed from the force - The officer appealed - The Law Enforcement Review Board found the penalty too harsh and reduced it to a two year reduction in seniority - The police chief appealed, arguing that the Board failed to apply the correct standard of review in reducing the penalty imposed - The appeal was allowed and remitted to a new Board for reconsideration - The Board erred in finding that its "civilian oversight" required that it apply a "more robust" standard of review than the normal "reasonableness" standard - The correct issue was whether the penalty imposed was reasonable and the Board may have overemphasized the need for an "irretrievable breakdown in the relationship" to support dismissal - The new Board, applying the reasonableness standard of review, reheard the matter and upheld the presiding officer's decision (dismissal) - The officer appealed on the grounds that the new Board's decision was unreasonable and for failing to explain how, on the same facts, the new Board could reach a conclusion at variance with the first Board's decision - The Alberta Court of Appeal dismissed the appeal - The new Board correctly stated and applied the reasonableness standard of review to the presiding officer's decision - The new Board, like a court on a retrial, was not bound by the findings and decision of the first Board - There was no reviewable error by either the new Board or the presiding officer.

Cases Noticed:

Confederation Life Insurance Co. v. Woo Investments Inc. et al. (1994), 123 Sask.R. 150; 74 W.A.C. 150 (C.A.), leave to appeal denied [1995] 1 S.C.R. xi; 185 N.R. 157, refd to. [para. 3].

Lewis v. Cook, [1950] 4 D.L.R. 136; [1950] 2 W.W.R. 451 (B.C.C.A.), affd. [1951] S.C.R. 830, refd to. [para. 3].

Counsel:

P.G. Nugent, for the appellant;

S.D. Johnson and M.S. Sestito, for the respondent, Chief of Police of the Edmonton Police Service;

S.P. McDonough, for the respondent, Law Enforcement Review Board.

This appeal was heard on February 25, 2014, before Picard, Veldhuis and Wakeling, JJ.A., of the Alberta Court of Appeal.

On March 27, 2014, the following memorandum of judgment was filed by the Court.