Summaries Sunday: OnPoint Legal Research

• Author: Administrator
• Date: December 10, 2017

One Sunday each month OnPoint Legal Research provides Slaw with an extended summary of, and counsel’s commentary on, an important case from the British Columbia, Alberta, or Ontario court of appeal.

Edmonton Police Association v Edmonton (City), 2017 ABCA 355

AREAS OF LAW: Labour law; Grievance; Employment restrictions; Testamentary risk

~ Where an employee has been investigated for misconduct, but the allegations have been withdrawn, it is not open to the employer to leave employment restrictions in place as a guard against testamentary risk. ~

BACKGROUND:

An officer employed by the Appellant City of Edmonton – Edmonton Police Service was investigated for misconduct in the early 2000s. Charges were laid against the officer in 2009, but the charges were withdrawn in 2010. While the misconduct charges were being investigated, the Appellant imposed restrictions on the officer’s rights to promotion and transfer. This action was permitted under the Appellant’s management rights powers in the collective agreement. The Appellant maintained the restrictions to the present day, after the charges were withdrawn. Its reason for doing so was that if the officer was required to testify in a case that he might bring against the Appellant, his testimony will be at risk if the Appellant sought disclosure of the unproven allegations. His evidence could be compromised, and the trial derailed. The Respondent Edmonton Police Association and the officer filed grievances against the Appellant. In November 2014, an arbitrator upheld the grievances in part, but did not grant the officer a remedy requiring the employment restrictions to be lifted, either at that time or at a specific time in the future. This decision was upheld on judicial review, although the chambers judge did conclude that leaving the restrictions in place indefinitely was not reasonable. The Appellant appealed the chambers judge’s decision insofar as he found the arbitrator was unreasonable in upholding indefinite restrictions. The Respondent cross-appealed the portion of the chambers judge’s decision upholding the arbitrator’s finding that the restrictions on the officer’s employment based on testamentary risk were reasonable.

APPELLATE DECISION:

The appeal was dismissed and the cross-appeal allowed. The arbitrator had found a low testamentary risk in the circumstances of this case, should the Appellant make an O’Connor third party records application in a potential claim against it in the future. The...