Mar 9, 2017

Admin Law - Boards and Tribunals - Judicial Review

Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399 (CanLII)
[A Maritime Law Book headnote from the Compass.law database]

The Alberta Criminal Trial Lawyers' Association (CTLA) filed a complaint with the Chief of the Edmonton Police Service concerning a staff sergeant (Newton). As a result of the investigation, Newton was charged with two disciplinary counts: (1) unnecessarily launching an investigation, and (2) unauthorized computer searches/insubordination. The CTLA did not participate in the hearing. The presiding officer found that the first count had not been established, but the second had, and imposed a written reprimand. The CTLA appealed the decision and the penalty. The Law Enforcement Review Board conducted a de novo hearing and allowed the CTLA to call evidence. The Board concluded that Newton exercised his authority when it was unlawful or unnecessary to do so, overruled the decision of the presiding officer, and found Newton guilty of insubordination. Newton applied for leave to appeal. The essential complaint was that the Board completely disregarded the decision of the presiding officer.

The Alberta Court of Appeal, per Watson, J.A., in a decision reported at (2008), 446 A.R. 1; 442 W.A.C. 1, granted leave to appeal on three issues.

The Alberta Court of Appeal allowed the appeal and set aside the Board's decision: (1) the Board erred in law by conducting a de novo hearing, and by allowing the CTLA to call evidence which was called or available at the disciplinary hearing, without requiring it to meet the legal test for new evidence; (2) the Board failed to apply the correct standard of review; and (3) the Board erred in failing to consider the exhibits tendered, including the transcript of the hearing before the presiding officer. While the matter was to be remitted to the Board for rehearing by a new panel, the delay in this case had been "inordinate", and "those involved should consider whether further proceedings are warranted".

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Alberta Court of Appeal discussed the standard of review analysis respecting the relationship between superior courts and administrative tribunals - "Truly jurisdictional questions are usually reviewed for correctness. Errors of law within the expertise or mandate of the tribunal are often reviewed for reasonableness. Questions of law of more general interest to the legal system are often reviewed for correctness. The standard of review applied by the superior courts to decisions of administrative tribunals recognizes the purely supervisory role of the superior courts ... [I]t is not their place to substitute their judgment for that of the tribunal. The legislature has given the authority to make the decisions under review to the tribunal, not the courts. Therefore, deference to the decision of the tribunal is an important factor in setting the standard of review" - See paragraphs 32 and 33.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Alberta Court of Appeal discussed the standard of review analysis respecting the relationship between superior courts and administrative tribunals - The court stated that the standard of review was set by considering the four "Dunsmuir/Pushpanathan" factors: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue; and (4) the expertise of the tribunal - It was important to note that those factors rested on an unstated assumption: "that the relationship of the reviewing and reviewed bodies is a constant" - The four factors presumed that constant, and were applied assuming that context - See paragraph 34.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Alberta Court of Appeal discussed the two main paradigms governing the standard of review analysis - "Under Housen it was not necessary to do the standard of review analysis for each trial court, as had to be done under the paradigm for each administrative tribunal ... The Housen and the Dunsmuir/Pushpanathan analyses intersect when a court of appeal is reviewing the decision of a superior trial court, which has judicially reviewed the decision of an administrative tribunal. The trial court must be correct in its selection of the standard of review it should apply to the tribunal ... The selection of the standard of review by the trial court is a question of law which the court of appeal reviews for correctness. This is a pure application of the Housen test, not the Dunsmuir/Pushpanathan test" - See paragraphs 34 and 35.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Alberta Court of Appeal stated that "Some courts have assumed that an appellate administrative tribunal must be correct in its selection of the standard of review it applies to the decision of the tribunal of first instance ... Essentially, these courts have assumed that the test set out in Dr. Q applies to appellate administrative tribunals ... But as noted, the rule as stated in Dr. Q is an application of the Housen test, not the Dunsmuir/Pushpanathan test. Because an appellate administrative tribunal is not analogous to a trial court, the Housen test is not obviously the one applicable, and it is not self-evident that Dr. Q applies in this context" - See paragraph 36.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Alberta Court of Appeal stated that, when an administrative structure included a tribunal of first instance and an appellate tribunal, "neither the Housen [standard of review] analysis, nor the Dunsmuir/Pushpanathan analysis seems entirely apt. They are both based on different constitutional and legal foundations. The relationships that they govern are not necessarily the same as the relationship between an appellate tribunal and an administrative tribunal of first instance. The role of an internal appellate tribunal operating within an administrative structure is significantly different from that of an external reviewing superior court ... The standard of review that should be applied by an appellate administrative tribunal to the decisions of a tribunal of first instance should be categorized as a question of law. The correct answer depends in large part on the exact wording of the statute" - See paragraphs 37 and 38.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Alberta Court of Appeal discussed the standard of review analysis respecting the relationship between superior courts and administrative tribunals, and summarized the proper approach as follows: "(a) the superior court should use the Dunsmuir/Pushpanathan analysis in determining what standard of review it will apply to the legal question of the appropriate standard of review to be used by the appellate tribunal. The rule in Dr. Q, which applies the Housen analysis, is not the correct approach; (b) applying the four Dunsmuir/Pushpanathan factors will often result in the superior court applying a correctness standard of review to the selection by the appellate tribunal of the standard of review it will apply to the tribunal of first instance. Subject to the specific provisions of the statute, this is a part of the legitimate supervisory role of the superior court" - See paragraphs 40 and 41.

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - The Alberta Court of Appeal stated that the determination of the standard of review to be applied by an appellate administrative tribunal to the decision of an administrative tribunal of first instance required an examination of the following factors: "(a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; (b) the nature of the question in issue; (c) the interpretation of the statute as a whole; (d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; (e) the need to limit the number, length and cost of appeals; (f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and (g) other factors that are relevant in the particular context" - See paragraphs 41 to 43.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - This appeal concerned the structure and interrelationship of the tribunals in Alberta that reviewed the conduct of police officers in disciplinary proceedings under the Police Act - The Law Enforcement Review Board concluded that it was required to hold a de novo hearing on every appeal, and assumed that engaged a correctness standard of review - The Alberta Court of Appeal stated that "[t]he mere presence of a right of appeal [from the presiding officer to the Board] does not warrant a correctness standard of review. Even if the appeal is to be held de novo, that does not necessarily mean that no deference whatsoever should be applied to the decision of the presiding officer" - See paragraphs 52 to 56.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - An appeal was launched from the decision of a presiding officer in a police disciplinary proceeding under the Police Act (Alberta) - The specific issue was the extent to which the Law Enforcement Review Board might conduct a fresh hearing on fresh evidence - The Alberta Court of Appeal stated that the primary factor in setting the standard of review was to examine the respective roles of the tribunal of first instance (the presiding officer) and the appellate administrative tribunal (the Review Board) - The respective role of the reviewing and reviewed tribunal was first and foremost a question of statutory interpretation - It involved determining what function the legislature intended the initial tribunal to perform, and what type of supervisory role was intended for the appellate tribunal - See paragraph 57.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - The Alberta Court of Appeal discussed the "hybrid model" of police discipline adopted by Alberta - "The initial investigation and prosecution of police misconduct is done within the police forces. Appeals are then available to the Law Enforcement Review Board, which is a civilian tribunal. Further appeals on points of law are available with leave to the Court of Appeal" - The mandate of the Law Enforcement Review Board was different from most appeal tribunals, in that it had a dual role - The Board had the usual appellate mandate to review the decisions of presiding officers for fairness in result, and compliance with the acceptable range of outcomes having regard to the standard of review - It also had a mandate to provide civilian oversight of the police disciplinary process, and acceptable standards of police conduct - That dual mandate would not be engaged in all appeals - See paragraphs 59 to 61.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - The Alberta Court of Appeal stated that the legitimate role of the Law Enforcement Review Board in providing civilian oversight in police disciplinary proceedings under the Police Act did not warrant a correctness standard of review in every case - Alberta's hybrid system of police discipline recognized a legitimate role for the presiding officers and the chief of police - Failing to afford any deference to their decision undermined the importance and legitimacy of their perspective on the case before them - "The universal application of a correctness standard of review by the Board seems to assume that internal police discipline is inherently ineffective, or that civilian oversight of police discipline is a value that trumps all others. Assuming that the primary process of internal police discipline is inherently flawed is contrary to the overall intent of the statute" - See paragraphs 62 and 63.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - The central issue in this appeal was the respective roles of presiding officers and the Law Enforcement Review Board in the police disciplinary process in Alberta - The Alberta Court of Appeal held that there was nothing about the statutory role of the Board that compelled a correctness standard of review in every case - "Regardless of the procedure used before the Board, the proceedings are still an 'appeal'. Their fundamental purpose is still to review the decision made by the presiding officer. Subsections 47(1)(g) and (h) [of the Police Act] require that a record be kept of the proceedings before the presiding officer ... [T]he primary purpose of that record is to enable the Board to review the particular decision of the presiding officer for error, and to provide overall civilian oversight of the process. The Act does not contemplate the Board becoming a tribunal of first instance, essentially rendering all the proceedings before the presiding officer irrelevant and academic" - See paragraphs 64 and 65.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - The Criminal Trial Lawyers' Association (CTLA) filed a complaint of police misconduct under the Police Act (Alberta) - It had no involvement or direct interest in the events underlying the complaint - Under the Act, a complainant had no standing at the hearing before the presiding officer, but had a right of appeal - The Law Enforcement Review Board allowed the CTLA to retry the case de novo - It reasoned that it was inappropriate to require the CTLA to show any error in the decision of the presiding officer; no deference was owed; and the standard of review was assumed to be correctness - The Alberta Court of Appeal held that those factors did not warrant ignoring the proceedings before the presiding officer, and the conclusions he reached - "If the complainant could show some flaw or misconduct in the investigation and prosecution of the case by the presenting officer, the Board can provide a general level of civilian oversight of the entire procedure. But the appeal rights given to the complainant under the Act do not compel a correctness standard of review" - See paragraphs 66 to 75.

Police - Topic 4161

Internal organization - Discipline - Appeals and judicial review - General (incl. standard of review) - The Alberta Court of Appeal stated that, in dealing with appeals under the Police Act, it was not appropriate to simply assume that the expertise of the Law Enforcement Review Board prevailed over that of the presiding officer, or vice versa - "Which body's expertise should prevail will depend on the nature of the question. Where the issue relates to technical policing issues, the views of the presiding officer are entitled to deference. Where the issue relates to the transparency and integrity of the police discipline process itself, the views of the Board can legitimately prevail. The Board should ask whether the appeal in question raises, at its core, the need for civilian oversight of the police disciplinary process" - The court characterized the issues most likely to come before the Board - Measuring the relative expertise of the presiding officer and the Board was therefore a process that varied with the issue - See paragraphs 76 to 79.

Police - Topic 4169.1

Internal organization - Discipline - Appeals and judicial review - Grounds - Error of law - The Law Enforcement Review Board (Alberta) concluded that, absent consent, it must always have a de novo hearing - The Board primarily disagreed with the presiding officer on the amount of information that was needed to justify a police investigation - The Alberta Court of Appeal held that neither a de novo hearing nor fresh evidence were required for that purpose - "The Board was therefore in error in concluding that it was required by the statute to hold a de novo hearing in every appeal unless the parties consented to proceeding otherwise. The main role of the Board is to review the record for error, and to provide civilian oversight of the process, while respecting the legitimate role and expertise of the presiding officer. The starting point is that the appeal is on the record, with an ability to admit new evidence when warranted by the issues on appeal" - See paragraphs 50 and 51.

Police - Topic 4169.1

Internal organization - Discipline - Appeals and judicial review - Grounds - Error of law - The Law Enforcement Review Board (Alberta) provided no analysis of the reasons of the presiding officer, the tribunal of first instance - Rather, it summarized the evidence it heard de novo and came to its own conclusions - A question on appeal was whether the Board's interference with the decision of the presiding officer was justified - The Alberta Court of Appeal held that, because of the procedure that the Board adopted, it applied a correctness standard of review, whereas the issues called for a reasonableness standard - The Board approached the appeal as raising issues of fact, and a related policy issue respecting the appropriate standard of police conduct, i.e., the threshold level of information that justified commencing a police investigation - The decision on such questions of fact was entitled to deference - Unless the findings were unreasonable, the Board should not interfere - The policy issue engaged the expertise of both the presiding officer and the Board - "While the Board, in exercising its mandate of civilian oversight, is not bound by the conclusions of the presiding officer on the policy issue, the Board should not simply step around those conclusions" - See paragraph 95.

Police - Topic 4172

Internal organization - Discipline - Appeals and judicial review - Evidence (incl. fresh evidence) - The Law Enforcement Review Board (Alberta) relied on s. 20(1)(g) of the Police Act to admit fresh evidence to justify de novo hearings - The Board interpreted s. 20(1)(g) to read: "in the case where the Board is conducting an appeal, the Board may receive new evidence whether or not it was available when the matter was initially heard or considered" - The Alberta Court of Appeal held that the Board erred in concluding that it was required by the Police Act to hold a de novo hearing in every appeal unless the parties consented to proceeding otherwise - The proper interpretation was that the Board had a discretion to receive new evidence if it was not available at the time of the original hearing, or if it was available but not presented there were good reasons for allowing it on appeal - Section 20(1)(p) allowing the Board, with the consent of the parties, to dispense with any hearing, was not inconsistent with that interpretation - Nor did other provisions of the Act signal an intention to mandate a de novo hearing in every appeal - See paragraphs 45 to 47.

Police - Topic 4172

Internal organization - Discipline - Appeals and judicial review - Evidence (incl. fresh evidence) - This appeal concerned the interrelationship of the tribunals in Alberta that reviewed the conduct of police officers in disciplinary proceedings under the Police Act - The Alberta Court of Appeal stated that it was "singularly inefficient" to run two successive hearings in the way that happened here - "The presiding officer heard all the witnesses and was entitled to make findings of fact and credibility. Fulfilling the Board's legitimate role did not require that it repeat that entire process, except perhaps in unusual cases. The law and the Act also presume the competency and legitimate role of the presiding officers" - The Board routinely rehearing all matters on a de novo basis would undermine the integrity of the hearings before the presiding officers, and was inconsistent with the hybrid scheme of the Act - See paragraphs 80 and 81.

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - The central issue in this appeal was the respective roles of presiding officers (the tribunal of first instance) and the Law Enforcement Review Board in the police disciplinary process in place in Alberta - The Alberta Court of Appeal stated that "[a] threshold issue is to determine the standard of review that the Court of Appeal should apply to the decision of the Board ... [T]he main issue in this appeal is the standard of review that the Board should apply to the decision of the presiding officer. The threshold issue is therefore the 'standard of review of the selection of the standard of review'. The discussion of the two standards of review necessarily overlaps" - See paragraphs 27 and 28.

Police - Topic 4173

Internal organization - Discipline - Appeals and judicial review - To court - Scope or standard of review - The Alberta Court of Appeal concluded that the proper standard of review for the court to apply to the decision of the Law Enforcement Review Board (in selecting the standard of review it should apply to the decision of the presiding officer) was correctness - There was no privative clause, and there was a right of appeal, suggesting less deference - The Board had no expertise in the setting of standards of review, also suggesting less deference - Setting the standard of review required interpretation of the Board's home statute, an issue on which deference was often shown - Further, the Board would have a better awareness of its role within the administrative structure, compared to the role of the presiding officers, suggesting more deference - However, the appropriate standard of review was a question of general interest to the legal system, suggesting a correctness standard - "Setting the standard of review is a legitimate aspect of the superior court's supervisory role, suggesting less deference" - See paragraph 39.

Cases Noticed:

Inspector Boulanger (Brian), Re, L.E.R.B. No. 021-2006, refd to. [para. 17].

Robertson v. Edmonton Chief of Police et al. (2003), 339 A.R. 169; 312 W.A.C. 169; 2003 ABCA 279, refd to. [para. 26].

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 29 Alta. L.R.(4th) 243; 2004 ABCA 175, refd to. [paras. 26, 36].

Robertson v. Edmonton Chief of Police et al. (2004), 362 A.R. 44; 39 Alta. L.R.(4th) 263; 2004 ABQB 519, refd to. [para. 26].

Dahlgren and McKinley, Re, L.E.R.B. No. 017-984, refd to. [para. 26].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 30].

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. 32].

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, refd to. [para. 32].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599; 2003 SCC 19, refd to. [para. 35].

College of Hearing Aid Practitioners of Alberta v. Zieniewicz et al., [2003] A.R. Uned. 678; 24 Alta. L.R.(4th) 59; 2003 ABCA 346, refd to. [para. 36].

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, refd to. [para. 37].

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; 2002 BCCA 473, refd to. [para. 37].

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; 2003 SCC 20, refd to. [para. 39].

College of Physicians and Surgeons (Ont.) v. Payne et al. (2002), 163 O.A.C. 25; 219 D.L.R.(4th) 350 (Div. Ct.), refd to. [para. 42].

Imperial Oil Resources Ltd. v. 826167 Alberta Inc. (2007), 404 A.R. 212; 394 W.A.C. 212; 72 Alta. L.R.(4th) 201; 2007 ABCA 131, refd to. [para. 52].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 54].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 55].

Statutes Noticed:

Police Act, R.S.A. 2000, c. P-17, sect. 20(1)(g) [paras. 18, 45]; sect. 20(1)(p) [para. 46].

Counsel:

M.T. Duckett, Q.C., for the appellant;

E.D. Norheim, for the respondent, Criminal Trial Lawyers' Association;

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

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

R. Khullar, for the intervenor, Edmonton Police Association;

A.J. Landry, Q.C., for the intervenor, Calgary Police Association.

This appeal was heard on October 5, 2010, by Ritter, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. In written reasons by Slatter, J.A., the Court of Appeal delivered the following judgment, filed at Edmonton, Alberta, on December 17, 2010.