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~ Where an employee has been investigated for misconduct, but the allegations have been withdrawn, it is not open to the employer to leave employment restrictions in place as a guard against testamentary risk. ~
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 Charges were laid against the officer in 2009, but the charges were withdrawn in 2010.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 The Appellant maintained the restrictions to the present day, after the charges were withdrawn.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.
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 majority considered this reasonable, and found that an O’Connor application would also be unlikely to succeed should one be brought. The allegations against the officer were never the subject of a hearing and were withdrawn seven years before the matter came before the Court of Appeal. It was unreasonable for the arbitrator to find that at the time the officer’s award was issued in November 2014, the Appellant was entitled to impose continuing placement restrictions on the officer. To that extent, the award was set aside. Having so found, the majority dismissed the Appellant’s appeal, although they did not endorse the chambers judge’s treatment of the legal issue concerning s. 22 of the Police Service Regulation. They did not consider s. 22 to be directly engaged, as it protects against dated entries on the disciplinary record.
O’Ferrall JA dissented. He would have upheld the chambers judge’s finding on the presence of testamentary risk, while also upholding his decision to remit the matter back to the arbitrator for reconsideration on the indefinite nature of the restrictions. However, he would not have limited the arbitrator’s discretion by insisting upon a temporal limit to the employment restrictions. He agreed with the majority’s characterization of the s. 22 issue.
Counsel Comments provided by: Geoff Hope and Dana Adams, Counsel for the Appellant/Respondent on Cross Appeal, Edmonton Police Service (City of Edmonton)
“This is a decision dealing with the Edmonton Police Service’s right, as an employer, to restrict its officers from occupying positions where they might have to testify in court on the basis that their past disciplinary history could harm the credibility of their testimony.
That right was upheld by the arbitrator in this case, who also found that the specific restrictions placed on the specific officer at issue here (both past and ongoing restrictions) were justified. On judicial review, the chambers judge upheld most of the Arbitrator’s decision, but found that the lack of a definitive end point to the ongoing restrictions made the decision unreasonable. The chambers judge’s conclusion in this regard was based on his interpretation of s. 22 of the Police Service Regulation, which provides that any record of discipline against an officer is removed from that officer’s disciplinary record after five years. The chambers judge held that this provision meant that any disciplinary history could not be taken into consideration by the employer in making the type of management decisions at issue here after the five-year period expires. The EPS disagreed with this interpretation of s. 22 of the Police Service Regulation and appealed the chambers judge’s decision on that basis.
On appeal the EPS argued that s. 22 of the Police Service Regulation only prevents to EPS from relying on past discipline records in future disciplinary proceedings and is, therefore, irrelevant to the EPS’ management right to assess risk when determining which positions an officer can occupy. While the Court of Appeal ultimately held that the restrictions that continued past the date of the Arbitrator’s decision in this specific case, and for this specific officer, were unreasonable, the Court was careful to clarify that it was not making that decision on the basis of s. 22 of the Police Service Regulation and did not endorse the chambers judge’s interpretation of that provision. Importantly, the Court held that:
Section 22 of the Regulation is not directly engaged by the facts of this case since s 22 protects against dated entries on the disciplinary record… being used in subsequent disciplinary proceedings… This case did not directly engage s 22 because the collective agreement terms were at issue and it did not involve disciplinary proceedings…
Therefore, while the Court of Appeal has held that the imposition of these specific restrictions in this specific case after the date of the Arbitration decision was not reasonable, the EPS’ ability to reasonably manage its operations under the collective agreement remains intact. This can continue to include restrictions on positions to address a risk that prosecutions might be sidetracked by questions about an officer’s credibility where those restrictions are reasonable in the circumstances. Moreover, the ability of the EPS to reasonably manage its operations in that manner is not impacted by the expunging of disciplinary records for disciplinary purposes under the Police Service Regulation.”