Case: Edmonton (Police Service) v Deluca, 2020 ABCA 31
Keywords: permission to reconsider; police; “disguised discipline”; Edmonton Police Association v Edmonton (City of), 2007 ABCA 147; Deluca v Alberta (Law Enforcement Review Board), 2018 ABCA 340
The Applicant Chief of the Edmonton Police Service requests permission to argue that the Court of Appeal should reconsider its decisions in Edmonton Police Association v Edmonton (City of), 2007 ABCA 147 and Deluca v Alberta (Law Enforcement Review Board), 2018 ABCA 340.
The issue is whether the Law Enforcement Review Board has jurisdiction to hear an appeal on the subject of “disguised discipline”. The Applicant argues it does not – that hearing such a matter would be an expansion of the Board’s jurisdiction which is not supported by the Police Act, RSA 2000, c P-17.
The Court of Appeal is satisfied permission to reconsider its decisions in Murdoch and Deluca should be granted.
Citing McAllister v Calgary (City), 2012 ABCA 346 at para 9 and R v Oliver, 1996 ABCA 282 at paras 4, 12, the Court of Appeal set out the following factors in determining whether to grant permission for a party to argue that prior precedents should be reconsidered:
- age of the decision;
- whether the decision has been relied upon so as to create settled expectations;
- treatment of the issue by other appeal courts;
- whether the decision has an obvious, demonstrable flaw; and
- whether it was classified as Reasons for Judgment Reserved or a Memorandum of Judgment. (See para. 8).
With respect to age, the Court of Appeal noted that the impact of the Murdoch decision on “disguised discipline” was only recently addressed in 2018. As such, despite the Murdoch decision having been released in 2007, the Court of Appeal found it had not become “settled law”. (See para. 10).
Similarly, the Court determined that Murdoch had not created “settled expectations” and referred to the reluctance of the Court of fully support it in the Deluca matter:
Even in Deluca, the impact of Murdoch was controversial. Justice Strekaf stated at paras 28-29 that the Court was bound by Murdoch, and that if the respondents had wished to challenge Murdoch, they could have asked to have it reconsidered. Justice O’Ferrall concurred “reluctantly” at para 33: “I say ‘reluctantly’ because the jurisdiction of the LERB to hear and decide the constables’ challenges is by no means clear in the Police Act. However, the binding authority is clear.” In his dissenting decision, Justice Wakeling found at para 95 that a clear reading of the Police Act did not grant jurisdiction on the Board unless a complaint had been filed, and that Murdoch must be interpreted within that context. (See para. 12).
The Court of Appeal stated that “three different sets of reasons” in Deluca was evidence Murdoch had “created some controversy”. (See para. 15). In reaching its decision to grant permission, the Court of Appeal considered the fact that appellate courts in other provinces do have implied jurisdiction to hear appeals on a wide array of disciplinary matters, including “disguised discipline”. (See para. 14).
It remains to be seen whether the Court of Appeal will ultimately determine whether Murdoch or Deluca were wrongly decided or whether the issue of “disguised discipline” falls within the ambit of the Law Enforcement Review Board. That being said, this decision demonstrates that the Court of Appeal is engaged in a process of self-reflection on this issue.
Counsel for the Applicant: D.L. Christianson
Counsel for the Respondents: P.G. Nugent and A.R. Cembrowski
Counsel for the Respondent, The Alberta Law Enforcement Review Board: J.M. Dube and D.C. Matchett