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REGULATED OCCUPATIONS - Administration - Appeals - Occupations - Police officers

Tuesday, September 05, 2017 @ 9:09 AM  


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Application by Constables Deluca, Paulino and Coughlan for leave to appeal from Law Enforcement Review Board (LERB) decisions declining jurisdiction to hear their appeals against what they described as disguised discipline. Deluca and Paulino were involuntarily transferred from their positions as instructors in the Edmonton Police Service (EPS) Recruit Training Unit and alleged it was covert discipline to punish them for comments they made on Facebook and at a subsequent EPS meeting. EPS took the position that the transfers were non-disciplinary and made in accordance with its administrative policy for internal transfers. Coughlan’s name was removed from a School Resource Officer placement list after her superior officer initiated an investigation alleging she had committed discreditable conduct. Coughlin claimed that this was improper and premature discipline that occurred before EPS completed its investigation. EPS suggested that it removed Coughlan from consideration for the placement for non-disciplinary reasons. The officers appealed the alleged disguised discipline to the LERB. The LERB stated that its statutory mandate was to deal with complaints on appeal and that, because there had been no complaint, investigation, findings or action taken in relation to a complaint, there was nothing from which the officers could appeal. The LERB also concluded that it did not have implied jurisdiction over complaints of disguised discipline because the Police Association could refer allegations of disguised discipline to a judge of the Court of Queen's Bench for a determination under s. 26 of the Police Officers Collective Bargaining Act (Act). It further determined that Coughlan’s appeal was premature, holding that the LERB lacked jurisdiction to hear the appeal before the Police Act investigation concluded and the Chief of Police reached a decision disposing of the complaint.

HELD: Application allowed. Leave was granted because the officers raised significant questions of law with respect to whether the LERB erred in declining jurisdiction to hear the complaints, and, if not, whether it erred in concluding that the proper process to resolve allegations of disguised or improper discipline was an application to the Court of Queen's Bench under s. 26 of the Act. The proposed appeals had a reasonable prospect of success.

Deluca v. Alberta (Law Enforcement Review Board), [2017] A.J. No. 810, Alberta Court of Appeal, B.L. Veldhuis J.A., August 3, 2017. Digest No. TLD-Sept42017003