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REGULATED OCCUPATIONS - Arbitration - Occupations - Police officers

Thursday, November 16, 2017 @ 8:37 AM  

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Appeal by the Edmonton Police Service (EPS) and cross-appeal by the Edmonton Police Association (EPA) from a judicial review judgment. Following a four-year investigation, the EPS initiated disciplinary charges against a member based on allegations of misconduct involving several sex trade workers. The following year, the charges were withdrawn due to the workers' refusal to cooperate with the proceeding. In the course of the investigation, the EPS imposed restrictions on the member's rights to promotion and transfer. The EPS took the position such restrictions were justified under its management rights power, and were necessary to protect a scenario where the member would be compelled to testify regarding the unproven misconduct allegations, thereby adversely affecting the Crown's position at any trial in which the member was a potential witness. The EPA and the member grieved the decision. The arbitrator found that despite a breach of the collective agreement regarding how the member's requests for transfers were handled, the imposition and maintenance of the restrictions was reasonable. On judicial review, the reasonableness of the imposition of the restrictions was affirmed, but the finding regarding their indefinite maintenance was set aside. The EPS appealed and the EPA cross-appealed.

HELD: Appeal dismissed and cross-appeal allowed. The arbitrator’s decision that the ongoing placement restrictions were justified by testamentary risk was unreasonable. The case law did not support a conclusion that there was a significant chance of a court ordering production of the grievor's investigation records under an O'Connor application in a case in which the grievor was a witness. The aspect of the judicial review judgment finding otherwise was set aside and the grievance was returned to the arbitrator. It followed that the EPS's appeal concerning the duration of ongoing placement restrictions was dismissed. The Court declined to endorse the judicial review court's interpretation of s. 22 of the Police Service Regulation.

Edmonton Police Assn. v. Edmonton (City) Police Service, [2017] A.J. No. 1129, Alberta Court of Appeal, R.L. Berger, B.K. O'Ferrall and S.J. Greckol JJ.A., October 30, 2017. Digest No. TLD-November132017008