In the Court of Appeal of Alberta Citation: Edmonton (Police Service) v Alberta (Law Enforcement Review Board), 2014 ABCA 267 Between: Chief of Police of the Edmonton Police Service - and - Law Enforcement Review Board - and - Sheryle Carlson - and Edmonton Police Association Date: 20140825 Docket: 1203-0109-AC Registry: Edmonton Appellant Respondent Respondent Intervener The Court: The Honourable Mr. Justice J.D. Bruce McDonald The Honourable Madam Justice Myra Bielby The Honourable Madam Justice Doreen Sulyma Reasons for Judgment Reserved of The Honourable Madam Justice Bielby Concurred in by The Honourable Mr. Justice McDonald Concurred in by The Honourable Madam Justice Sulyma
Appeal from the Decision of the Law Enforcement Review Board Dated the 18th day of April, 2012 (No. 016-2012)
Overview of Appeal Reasons for Judgment Reserved of The Honourable Madam Justice Bielby [1] The substance of this appeal addresses a challenge made by the appellant, Chief of Police of the Edmonton Police Service (the Chief ), to a decision made by the Law Enforcement Review Board (the LERB ) to the effect that the contents of an evidentiary record prepared by the Chief for an LERB appeal from one of his decisions became available for public use at the conclusion of its hearing of that appeal, subject to the right of the parties to apply for a sealing or redaction order of some or all of its contents. [2] This appeal is dismissed. Facts [3] Thomas Engel is counsel for the respondent, Sheryle Carlson, who made a complaint to the Chief in relation to the conduct of a police officer employed by the Edmonton Police Service. The procedure for processing that complaint followed the route described in para 59 of Newton v Criminal Trial Lawyers Assn, 2010 ABCA 399, 393 AR 89 [Newton]: [t]he 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. [4] Ms. Carlson s complaint was thus initially investigated by the EPS Professional Standards Branch (the PSB ) pursuant to Part 5 of the Police Act, RSA 2000, c P-17 [Police Act]. On completing its investigation, the PSB forwarded the materials it had created during the investigation to the Chief, who took the view that the contravention complained of was not a serious one. On February 8, 2011, the Chief dismissed the complaint under s 45(4) of the Police Act, without conducting a hearing. [5] Ms. Carlson appealed that decision to the LERB. As required by s 20(1)(d) of the Police Act, the Chief prepared a Record for the LERB, copied to Mr. Engel. It contained all of the information he had considered in arriving at the decision under appeal. This Court highlighted the importance of the role of the Record in Pelech v Law Enforcement Review Board, 2010 ABCA 400 at para 36, 493 AR 335, in which Justice Slatter observed that in many cases the LERB decision should:... primarily be made based on the information that was before the Chief of Police when he made his initial decision. That was the record used by the Chief to decide, and deciding whether his decision... was reasonable must primarily be done based on what he had before him...
Page: 2 [6] When Mr. Engel reviewed the 778 pages of material contained in the Record, he discovered information in four pages of that material which he believed disclosed professional misconduct by an EPS staff sergeant, arising from things said by or attributed to that staff sergeant during the Chief s investigation into the Carlson complaint. [7] Mr. Engel believed he was unable to simply proceed to file his complaint, relying on these four pages, if they were covered by an implied undertaking not to use that material for a purpose outside or collateral to the Carlson complaint, without permission from the LERB or Court. This implied undertaking is said to be similar to that attaching to documents produced between parties in pre-trial civil proceedings, including during questioning. [8] Mr. Engel thus applied to the LERB for permission to use these four pages as evidence to substantiate his own personal albeit separate complaint, as an interlocutory matter in the Carlson complaint. [9] The LERB heard his application prior to adjudicating on the substance of Ms. Carlson s appeal of the Chief s dismissal of her complaint, out of a concern that Mr. Engel would otherwise be time-barred from pursuing his personal complaint. In allowing the application, it concluded that while the contents of the Record, including the four pages in question, were subject to an implied undertaking, that undertaking that would be exhausted when the Record became available to the public at the conclusion of the hearing before it. [10] It reasoned that the Record was analogous to an exhibit entered in a civil trial; the contents of such an exhibit could be confidential among the parties prior to its entry but thereafter would be open to public view. As the hearing in question was conducted entirely in writing, it concluded that the last moment in which the Record could be considered to have been entered, as if it were an exhibit, was at the close of the evidentiary portion of the hearing and thus concluded that it became available to the public at that time, subject to a successful application to redact or seal some part of it. [11] The Chief applied for, and obtained, leave to appeal that decision to this Court. He also applied for an interim order from this Court to seal the parts of the Record which he proposed to file for this appeal. Hearing this interlocutory application some months ago, I declined to grant that order because the Chief had not provided evidence to establish that the beneficial effects of a sealing order would outweigh its deleterious effects. However, I then granted an adjournment to allow the Chief to file such evidence if he wished: Edmonton (Police Service) v Law Enforcement Review Board, 2013 ABCA 236, 553 AR 389. The Chief chose not to do so and withdrew his interim application. [12] The Respondent, the Edmonton Police Association (the EPA ) was granted status as an Intervener on this appeal. The staff sergeant who is the subject of Mr. Engel s personal complaint was represented in the proceedings below but did not appeal the LERB s decision; his interests are represented indirectly on this appeal by the EPA of which he is presumably a member.
Page: 3 [13] The LERB filed a factum and argued matters limited to its jurisdiction in relation to this appeal. Issues [14] Leave to appeal was granted by Watson JA on the following three questions which, somewhat restated, form the issues on this appeal: (1) Does the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 ( FOIPPA ) bar Mr. Engel s use of any portion of the Record as evidence in a collateral matter, absent any successful application for access made under that legislation? (2) Did the LERB err in law in determining that Mr. Engel could otherwise use evidence contained in the Record to support his own complaint to the Chief? (3) Did the LERB err in law in determining that the Record would become available to the public at the conclusion of all its hearings in the future, when that issue was not properly before it? Standard of Review [15] As a result of the Supreme Court of Canada s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, and a number of its following decisions, the reasonableness standard of review presumptively applies to many administrative decisions; see also Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 [Alliance Pipeline] and Nor-Man Regional Health Authority v Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 SCR 616 [Nor-Man]. [16] The standard of correctness will nonetheless be applied to: (1) constitutional issues; (2) questions of general law that are of central importance to the legal system as a whole and that are outside of the tribunal s specialized area of expertise; (3) the drawing of jurisdictional lines between two or more specialized tribunals; and (4) true issues of jurisdiction; Alliance Pipeline at para 26; Nor-Man at para 35. [17] Where it is argued that the correctness standard applies to an issue on appeal, the Court must consider a number of factors, including whether there is a privative clause, whether the administrative tribunal has specialized expertise and the nature of the question: Dunsmuir at para 55. [18] We conclude that the standard of review of correctness applies in relation to the first issue, which engages the interpretation of the provisions of two statutes, FOIPPA and the Police Act, only the latter of which is within the LERB s area of expertise. In a sense, this issue engages the drawing of a jurisdictional line between determination of issues between two separate spheres, one created by the Police Act and the other by FOIPPA. The extent to which the operation of FOIPPA
Page: 4 may limit or prevent the operation of pre-hearing disclosure in relation to administrative tribunals is one which is of central importance to the legal system as a whole. [19] The topic of the reading of a statute aimed at the protection of privacy is clearly of importance to the legal system as a whole, and even to the rule of law: see R v Spencer, 2014 SCC 43, [2014] SCJ No 43. Where the topic of privacy involves a question of law, it is a question of law for which correctness review would apply to superior courts, and no more lax review can logically be extended to an administrative tribunal; see Rogers Communications v Society of Composers, Authors and Music Publishers of Canada 2012 SCC 35 at para 15, [2012] 2 SCR 283. [20] I conclude that the standard of review of reasonableness applies to the second issue. The preparation and filing of the Record as required pursuant to the Police Act is an area within the LERB s expertise. Further, while the existence and application of an implied undertaking of confidentiality is engaged in relation to pre-trial disclosure in civil litigation, it is engaged in a different manner in relation to LERB matters, on appeal rather than arising during the Chief s initial investigative stage; indeed, the analogy of the Record to such an implied undertaking is imperfect, as discussed below. [21] When an administrative tribunal applies a rule or doctrine known to common law, it is not always required to apply the rule in the same manner as does the courts; see Nor-Man; Alberta (Workers Compensation Board) v Alberta (Appeals Commission for Alberta Workers Compensation) 2013 ABCA 412 at para 20, 566 AR 105. It was therefore open to the LERB to conclude that an implied quasi-undertaking arose in the context of an appeal to it (as indeed the parties all concede), rather than simply in the initial arena, a sufficiently unique circumstance so as to trigger a review of its decisions on the reasonableness standard. [22] In relation to the third issue, breaches of the duty of fairness always attract consideration outside of a standard of review analysis. As the Supreme Court of Canada observed in Moreau-Berubé v New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249 at para 74: this issue requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a given situation. Analysis (1) Does the Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25 ( FOIPPA ) bar Mr. Engel s use of any portion of the Record as evidence in a collateral matter, absent any successful application for access made under that legislation? [23] The Chief argues that s 17(1) of FOIPPA operates to prevent public access to information otherwise contained in the Record and should be interpreted so as to impose a permanent aspect of confidentiality on any information it contains, subject to disclosure obtained through compliance with the requirements of legislation alone. Section 17(1) provides that, subject to certain
Page: 5 exemptions, the head of a public body must refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party s personal privacy. [24] An applicant is a person who makes a request for access to a record under FOIPPA; see s 1(b). While no applicant exists in this case, as no such application has been made, the Chief argues that s 17(1) should be interpreted to prevent Mr. Engel s collateral use of information contained in the Record because that information potentially could become part of an access to information request about a third party, the staff sergeant in question, at some future time. He did not, however, raise this concern when initially requested to produce the Record to the LERB nor did he format the Record as he would format a response to an access to information request received pursuant to FOIPPA. [25] If the Chief s argument is correct, the potential that such a FOIPPA access to information request could be made at a future time would immunize the contents of the Record from public scrutiny forever, subject to a successful access to information application by Mr. Engel. [26] I have concluded that the information contained in the Record is exempt from the operation of FOIPPA, with the result that if it were not for the operation of the implied quasi-undertaking of confidentiality as discussed below, Mr. Engel would have been free to use evidence contained in it to found a separate complaint to the Chief at any time. This exemption is founded in the provisions of ss 40(1)(e) and (f) of FOIPPA as follows: s. 40(1) A public body may disclose personal information only...(e) for the purpose of complying with an enactment of Alberta or Canada... (f) for any purpose in accordance with an enactment of Alberta or Canada that authorizes or requires the disclosure... The Police Act is an enactment of Alberta as the phrase is used in each of these subsections. Its provisions, directly and through necessary implication, lead to the conclusion that the LERB is required to give public access to the Record. In particular, s 20(1)(d) of the Police Act expressly requires the Chief to prepare the Record and provide it to the LERB prior to the appeal being heard. Section 20(1)(l) requires that an appeal must be heard in public. [27] Section 20(1)(j) provides that all documentary evidence and things received in evidence at an appeal or an inquiry form the record of the proceeding. While that subsection does not expressly state whether this evidence, which would include the Record, then becomes public, to conclude otherwise would defeat the legislative intent of transparency contained in the requirement that the hearing be held in public. One of the LERB s primary tasks is to ensure that police disciplinary procedures are transparent: Newton at para 63. [28] Public access to the documents filed with a tribunal in a legal proceeding is a necessary component for that proceeding to be truly public, as Slatter J (as he then was) observed in Robertson v Edmonton (City) Police Services (#8), 2004 ABQB 242, 355 AR 265 at para 18:
Page: 6 I agree with counsel that the openness of court documents is as important as the openness of the court itself: Edmonton Journal v. Alberta (Attorney-General), [1989] 2 SCR 1326 at pg. 1340. It is often difficult to follow the arguments in court without access to the documents that are being referred to. Decisions rendered by the court are based not only on the oral portion of the hearing, but also the written material filed on the record. In many cases where written reasons are not given it would be difficult to understand the reasoning behind the judicial decision without having access to the documents. [29] In any event, the interest in balancing transparency of the disciplinary process against the risk of disclosure of third party confidential information through open public access to the Record is addressed to a degree by the practice followed by the Chief in this case, of redacting certain third party information from the Record on at least a preliminary basis and through the further authority of the LERB, on application, to seal or redact parts of the Record where appropriate. [30] Other provisions of the Police Act which support the implication that it authorizes or requires public access to a Record be given includes s 20(1)(p) which provides that with the consent of the parties the LERB may decline to hold an oral hearing and base its decision on the Record and the written proceedings of the parties, as occurred here. A hearing of the latter type can be said to meet the requirement that it be held in public only if the public has access to all the evidence before it and to its ultimate decision because, in part, s 16(5) of the Police Services Regulation requires the LERB s decision to be available to the public. Written decisions are often intelligible only if the reader has access to the evidence upon which they are based. In many instances, a reader will be able to understand a decision for allowing or dismissing an appeal only if able to first read the Record upon which the Chief s decision was based and upon which the LERB makes adjudication. [31] The Legislature s express exemption of evidence contained in court records produced for and during trials, from the operation of FOIPPA demonstrates that the Legislature is quite capable of identifying categories where a general exception should apply and where it should not. Here the Legislature by the Police Act and Regulation does not suggest that the record before the LERB should be deemed to be generally subject to a privacy restriction. [32] For these reasons, I conclude that FOIPPA does not restrict the means by which Mr. Engel could obtain the right to use portions of the Record as evidence to support his own complaint. (2) Did the LERB err in law in determining that Mr. Engel could otherwise use evidence contained in the Record to support his own complaint to the Chief? [33] The LERB held that an implied undertaking of confidentiality over information in the Record existed but was exhausted as that information became available to the public at the close of the hearing, with the result that Mr. Engel was then able to use portions of it as evidence to support his own separate complaint. It also observed that the Chief or another interested person could make an application to seal or redact some or all of the information in the Record, as a means of
Page: 7 addressing third-party confidentiality concerns, although no such application was made to it in this case. The Chief and EPA challenge these conclusions, relying heavily on the law relating to implied undertakings in civil litigation. [34] The implied undertaking of confidentiality in civil litigation prohibits litigants from using evidence obtained in compelled pre-trial discovery or disclosure for any collateral purpose, other than the litigation in which it was produced; see John B. Laskin, The Implied Undertaking in Ontario (1989-90) 11 Advocates Quarterly 298 at 299. The purpose of the rule arises from the compelled aspect of discovery evidence i.e. parties to civil litigation are required to disclose relevant information regardless of privacy concerns and whether or not it tends to self-incriminate. At root is the view that each party will provide more complete discovery if given the assurance that disclosure will not be used for collateral purposes; see Juman v Doucette, 2008 SCC 8 at paras 3, 20, 23-28, [2008] 1 SCR 157. [35] The application of this rule in Alberta was first recognized by Wachowich J (as he then was) in Ed Miller Sales & Rentals Ltd v Caterpillar Tractor Co, (1986) 43 Alta LR (2d) 299, 72 AR 354 (ABQB):... the law implies an undertaking that information acquired through the discovery process shall not be used for any purpose which is ulterior or collateral to the lawsuit ; see also Lac d Amiante du Quebec Ltée v 2858-0702 Québec Inc., 2001 SCC 51 at paras 60 and 70, [2001] 2 SCR 743. [36] No party takes issue with the LERB s decision that the implied undertaking principle applied to proceedings before it, notwithstanding that those proceedings occur in an administrative context rather than in civil litigation. Nor does any party take issue with the LERB s decision that a party to an appeal who receives a copy of the Record from the Chief before the hearing has, from the time of receipt to at least the conclusion of the appeal hearing before it, an implied undertaking not to use any of the information in the Record for a collateral purpose. [37] The rationale for the requirement that the Chief submit the Record and thus disclose the evidence upon which he made the decision under review is the same as that requiring complete disclosure in civil litigation. The Chief is obliged to provide this information; he has no choice but to do so. Holding parties who receive the Record under an implied obligation not to use information in it for a collateral purpose promotes the public interest in obtaining full disclosure of that material from the Chief, just as this promise of confidentiality supports the obligation of complete disclosure between parties in civil actions. [38] While no other court has apparently yet had the occasion to consider the applicability of the principle of implied undertakings generally in the context of professional discipline proceedings, I observe that other administrative tribunals have held the parties to be under obligation to treat disclosed information as confidential in relation to material produced in their proceedings. For example, labour arbitrators and boards have held that parties to a grievance are bound to disclose relevant documents, and a party who receives disclosure is subject to an implied undertaking not to use it for purposes beyond the grievance in question: USWA v Shaw-Almex Industries Ltd, 1984
Page: 8 OLRB Rep 659 at para 18, 1984 CarswellOnt 1013; Saskatchewan v Saskatchewan Government and General Employees Union (Robinson), [2007] SLAA No 15 at para 52, 164 LAC (4th) 129. [39] That said, and notwithstanding that no party to this appeal questioned the LERB s conclusion that an implied undertaking of confidentiality arose in relation to the contents of the Record in these proceedings, I do not accept that a true undertaking of confidentiality existed in this situation; the analogy between it and discovery produced in private litigation is imperfect at best because the rationale for an implied undertaking of confidentiality at play in civil litigation is quite different from that in the LERB context. In particular: (a) (b) (c) (d) The Rules of Court which govern civil procedure require each party to make full disclosure of all relevant and material information in their hands, with no right to resist production of information which is sensitive or confidential. The quid pro quo is that the law insists that the information be used for the civil litigation in which it was produced and for nothing else. This is described as being an implied undertaking that the recipient of the information will not use it for a collateral purpose. It is, of course, not an undertaking at all but really a rule of law. The rationale in play in the LERB context is quite different. When the complainant appeals to the LERB, the Chief must file the record and the complainant gets a copy. This follows from the principle of being entitled to know the case one has to meet. There is no reciprocal obligation on the complainant to provide any information to the Chief or to the LERB. In civil litigation the implied undertaking arises because the party who makes disclosure has a direct interest in keeping its contents confidential. Here the Chief makes the disclosure by way of the Record to meet the obligations imposed by the Police Act, but otherwise has no personal interest in keeping its contents confidential. Rather, at best, the Chief is a surrogate rights holder on behalf of all the people who, although not parties to the matter under appeal to the LERB, have private information contained in the Record. The issue here is transparency of public law proceedings, not the balancing of the rights of two private parties engaged in litigation. In any event, once a decision of the LERB is appealed to the Court of Appeal the contents of the Record will become accessible to the public, as it is required to be filed as part of the documents supporting the appeal. There is no situation in which information disclosed in civil litigation which is not entered as an exhibit at trial will later become accessible to the public. [40] A closer, but also imperfect analogy is to Stinchcombe disclosure. In the criminal and quasi-criminal context, an accused is entitled to have disclosure under the Stinchcombe principles established by the Supreme Court of Canada in R v Stinchcome, [1991] 3 SCR 326, 120 AR 161. That is a constitutionally protected right, designed to enable full answer and defence. An accused has a right to receive this information, but has no corresponding obligation to provide information. An issue may arise as to whether the disclosure can only be used to defend the charges which are the subject of the proceeding in which it originates, or may be used by an accused for any purpose.
Page: 9 In this sense there is a superficial similarity to the implied undertaking considered here, but arguably absent the constitutional imprimatur attaching to Stinchcombe disclosure. [41] The issue might better be framed through an application for a publication ban, arising from a determination of whether any documents contained in the Record prepared by the Chief pursuant to the obligations imposed under s 20 of the Police Act may be used by a complainant for any purpose, and whether that information becomes available for any use under the open courts principle once introduced in any LERB hearing, rather than under the label of implied undertaking of confidentiality. As that issue was not raised nor argued in this appeal, it must be left for another day, but I have nonetheless chosen to describe it as an implied quasi-undertaking of confidentiality hereafter to maintain awareness of this distinction. [42] For these reasons I accept that Mr. Engel was bound by an implied quasi-undertaking of confidentiality which precluded him from using information contained in the Record as evidence to support a separate discipline complaint without specific permission from the LERB or a court order. [43] The issue then becomes whether the LERB was correct in concluding that the quasiundertaking disappeared at the close of its hearing of the Carlson complaint. Typically, as noted, the implied undertaking of confidentiality for information disclosed in pre-trial civil litigation disappears if and when the information becomes evidence at trial, as trials are public proceedings. This principle is important to ensure that justice is done and can be seen to be done; see Bodnar v Cash Store Inc, 2010 BCSC 660 at paras 36-37, 10 BCLR (5th) 355 [Bodnar]. Any evidence entered at a trial therefore passes into the public domain. [44] The LERB analogized the way the Record becomes available to the public at the close of the hearing to the entry of an exhibit at trial. A trial exhibit, although confidential beforehand, becomes fully accessible to the public at the moment it is entered into evidence at trial. The close of hearing becomes the effective trigger for the right of public access to the Record which was not formally entered as an exhibit in the LERB hearing, no doubt because this hearing like most LERB hearings was completely conducted through exchange of written submissions and evidence rather than by way of an in-person hearing. [45] The Chief argued that this was a false analogy. Rather, he suggests the Record should be considered in the same light as pre-trial disclosure, little of which typically is entered in evidence at trial and little of which thus becomes publicly available. Only those portions of disclosure chosen by each party as required to prove its case or raise its defence are entered as evidence. Typically, a vastly larger number of documents are disclosed than ultimately bear a trial exhibit stamp and thus become open to public view. Where a civil lawsuit is settled prior to trial, as is often the case, none of the documents disclosed during the discovery process become available to the public. Even documents exhibited to affidavits supporting interlocutory applications may not lose their confidential nature when filed with the court; see Bodnar.
Page: 10 [46] The Chief observed that the Record includes some evidence which has little relevance to the Carlson complaint yet which exposes arguably confidential information about a third party, the staff sergeant, in a circumstance where it was not possible for that officer to challenge the veracity of the information before it was disclosed. [47] This is notwithstanding the Chief s practice of redacting some third-party information from the Record in advance of producing it, and in the absence of an application by the staff sergeant in question, or by the EPA of which he is presumably a member, at the LERB hearing to redact or seal the portion of the Record which formed the gist of Mr. Engel s concern. [48] An analysis of the nature of a Record supports the conclusion, however, that it does become publicly available at the conclusion of the LERB appeal hearing because it is more akin to a publicly available transcript of the evidence heard at trial, or exhibits entered at trial, than to pre-trial disclosure for the following reasons, some of which replicate those leading to the above conclusion that FOIPPA has no application to the Record: (a) (b) The LERB receives and considers the entire Record in hearing the appeal from the Chief s decision, rather than just the portions of it upon which he relied or upon which the parties wish to rely in making their submissions; this obligation makes the Record similar to evidence given at a civil trial, both oral and in exhibit form, rather than disclosure made in advance of that trial; A LERB appeal is a second-step procedure, consisting of a review of an initial adjudication on a set of facts while a civil trial results in an initial adjudication, as observed in Newton at para 64: 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... The [Police] Act does not contemplate the Board becoming a tribunal of first instance... The Record here is thus more analogous to the Record considered by the Court of Queen s Bench on an application for judicial review or placed before the Court of Appeal on a statutory appeal, both of which become publicly available upon filing with the court, than to pre-trial disclosure; (c) There is a public interest present in allowing wide access to the evidence considered by both the Chief and the LERB in discharge of their duties under the Police Act, as reflected in the requirement in s 20(1)(l) of the Police Act that LERB hearings be conducted in public. As noted by Justice Slatter at para 74 of Newton: Total strangers can complain about any police conduct, demonstrating that a high value is placed on the public interest in policing...
Page: 11 By comparison, there is limited public interest in the evidence led at civil trials between private parties yet there is almost unlimited public access to that evidence; (d) (e) (f) Where the LERB conducts an oral hearing to receive evidence which was not before the Chief in making his initial adjudication, a member of the public, including the media, attending the hearing would need access to the Record to understand the full evidentiary landscape, to avoid being left with an incomplete impression created by the new oral evidence alone; As noted above, where an LERB decision is appealed to the Court of Appeal, the parties may file the entire contents of the Record as evidence relevant to the appeal. The Record thus becomes publicly available. While noting that it is not in the public interest to create a situation where appeals are filed only as a means to achieve the ability to use evidence found in a Record, the fact that the evidence may ultimately become publicly available in this fashion in any event supports the conclusion that it should be publicly available at this earlier stage; and, Public safety concerns and third party/police officer privacy and safety concerns which might arise from allowing members of the public to use information contained in a Record for a collateral purpose can be addressed by seeking an order for severance or sealing of the implicated portions of a Record, pursuant to the thoughtful process outlined by the LERB at para 65 of its decision. Indeed, an interested party may apply for a direction that certain documents be excluded from a Record prior to its preparation and provision to the LERB. [49] For these reasons I conclude that the LERB was not unreasonable in determining that Mr. Engel could use material found in the Record to support his own independent complaint to the Chief because his implied quasi-undertaking of confidentiality with respect to information in the Record was exhausted at the close of the hearing before it. (3) Did the LERB err in law in determining that the Record would become available to the public at the conclusion of all its hearings in the future, when that issue was not properly before it? [50] The Chief complains that in the decision under appeal the LERB made a wider decision than was called for in relation to the issue before it. That issue was defined in a letter to the parties from D. Filice Associate Secretary to the LERB, dated October 20, 2011 as follows: The Appellant [Ms. Carlson via Mr. Engel] is making an application either to be relieved from the implied undertaking on the disclosure contained in the record or a declaration that there is no implied undertaking present herein in order to be able to make a complaint against [a Staff sergeant with the EPS]. [51] In the decision under appeal, however, the LERB arguably appears to make a wider determination, in paras 65-66 of its decision, to the effect that at the conclusion of all future appeals, not simply this one, the Record will become publicly available. The Chief argues that Mr.
Page: 12 Engel did not seek such a ruling, but only a ruling in relation to this case, and that it was neither necessary for the LERB to make this wider ruling, nor foreseeable that it would do so. [52] The Chief suggests that he was caught by surprise by the wider ruling. He does not suggest what he would have done or argued differently, however, had he realized the LERB was considering making a declaration affecting the use of Records prepared for future appeals. [53] The complaint cannot be that the LERB made a determination as to when the implied quasi-undertaking ceased to operate. It is difficult to see how the Chief could have imagined the LERB would address Mr. Engel s application for relief from that quasi-undertaking without an assessment of how and when it operated, including when it ceased to operate. It is one of the matters the parties could reasonably have been expected to address in the course of their submissions. [54] To the extent that the LERB s decision might apply to future hearings, none of the parties in this appeal addressed the issues of if, when, and how the LERB is bound by its own decisions. We note, however, that the practice of the LERB appears to be to consider its prior decisions in the adjudication of current complaints (as exemplified in the decision under appeal, at para 12, where it takes guidance from its 2006 Decision No. 008-2006). Therefore, even if it had framed its decision regarding the exhaustion of the implied undertakings in the context of this appeal alone, the decision would affect future appeals. [55] Nor did the LERB otherwise grant a remedy wider than that sought by Mr. Engel. It relieved Mr. Engel of the implied quasi-undertaking in relation to the documents he wished to use to support his personal complaint to the EPS, no more. [56] There is no merit to this ground of appeal. Sealing or Redaction Order [57] In his Notice of Appeal, the Chief sought an order directing that some or all of the Record filed with this Court be redacted or sealed. However, the application was not pursued when the appeal was argued. No application to lead fresh evidence was made, so as to provide the necessary supporting evidence for the granting of such an order. Counsel for the Chief abandoned the application in her oral argument. [58] I leave open for determination in the future the issue of whether the LERB can issue a publication ban or sealing order on its own motion i.e. where no party has applied for such an order, yet the evidence suggests it should be made. [59] It may be that applications to seal or ban publication of contents of a Record will be brought in future cases. I will therefore reiterate the types of supporting evidence it would be helpful for an applicant to offer in such a situation, whether it is labelled an application for a sealing order or for a publication ban. Such an order is not to be had for the asking; the applicant must establish why the sealing order is necessary to prevent a serious risk to the proper
Page: 13 administration of justice and why reasonable alternative measures could not prevent that risk from arising. The applicant must address how or why the beneficial effects of the order outweigh the deleterious effects on the rights and interests of the public, all as is described in more detail in the interlocutory decision on this subject at 2013 ABCA 236, 553 AR 389. Conclusion [60] The appeal is dismissed. Appeal heard on April 29, 2014 Reasons filed at Edmonton, Alberta this 25th day of August, 2014 Bielby J.A. I concur: McDonald J.A. I concur: Sulyma J.
Page: 14 Appearances: K.M. Hammond for the Appellant S.D. McDonough for the Respondent Law Enforcement Review Board T.M. Engel for the Respondent Sheryle Carlson P. Nugent for the Intervener