Carscallen litigators Michael B. Niven, Q.C. and Michael Custer recently won a high profile judicial review action in the Court of King’s Bench of Alberta for their clients, Rocky View County (“RVC”) Councillors Crystal Kissel, Samanntha Wright and Kevin Hanson (the “Applicants”) against RVC and Al Hoggan, RVC’s Chief Administrative Officer (“CAO”)1Kissel v Rocky View (County), 2020 ABQB 406 [Kissel]..
The Applicants were disciplined last year in a June 11, 2019 decision by the RVC Council (“Council’) finding the Applicants breached the RVC Code of Conduct and imposing sanctions on the Applicants because of the Applicants’ actions in: writing a letter to the editor in a local media outlet criticizing the actions of their colleagues on Council; Councillor Kissel’s use of insulting language concerning the CAO in a voicemail; and the Applicants releasing a privileged RVC legal opinion to their lawyer in order to obtain legal advice.
COUNCIL’S APPOINTMENT OF THE INVESTIGATOR VIOLATES PROCEDURAL FAIRNESS RIGHTS
In response to the impugned actions of the Applicants, Council appointed a law firm as an official investigator (“Investigator”) to consider the complaints against the Applicants. The law firm provided a legal opinion to Council as to whether the Applicants breached the Code of Conduct.
The law firm appointed as Investigator by Council had previously done work for RVC, and the extent and timing of this work was unclear. The Applicants objected to the law firm’s participation as Investigator in the complaint process because the law firm answered to Council in its investigatory capacity and to the RVC administration as its lawyers, placing the Investigator in an untenable position, seriously compromising its independence as Investigator, and raising a reasonable apprehension of bias. The Applicants argued this reasonable apprehension of bias violated their procedural fairness rights during the complaint process.
In Reasons for Judgment (“Reasons”) released by the Honourable Mr. Justice J.T. Eamon, the Court agreed with the Applicants’ arguments on procedural fairness and the reasonable apprehension of bias, and set aside the sanctions imposed on the Applicants by Council for a failure to adequately address the issue of a reasonable apprehension of bias.
In his Reasons, Justice Eamon held that “the Applicants were entitled to an investigator who was free from actual and reasonable apprehension of bias”.2Kissel at para 159. Although the Court declined to make a finding of reasonable apprehension of bias for the complaint process, it found the Investigator’s process was flawed for failing to adequately address the apprehension of bias allegation.
CAO’S ACTIONS NOT REVIEWABLE BY THE COURT
On the issue of the CAO’s decision to impose communication restrictions on the Applicants, the Court found the CAO’s email to and corresponding communication restrictions on the Applicants were not of a sufficiently public character to be subject to judicial review. The Court further found it was neither necessary nor desirable for the Court to generally assume the direct role of supervising the CAO in the present matter, because Council has a supervisory role.
NO BAD FAITH
The Court also found that the evidence as a whole does not support a finding of bad faith on the part of Council in this matter.
DISPROPORTIONALITY OF THE SANCTIONS IMPOSED BY COUNCIL
In examining each of the sanctions imposed on the Applicants by Council (and notwithstanding the Court’s setting aside of the sanctions based on the reasonable apprehension of bias), the Court also found that certain of the sanctions imposed on the Applicants by Council were grossly disproportionate and should be set aside. In his review, Justice Eamon held that a proportionality requirement is inherent in the RVC Code of Conduct’s requirement that sanctions be reasonable and appropriate, and that the proportionality requirement is an additional constraint on Council’s decision making when imposing sanctions under the Code of Conduct.3Kissel at para 234.
Sanctions reducing Applicants’ compensation and removal from duties
Specifically, the Court found the discretionary terms of the sanctions removing the Applicants from some of their duties, and reducing their compensation, to be “grossly disproportionate to the misconduct and thus overwhelming”.4Kissel at para 256. The Court found the discretionary terms of these sanctions were arbitrary and indefinite,5Kissel at para 253. and that there was no apparent rational basis for this measure.
Sanctions barring Applicants’ communication with RVC staff
The Court further found that there was no rational connection for the sanctions barring Applicants Hanson and Wright against communicating with RVC staff for participating in the letter to the editor, as “[n]o decision-maker acting reasonably could justify imposing this sanction in response to an incident of disrespecting Council colleagues in the news media”.6Kissel at para 246.
On the issue of the sanctions imposed on Applicant Kissel barring her from communicating with other RVC staff due to her use of derogatory language about the CAO in a single voicemail, the Court found such sanction to be “grossly disproportionate to Councillor Kissel’s misconduct in leaving the voicemail, and thus overwhelming. No reasonable body would have imposed such a harsh sanction.”7Kissel at para 260.
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- 1Kissel v Rocky View (County), 2020 ABQB 406 [Kissel].
- 2Kissel at para 159.
- 3Kissel at para 234.
- 4Kissel at para 256.
- 5Kissel at para 253.
- 6Kissel at para 246.
- 7Kissel at para 260.
