[1]               The appellant, who was a sworn member of the Edmonton Police Service (“EPS”) made a criminal complaint against her supervisor, for an incident that occurred out of the jurisdiction, on a work-related trip. An officer in the other the jurisdiction investigated the allegations (“primary investigator”). The EPS assigned an officer to be a liaison person for the primary investigation (“liaison officer”). In February 2018, the appellant filed a complaint against the liaison officer, alleging, among other things, that the officer failed to keep her informed of the status of the external investigation and breached her privacy, by providing text messages between the subject officer in the criminal complaint and herself, to the primary investigator.[2]

[2]               During the Professional Standard’s Branch (“PSB“) investigation into the complaint against the liaison officer, the respondent conducted an audio and video recorded interview of the appellant on May 23, 2018.[3] During the interview the appellant made verbal statements indicating she was withdrawing her complaint against the liaison officer. She also made several statements about contemplating suicide and harming herself and another individual. The respondent left the room several times, allegedly to inquire about the process for formally withdrawing a complaint. The EPS Police and Crisis Response Team (“PACT”) was contacted. They arrived to assess the appellant’s well-being and the interview was terminated. No complaint withdrawal form was signed.

[3]               On December 17, 2018, the appellant sent a letter of concerns regarding the investigation into the criminal and PSB matters. It contained allegations against the respondent, including:

[4]               On April 11, 2019, the appellant sent the EPS a letter making a formal complaint against the respondent, based on the allegations contained in the December 17, 2018 letter. She alleged deceit, insubordination and discreditable conduct.[5]

[5]               On July 23, 2020, upon receiving the audio video recording and transcript of the PSB interview, the appellant stated in a further letter to the EPS that, “Detective Smith departed
from his role as an objective investigator starting at page 32: line 4.”[6] No further details were provided in the letter.

[6]               The chief dismissed the complaint against this respondent by letter dated October 2, 2020. He stated that no reasonable person could find that the respondent conducted the interview with a lack of objectivity, that he pressured the appellant, that he interrogated her, or that he otherwise conducted the interview in an inappropriate manner. He further concluded that the delays in the interview were done on the instructions from the respondent’s supervisor out of concern for the appellant’s well-being, consistent with his duty to preserve life and protect public safety. The chief concluded that the audio video recorded withdrawal of the complaint was an adequate withdrawal of the complaint. He concluded there was insufficient evidence that could lead a reasonable and properly instructed person to convict the respondent on any of the allegations at a disciplinary hearing.[7]

[7]               The appellant filed an appeal with the board on November 5, 2020 with respect to the first allegation only, discreditable conduct. The ground of appeal before the board was that the chief’s finding that the interview was objective, was not pressuring, and not conducted like an interrogation, was unreasonable. Likewise, that his opinion that no reasonable person could find that the respondent conducted an interview with a lack of objectivity, that he pressured the appellant, that he interrogated her, or that he otherwise conducted the interview in an inappropriate manner, was unreasonable.[8]

[8]               The respondent applied to the board to strike the appeal pursuant to section 19.2(1)(a) of the Police Act (“Act”) on the basis that it was frivolous and vexatious and an abuse of process. The appellant and respondent filed submissions on the application.

[9]               The issue we must decide is whether the appeal should be dismissed as frivolous and vexatious, made in bad faith or an abuse of process.

[10]           In support of the application to dismiss the appeal, the respondent highlighted that in the PSB interview, the appellant stated, “In all honesty, given what you’ve said, I mean, I will consent to closing my complain [sic] on”… the liaison officer. The respondent submitted that there had been no discussion prior to the statement about the appellant withdrawing her complaint.[9]

[11]           The respondent submitted that as a result, the appeal was on its face, frivolous and vexatious and plainly without merit. The respondent stated that the interview was gentle, wide ranging, that the respondent made efforts to provide the appellant with information, that the applicant was given the opportunity to speak, ask questions and set out her evidence, that there was no evidence the respondent interrogated the appellant or that the interview was not aggressive or challenging.[10]

[12]           The respondent submitted that the appeal was an abuse of process, as it could bring the administration of justice into disrepute, would undermine the chief’s screening function if allowed to proceed and that the board has the authority to control any abuse of process.[11]

[13]           The appellant submitted that the interview went on for three hours, during which time the respondent tried to convince the appellant that the liaison officer had done nothing wrong, and as to why she was innocent. She submitted that “It was by gentle persuasion or pressure, the same technique used by police detectives to extract confessions from suspects”. The appellant was crying, choked up and tearful at times during the interview.[12]

[14]           The appellant submitted that the dialogue in the interview shifted from the appellant giving her pure version of the complaint to the respondent providing an explanation of how things worked in a complex investigation, in an effort to get her to drop her complaint, and in particular where he stated:

[15]           The appellant submitted that 23 pages later in the transcript, the appellant stated she was closing her complaint against the liaison officer. The appellant submitted that the respondent deliberately set out to persuade her to drop her complaint, knowing he was dealing with a vulnerable victim of sexual assault. The appellant was severely emotionally upset and stressed in the meeting and obviously depressed.[14]

[16]           The Act requires the board to screen all appeals that come before it. Section 19.2(1)(a) of the Act states that prior to scheduling a hearing of an appeal, the board may “dismiss the matter if in the opinion of the board the appeal is frivolous, vexatious or made in bad faith”.

[17]           The board’s decision in Addow sets out the definitions for the terms, “frivolous” or “vexatious”. The board stated in that decision:

[18]           The board’s jurisdiction to dismiss a complaint as ‘frivolous and vexatious’ under section 19.2(1)(a) of the Act is not a question of deciding if the chief’s decision was reasonable or unreasonable. Instead, it is an exercise in considering whether there is some evidence in support of the appeal, in other words, any threshold basis upon which the appellant can put forward an argument, or conversely whether it is bound to fail because it lacks any substance, is palpably bad, or lacks an air of reality.

[19]           The board has stated that appeals will not lightly be dismissed under section 19.2 (1)(a). However, in our view, there is no threshold basis upon which the appellant could make arguments that have any chance of success on appeal with respect to the chief’s disposition of the allegation.

[20]           The evidence in the record before the chief was clear that the appellant stated without prompting that she wished to withdraw her complaint and repeated words to that effect during the interview.

[21]           The board notes that the wording of the complaint, namely that the interview sounded more like an ‘interrogation’, and that the appellant felt very pressured and upset and agreed, in some way to drop her complaint, contrasts with the appellant’s written submission that:

[22]           In the board’s view, in light of our reading of the interview and the appellant’s acknowledgment above, the interview was reasonably and fairly characterized by the chief when he concluded as follows:

[23]           In these circumstances the allegation that the interview was “pressuring” or like an “interrogation” lacks an air of reality.

[24]           We observe next that the complaint letter alleged the respondent stated during the interview that the PSB had accessed text messages, and they had a duty to provide them to the liaison officer as potential evidence to refute the appellant’s story [regarding her former supervisor] and that the liaison officer had a duty to provide them to the primary investigator. The evidence before the chief did not support this allegation. To the contrary, the transcript evidence before the chief was that the respondent advised the appellant that there were no such text messages and no text messages were provided by the liaison officer to the primary investigator.[18] In the board’s view, this strongly indicates that the appellant’s recall of the evidence and interview did not support this allegation in the complaint before the chief, and strongly suggests that the appeal has no chance of success.

[25]           With respect to the failure to keep the appellant informed, the respondent did provide his understanding of the investigation process, whereby he described how the liaison officer had a ‘liaison role’ and had to defer to the primary investigator’s authority.[19] However, we note the appellant’s submission that it was correct to categorize this as “efforts to provide information to the appellant and explain a complex investigation” which detracts from any argument that this amounted to pressure on the appellant and lends it an air of unreality.[20]

[26]           In the board’s view, the filing of complaint upon complaint arising from the same matter may render an appeal frivolous and vexatious. In this case, after the original complaint was made about her supervisor, the appellant filed a complaint against the officer who was the liaison for the criminal investigation, then filed a complaint against the respondent, the PSB investigator who interviewed her regarding her complaint against the liaison officer. In addition, there are ongoing proceedings that recently came before the board related to whether the appellant’s consent to withdraw her complaint against the liaison officer was properly obtained. Accordingly, the subject matter overlaps with this appeal. The multiple proceedings strongly suggest a vexatious proceeding.[21]

[27]           The sole ground of appeal, that the chief’s finding that “The interview that “Det. Smith conducted of you was not objective, was pressuring, and felt like and interrogation” was unreasonable, cannot not succeed. Likewise, that his statement that “no reasonable person could find that Det. Smith conducted an interview with a lack of objectivity, that he pressured [WX], that he interrogated [WX], or that he otherwise conducted the interview in an inappropriate manner” was unreasonable, is bound to fail.[22]

[28]           We do not find that this appeal was brought in bad faith as we do not find that the record before the chief clearly supports an improper motive on behalf of the appellant, or an abuse of process. We do conclude that the appeal of the dismissal of the discreditable conduct allegation contained no credible basis upon which to advance an argument and is therefore is frivolous and vexatious pursuant to section 19.2(1)(a) of the Act.

[29]           For the reasons given above, the appeal is dismissed.