C-122 - Conduct Board

The Respondent and his neighbour had a dispute over the construction of a retaining wall between their properties. The Respondent alleged that he built the wall, and that they had agreed to split the cost of the wall so that the Respondent could have control over the wall’s appearance and the neighbour would lessen his required expenses. When the wall was completed, the neighbour refused to pay and denied the existence of the agreement. The Respondent then placed a lien on the neighbour’s property for an amount allegedly equal to what the neighbour owed. The Respondent and his neighbour ultimately ended up in court to resolve the dispute. In the court decision, the judge made a number of findings against the Respondent’s position and took issue with the Respondent’s credibility. Eventually, the contents of the court’s decision were brought to the Force’s attention resulting in a Code of Conduct investigation. The investigation led to four alleged contraventions of the Code of Conduct being referred to a Conduct Board. The Board, after the hearing, found none of the four allegations established.

The Appellant, who was the Conduct Authority before the Board, appealed the Board’s Decision, arguing that the Decision was procedurally unfair because the Board elected not to hear in-person testimony. Instead, it elected to proceed by written submissions. The Appellant submitted that the circumstances of the dispute required an oral hearing and for cross-examinations of the witnesses. The Appellant also argued that the decision was clearly unreasonable because the Board should not have allowed the Respondent to relitigate the court’s findings on credibility. Finally, the Appellant argued that the overall findings were not based on the evidence and amounted to a clearly unreasonable decision. 

The ERC found that procedural fairness was respected in this matter. The Board elected to proceed by a written hearing based on the evidence which provided a detailed breakdown of the events that form the bases of the allegations. Whatever inconsistencies there existed between the parties could be resolved by written submissions and it was within the Board’s discretion to decide how to proceed. As well, the ERC found the Decision was not clearly unreasonable. The Board provided a rational and tenable line of analysis on its findings related to the re-litigation decision and the findings of fact. The Appellant’s disagreements with those findings do not demonstrate that the Decision was clearly unreasonable. 

The ERC recommends that the appeal be dismissed.