Kennebecasis officer facing arbitration hearing loses bid for judicial review
Judge orders Insp. Jeff Porter to pay $5,500 to New Brunswick Police Commission
A suspended senior officer with the Kennebecasis Regional Police Force, who is facing an arbitration hearing for alleged sexual harassment and other Police Act offences involving a female civilian employee he supervised, has lost his bid for a judicial review.
Insp. Jeff Porter "failed to establish any exceptional circumstances that would justify judicial intervention before the administrative process has been completed," Court of Queen's Bench Justice Terrence Morrison ruled Tuesday.
Morrison also ordered Porter to pay $5,500 to the New Brunswick Police Commission for the "significant expense and delay" his application caused.
Porter's lawyer, Jessica Bungay, could not immediately be reached for comment.
The commission's executive director Jennifer Smith declined to comment, citing the ongoing legal proceedings.
Porter's arbitration hearing is now expected to proceed on March 9, she said.
Porter, a 31-year veteran of the force, which covers Rothesay and Quispamsis, has been suspended with pay since June 2016, shortly after the female employee filed a written conduct complaint against him.
An independent investigator hired by the commission found Porter committed 81 breaches of various sections of the provincial Police Act, including sexual harassment, abuse of authority, corrupt practice and discreditable conduct.
None of the allegations have been proven.
Would turn into fact-finding mission
In his application for judicial review, Porter argued the commission did not have jurisdiction to issue the notice of arbitration on Oct. 25, 2018, or to appoint an arbitrator because it hadn't filed notice of the previous settlement conference within the six-month time limit.
He argued the complaint against him dated back to a verbal complaint made by a fellow officer in February 2016, not the written complaint by the employee in June 2016.
Porter asked the court to quash the commission's decision to proceed to arbitration.
He also sought an order that the commission be prohibited from taking any further action against him regarding the conduct complaint "and that no entry shall be made in his service record of discipline or personnel file."
I believe that proceeding with judicial review at this stage risks far greater delay and costs than permitting the arbitration process to proceed.- Terrence Morrison, Court of Queen's Bench justice
But the judge dismissed the application.
"In order to determine the jurisdictional issue this Court would have to embark upon an extensive evidentiary inquiry thereby transforming the judicial review into a fact-finding mission of first instance, which is not the purpose of a court on judicial review," Morrison wrote in his 27-page decision.
"I believe that proceeding with judicial review at this stage risks far greater delay and costs than permitting the arbitration process to proceed to its conclusion," he noted.
On Dec. 2, the day before his application for judicial review was to be heard, Porter filed a motion objecting to portions of various affidavits filed by the former acting executive director of the New Brunswick Police Commission, including one Porter had in his possession "for more than a year without raising any objection".
"One could be forgiven for suspecting that this motion is a veiled attempt at delay," the judge commented.
Porter remains under an order to have no contact with the woman he allegedly sexually harassed.