Administrative law – Public inquiry – Commision of Inquiry – Commissioner – Abuse of process – Judicial review – Reasonable apprehension of bias
Taser International, Inc. v. British Columbia (Commissioner), 2010 B.C.J. No. 802, 2010 BCSC 623, British Columbia Supreme Court, May 3, 2010, R.J. Sewell J.
In October 2007, Mr. Robert Dziekanski died at the Vancouver Airport during a confrontation with members of the Royal Canadian Mounted Police. In the confrontation, members of the RCMP struck Mr. Dziekanski several times with a conducted energy weapon commonly called a Taser and manufactured by the petitioner, Taser International Inc. Pursuant to the Public Inquiry Act, S.B.C. 2007, c. 9, the provincial government established a commission to make recommendations regarding the appropriate use of conducted energy weapons in the province. Thomas R. Braidwood, Q.C. was appointed Commissioner. Dr. Keith Chambers oversaw the work of the Commission’s medical and scientific researchers, and Mr. Arthur Vertlieb, Q.C., acted as counsel for the Commission.
The petitioner sought judicial review of a report authored by the Commission entitled “Restoring Public Confidence: Restricting the Use of Conducted Energy Weapons in British Columbia”, issued on June 18, 2009. More specifically, the petitioner sought to quash the findings of the Commissioner with respect to the risks associated with conducted energy weapon use, and sought declarations that both Dr. Chambers and Mr. Vertlieb did not act honestly, in good faith, and exercise the care and skill of a reasonable person of similar education and experience in carrying out their roles. The petitioner sought a further declaration that Dr. Chambers and Mr. Vertlieb were under a reasonable apprehension of bias.
The respondent Attorney General of British Columbia sought to strike the petition pursuant to Rule 19(24) of the Rules of Court on the basis that study commissions do nothing more than make policy recommendations and are not subject to judicial review. The court noted that to succeed on a Rule 19(24) application, the Attorney General must demonstrate that the petitioner has no right to seek judicial review of the report even if the allegations set out in the petition are established. Citing Martineau v. Matsqui Institution,  1 S.C.R. 602, the Court held that an advisory commission may be under a legal duty to act fairly with respect to those whose interests may be adversely affected by any report authored by that commission. Accordingly, the Court noted that the Commission could have important commercial implications for the petitioner and was not prepared to hold that it was plain and obvious that the petition would fail. The Attorney General’s application to strike the petition was dismissed.
The respondents Dr. Chambers and Mr. Vertlieb applied to strike the declarations sought as against them. The court noted that these declarations would, if granted, have a profoundly detrimental effect on professional standing and reputation and that the petition did not identify any conduct that would justify granting the two declarations sought. Moreover, the court noted that in the absence of an allegation that the Commissioner was biased, any bias on the part of Commission staff was irrelevant. Accordingly, the court held that the declarations as against Dr. Chambers and Mr. Vertlieb constituted an abuse of process and that the allegations made were unnecessary, scandalous, an vexatious, and ought to be struck pursuant to Rule 19(24).
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