The Office of the Information and Privacy Commissioner issued a notice to produce records to a university, demanding that it provide copies of all documents that fell under the complainant’s request, including those over which the university asserted solicitor-client privilege. Authority to do so was said to be provided by s. 56(3) of FOIPPA. The Court of Appeal held that the principles of strict interpretation needed to be applied to s. 56(3), and upon that application, it was clear that the provision did not confer authority upon the Commissioner to require disclosure of records from a public body that were subject to solicitor-client privilege. The language of the provision was not clear or explicit enough to warrant an override of privilege, which is essential to our legal system and the administration of justice.

26. May 2015 0
Administrative law – Decisions of administrative tribunals – Privacy commissioner – Universities – Freedom of information and protection of privacy – Disclosure of records – Public body – Solicitor-client privilege – Judicial review – Compliance with legislation – Statutory interpretation – Standard of review – Correctness University of Calgary v. J.R., [2015] A.J. No. 348, ...

In overturning the Court of Appeal’s decision, the Supreme Court of Canada clarified that where a court reviews a decision of a specialized administrative tribunal (such as a human rights tribunal), the standard of review must be determined on the basis of administrative law principles, whether the review is conducted in the context of an application for judicial review or of a statutory appeal. The SCC also determined that while the correctness standard of review applied to one aspect of the tribunal’s decision (the scope of the state’s duty of religious neutrality), the reasonableness standard applied to the other aspects of the decision, including whether or not the complainant had been discriminated against. In her concurring judgment, Abella J. was concerned with the majority’s use of different standards of review for different aspects of the tribunal’s decision. She said that extricating the question of the state’s duty of religious neutrality from the other aspects of the tribunal’s decision regarding the discrimination analysis directly conflicts with the jurisprudence and creates another confusing caveat to the Dunsmuir framework.

26. May 2015 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Municipalities – By-laws – Human Rights – Discrimination – Religion – Charter of Rights and Freedoms – Judicial review – Jurisdiction – Standard of review – Correctness – Reasonableness simpliciter – Remedies – Damages Mouvement laïque québécois v. Saguenay (City), [2015] S.C.J. No. ...

Lawyer was suspended after not satisfying Law Society’s requirement to complete 12 CPD hours per year. Lawyer challenged the validity of the CPD rules on the basis that the Law Society did not have authority to enact the mandatory rules, and the rules violate the rules of natural justice because they give the Law Society the authority to enact a suspension without a hearing or right of appeal. The court was satisfied that the powers set out in the Legal Profession Act are broad enough to allow for the creation of a mandatory CPD program, and held that the rules, with the penalty of a suspension, are procedurally proportionate to the gravity of the non-compliance offence. The court found that a disciplinary hearing process, such as the kind that accompanies allegations of professional misconduct, is not necessary in CPD non-compliance matters, and that the lack of a hearing and right of appeal do not constitute breaches of the procedural fairness rules.

24. February 2015 0
Administrative law – Decisions of administrative tribunals – Law Societies – Powers under legislation – Self-governing professions – Rules and by-laws – Barristers and solicitors – Training requirements – Continuing Professional Development – Disciplinary proceedings – Penalties – Public interest – Judicial review – Procedural requirements and fairness – Natural justice Green v. Law Society ...

Lawyer found guilty of conduct unbecoming a lawyer after he lost touch with his pro bono client and was unable to reach him when the plaintiff brought a summary judgment motion against him four years after an attempted mediation. The lawyer appealed the Law Society’s decision, but his appeal was dismissed.

24. February 2015 0
Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Professional misconduct – Judicial review – Standard of review – Reasonableness simpliciter – Evidence Hesje v. Law Society of Saskatchewan, [2015] S.J. No. 2, 2015 SKCA 2, Saskatchewan Court of Appeal, January 8, 2015, R.K. Ottenbreit, N.W. Caldwell and M.J. ...

Following an application made by a passenger who had an allergic reaction to a dog on an airplane, the Canadian Transportation Agency ordered Air Canada to develop and implement specific policies and procedures necessary to accommodate persons with dog allergies who are traveling on its airplanes. Air Canada appealed the Agency’s decision on the basis that it was denied procedural fairness. The court found that Air Canada was denied procedural fairness in that the Agency refused to consider its submissions on a number of crucial issues. The matter was returned to the Agency for reconsideration.

24. February 2015 0
Administrative law – Decisions of administrative tribunals – Canadian Transportation Agency – Human rights complaints – Disability – Duty to accommodate – Policies – Judicial review – Procedural requirements and fairness – Evidence Air Canada v. Greenglass, [2014] F.C.J. No. 1286, 2014 FCA 288, Federal Court of Appeal, December 9, 2014, Nadon, Gauthier and Scott ...

The New Brunswick Court of Queen’s Bench dismissed the applicant physician’s judicial review application regarding a preliminary decision made by the College of Physicians and Surgeons. The Court declined to exercise its supervisory jurisdiction over the matter since it found that the complainant had adequate alternative remedies available to him under the Medical Act and failed to exhaust those before seeking judicial review. In respect of an evidentiary issue that was raised at the outset, the Court ruled that letters of complaint from patients underlying the proceedings between the College and the physician were inadmissible in the judicial review record because they were protected by privacy and privilege as per section 71.2(2) of the Medical Act.

25. November 2014 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Judicial review – Procedural requirements and fairness – Natural justice – Compliance with legislation – Evidence – admissibility – Remedies – Alternative remedies Cockeram v. College of Physicians ...

The BC Court of Appeal dismissed the complainant’s appeal from virtually every aspect of the Human Rights Tribunal’s decision regarding his complaint against the Law Society, including the Tribunal’s award of costs to the Law Society after the complainant made serious and unfounded accusations against it throughout the proceedings, the Tribunal’s award for past wage loss and failure to make an award for future wage loss, and the Tribunal’s reliance on two cases regarding causation that were not cited by either party during submissions, one of which was not available at the time of the hearing

25. November 2014 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights – Discrimination – Law Societies – Barristers and solicitors – Professional governance and discipline –  Admission to profession – Competence – Judicial review – Natural justice – Remedies – Damages Gichuru v. Law Society of British Columbia, [2014] B.C.J. No. 2552, ...

Law Society Hearing Panel concluded that appellant lawyer could not be found to have committed fraud in “flip transactions” in absence of evidence from other persons involved in the allegedly fraudulent transactions. The Appeal Panel found that the Hearing Panel made errors of law in respect of what is required to prove fraud, and ordered a new hearing. On review, the court determined that the standard of review was reasonableness, since the decision regarding the application of the test for fraud to the facts is a question of mixed fact and law. The court ruled that the Appeal Panel’s decision was reasonable, and dismissed the appellant’s appeal.

23. September 2014 0
Administrative law – Decisions of administrative tribunals – Law Societies – Barristers and solicitors – Professional misconduct or conduct unbecoming – Competence – Fraudulent transactions – Disciplinary proceedings – Penalties – Judicial review – Evidence – Standard of review – Reasonableness simpliciter Law Society of Upper Canada v. Talarico, [2014] O.J. No. 3617, 2014 ONSC ...

BC Court of Appeal permitted the respondent leave to appeal a commercial arbitrator’s decision. The Arbitration Act only allows leave to appeal on questions of law, and the court determined that the question raised by the respondent was one of law, since it related to contractual interpretation and whether something was or reasonably ought to have been within the common knowledge of the parties at the time of the execution of the contract. The Supreme Court of Canada ruled that contractual interpretation issues involving mixed fact and law, such as whether something was or reasonably ought to have been within the common knowledge of the parties at the time of the execution of the contract, are properly questions of fact. Accordingly, as the respondent’s appeal was based on a question of fact and not law, it should not have been granted leave. The appellant’s appeal was allowed.

23. September 2014 0
Administrative law – Decisions of administrative tribunals – Arbitration Board – Arbitration and award – Judicial review – Appeals – Leave to appeal – Test – Compliance with legislation – Jurisdiction of court – Standard of review – Reasonableness simpliciter Sattva Capital Corp. v. Creston Moly Corp., [2014] S.C.J. No. 53, 2014 SCC 53, Supreme ...