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 ...

The BC Supreme Court struck down bylaws passed by the College of Pharmacists which prohibited the use of incentive programs in pharmacies. The court found that the College’s decision to pass the bylaws fell outside the range of possible acceptable outcomes, given the competing public interests and the College’s ability to pass bylaws that are narrower in scope to address their reasonable concerns. The bylaws were found to be overbroad and their net effect was found to be harmful to the public interest in obtaining pharmacy services and prescriptions at the lowest price.

23. September 2014 0
Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Professional governance and discipline – Rules and by-laws – Change of by-laws – Public interest – Incentive programs – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter Sobeys West Inc. v. College of Pharmacists ...

The plaintiff, a mother of two children, was awarded damages for lost wages and pain and suffering, as well as $20,000 in special compensation by the Human Rights Tribunal after the CNR “recklessly” refused to give her any useful information about how long she would be staying or about housing arrangements following its temporary transfer of her to another community to cover a conductor shortage. She made out a prima facie case of discrimination on the basis of family status since she demonstrated that (i) she was responsible for the care of two children, (ii) a temporary move would disrupt her children’s care, and (iii) CNR did not give her any information about how long she would be staying in Vancouver or about housing arrangements, despite her requests. CNR failed to accommodate her and her need to arrange for childcare to the point of undue hardship by refusing to provide her with the information required to make the arrangements.

24. June 2014 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Duty to accommodate Canadian National Railway Co. v. Seeley, [2014] F.C.J. No. 452, 2014 FCA 111, Federal Court of Appeal, May 2, 2014, Pelletier, Mainville and Scott JJ.A. In 2010, the Human Rights Tribunal found that CNR ...

The plaintiff, a Board member of the BCMA, distributed private information from Board meetings to non-Board members. At a subsequent Board meeting, allegations were made against the plaintiff regarding her alleged breach of confidentiality provisions in the Code of Conduct and the matter was passed onto a Code of Conduct committee for investigation. The president of the BCMA then sent a letter out to all members notifying them of the investigation into the alleged breach of the Code. The plaintiff sued the BCMA for defamation on the basis of this letter and other communications. The trial judge and Court of Appeal agreed that the letter was defamatory, but that it was made on an occasion of qualified privilege. The Board had a duty to inform the membership of such an issue.

24. June 2014 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Code of conduct – Defamation – Judicial review – Disclosure – Qualified privilege Wang v. British Columbia Medical Assn., [2014] B.C.J. No. 833, 2014 BCCA 162, British Columbia Court of Appeal, April 30, 2014, I.T. Donald, M.V. ...

The plaintiff’s lawyer had previously represented the defendant Credit Union in small collections matters from 1993-2008. The plaintiff was the CEO of another Credit Union and the lawyer advised both the plaintiff and the other Credit Union with respect to the employment agreement. In 2012, after the plaintiff’s Credit Union had been acquired by the defendant, the lawyer represented him in negotiating his new employment agreement with the defendant. The plaintiff was eventually fired after his previous employer exercised its option to amalgamate with the defendant. The defendant brought a motion to have the lawyer removed as solicitor on record for the plaintiff due to a conflict of interest. The court dismissed the motion on the basis that the amalgamation did not cause the lawyer to be in a conflict of interest against the defendant, and there was no evidence that the lawyer’s previous retainers with the defendant were sufficiently related to the retainer in respect of the wrongful termination action so as to disqualify him from acting for the plaintiff.

24. June 2014 0
Administrative law – Barristers, solicitors, notaries and paralegals – Professional governance and discipline – Solicitor-client privilege – Conflict of interest DeRosa v. Pace Savings & Credit Union Ltd., [2014] O.J. No. 1939, 2014 ONSC 935, Ontario Superior Court of Justice, February 21, 2014, C.J. Brown J. The defendant brought a motion for an order removing ...