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 ...

The Police Act states that a complaint matter can be reopened for further investigation within 30 days of its dismissal if it is in the public interest to do so, or at any time if new information becomes available that requires investigation. The Commissioner reopened a complaint more than 30 days after it had been summarily dismissed citing the public interest provision as the basis. The body of the order noted that new information had been received, and suggested this was the reason for reopening the matter. The Chambers judge characterized the failure to cite the proper provision as a technicality and upheld the order. The Court of Appeal quashed the order, holding that the defect went to the heart of the Commissioner’s jurisdiction, and the court had no authority to cure a defective order made under the Act.

24. June 2014 0
Administrative law – Decisions of administrative tribunals – Police Commission – Investigations – Disciplinary proceedings – Public interest – Judicial review – Jurisdiction – Compliance with legislation Vancouver (City) Police Department v. British Columbia (Police Complaint Commissioner), [2014] B.C.J. No. 908, 2014 BCCA 181, British Columbia Court of Appeal, May 12, 2014, N.J. Garson, A.W. ...

The Court quashed part of the Health Professions Review Board’s decision to return a complaint matter to the Inquiry Committee, including all of the additional documents submitted by the complainant as new evidence. An adjudicator previously assigned to the case at the Review Board had already decided that only 5 of the 9 additional documents were admissible. Thus, the part of the Review Board’s decision which directed the Inquiry Committee to consider all 9 of the additional documents was quashed. The petitioner had also made an application for the use of pseudonyms in the case, and the sealing of the file. The Court dismissed the application because the petition did not involve any extraordinarily sensitive personal information and disclosure would not undermine the purpose of the petition.

22. April 2014 0
Administrative law – Decisions of administrative tribunals – Health Professions Review Board – Physicians and Surgeons – Competence – Judicial review – Jurisdiction of tribunal – Procedural requirements and fairness – Evidence – Fresh evidence – Admissibility – Publication ban JC v. Health Professions Review Board, [2014] B.C.J. No. 404, 2014 BCSC 372, British Columbia ...

The respondent Institute of Chartered Accountants cross-appealed the Discipline Tribunal’s finding of not guilty on the third of three charges of misconduct. The Tribunal had applied the Kienapple principle, and held that charges 1 and 3 were not sufficiently distinct in order to justify a finding of guilt on both. The Appeal Tribunal allowed the cross-appeal, and at the Court of Appeal level, the Court found that the Appeal Tribunal properly applied the Kineapple principle, and agreed that the elements which go to guilt in charges 1 and 3 differed, notwithstanding the fact that they relate to a common act.

22. April 2014 0
Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Penalties and suspensions – Evidence – Kienapple rule Danyluik v. Alberta (Institute of Chartered Accountants, Complaints Inquiry Committee), [2014] A.J. No. 186, 2014 ABCA 78, Alberta Court of Appeal, February 26, 2014, P.W.L. Martin and B.K. O’Ferrall ...

The appellant engineer argued that his appeal of the Discipline Committee’s professional misconduct findings should be an appeal de novo, and not an appeal on the record. The Council of the Association determined the appeal would be based on the record, and the judicial review application judge upheld that decision. The Court of Appeal dismissed the appellant’s interlocutory appeal of the application judge’s ruling because it did not meet the criteria of “exceptional circumstances” to justify the Court’s interlocutory intervention in the ongoing administrative process.

22. April 2014 0
Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Rules and by-laws – Hearing de novo – Judicial review – Appeals Dorn v. Assn. of Professional Engineers and Geoscientists of Manitoba, [2014] M.J. No. 63, 2014 MBCA 25, Manitoba Court of Appeal, March 3, 2014, H.C. ...

The Divisional Court of Ontario permitted an application for judicial review by a student who had been expelled by the headmaster of a private school for smoking marijuana. The Court of Appeal held that such a decision was not within the jurisdiction of the court to review for two reasons: one, the nexus between the school’s enabling Act and the expulsion decision was not specific enough to make the decision an exercise of statutory power; and two, even if there was a nexus, the decision could not be reviewed by public law or subject to a public law remedy because the decision maker was a private school created by private statute, and its disciplinary decisions are regulated by contracts between the school and the students’ parents.

28. January 2014 0
Administrative law – Decisions of administrative tribunals – School boards – Powers and duties – Statutory provisions – Schools – Students – Code of conduct – Expulsion of students – Judicial review – Jurisdiction – Compliance with legislation Setia v. Appleby College, [2013] O.J. No. 5736, 2013 ONCA 753, Ontario Court of Appeal, December 13, ...

The Law Enforcement Review Board of Alberta overturned a Presiding Officer’s decision at a disciplinary hearing to terminate the employment of a constable who had admitted to 8 counts of misconduct. The Board held that the Presiding Officer’s failure to give weight to the impact of the constable’s depression on his misconduct, on which a psychologist gave expert evidence, was unreasonable, and it reinstated the constable’s employment. On appeal, the Court of Appeal held that the Board erred when it failed to properly apply the reasonableness standard to the Presiding Officer’s decision. The Board substituted its own decision for a reasonable decision of the Presiding Officer.

28. January 2014 0
Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Penalties and suspensions – Hearings – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter Camrose (City) Police Service v. MacDonald, [2013] A.J. No. 1333, 2013 ABCA 422, Alberta Court of ...