Pharmacists are not allowed to use customer incentive programs

21. March 2016 0
A bylaw prohibiting pharmacists from using customer incentive programs was struck down on judicial review on the basis of unreasonableness. The College of Pharmacists appealed. The appeal was allowed as the court found that the bylaws conformed to the rationale of the statutory regime. Administrative law – Bylaws – College of Pharmacists – Compliance with ...

The community association successfully applied for judicial review of a decision by the City of Vancouver and Development Permit Board approving a rezoning bylaw and issuing a development permit for construction of a 36-storey mixed use tower. The court quashed the bylaw and development permit, and directed new hearings, finding that the public hearing process was flawed. The bylaw and development permit arose out of a negotiation between the city and developer for a land exchange proposal, whereby the parties would swap properties across the street from one another and the developer would renovate its former building to provide the city with affordable housing units and obtain rezoning of the former city building so that it could construct a 36-storey tower. The court found that the procedure adopted by the city was unfairly restrictive and directed new hearings which would permit concerned citizens to address the whole project, including the essence and value of the land exchange to the city and its residents.

24. March 2015 0
Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – By-laws – Change of by-laws – Planning and zoning – Notice and consultation – Hearings – Conduct of hearings – Disclosure of documents – Judicial review – Procedural requirements and fairness – Evidence Community Assn. of New Yaletown v. City of Vancouver, ...

Suppression firefighters employed by the city applied for judicial review of the Human Rights Tribunal of Ontario’s summary dismissal of their complaint of discrimination based on the city’s requirements that suppression firefighters retire at age 60. The tribunal, relying on an earlier decision, found that mandatory retirement at age 60 for suppression firefighters was a bona fide occupational requirement. The tribunal concluded that the mandatory retirement standard was adopted in good faith to protect health and safety. The court dismissed the application for judicial review, noting that the exception the employer might be required to offer in individual accommodation was a narrow one. The applicants brought forward no medical evidence nor did it suggest an alternative testing regime capable of eliciting medical evidence. Thus the procedural duty to accommodate the firefighters was not triggered.

24. March 2015 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Age – Mandatory retirement – Occupational requirement – Duty to accommodate – Judicial review – Standard of review – Reasonableness simpliciter Corrigan v. Mississauga (City), [2015] O.J. No. 435, 2015 ONSC 236, Ontario Superior Court of Justice, ...

The plaintiff was employed by the defendant for nine years as a massage therapy instructor. Following the plaintiff’s return from maternity leave, her hours were unilaterally reduced and her responsibilities and income diminished. In four months, her hours were reduced to zero. The plaintiff successfully brought an action against the defendant for wrongful dismissal. The court also found that the defendant employer had discriminated against the plaintiff on the basis of sex and family status, justifying a $20,000 award for injuries to feelings, dignity and self-respect. In addition, punitive damages of $5,000 was awarded based on lack of forthrightness and bad-faith conduct on the part of the defendant. The total award of $42,700 was reduced to $25,000 to reflect the court’s monetary jurisdiction.

24. March 2015 0
Administrative law – Employment law – Termination of employment – Wrongful dismissal – Human rights complaints – Discrimination – Marital status – Gender – Remedies – Damages Bray v. Canadian College of Massage and Hydrotherapy, [2015] O.J. No. 465, Ontario Superior Court of Justice, January 31, 2015, J.S. Winny Deputy J. The plaintiff was employed ...

The applicant is a staff sergeant of the Royal Canadian Mounted Police (RCMP). After a few attempts to advance his career, he received a letter from the RCMP Commissioner saying that he would not be appointed to any commissioned rank and that he should consider leaving the Force. The staff sergeant applied for judicial review, asking that the Commissioner be directed to reconsider the matter in accordance with the reasons of the Court. The application was allowed, and the Court determined that the Commissioner’s letter was subject to judicial review, as the power to recommend candidates for appointment or promotion was public in nature, and the Commissioner was exercising a public power that could not be shielded from review. Although the Commissioner’s decision attracted only a minimal degree of procedural fairness, even this was not met as there was nothing in the record that suggested the applicant had notice or an opportunity to respond. The Commissioner’s decision was unreasonable. He circumvented the disciplinary process and it was not open for the Commissioner to revisit a former incident and substitute his own judgment for that of statutory adjudication board. The Commissioner’s decision was set aside with a direction requiring the Commissioner to do as much as possible to enable the applicant’s promotion and not withhold consent once a position was available.

23. December 2014 0
Administrative law – Decisions of administrative tribunals – Police Commission – Royal Canadian Mounted Police – Employment law – Appointment – Labour law – Disciplinary grievances – Judicial review – Procedural requirements and fairness – Privilege and immunity – Standard of review – Reasonableness simpliciter – Remedies – Alternative remedies Boogaard v. Canada (Attorney General), ...

The Court declined the Petitioner’s application for a stay of execution against the set-off by the Respondent Ministry of Health against monies allegedly owed by the Petitioner to the Respondent. The Respondent had determined that the Petitioner owed it the sum of $260,000 as a result of an audit by the Ministry of Health, Audit and Investigations Branch, in respect of unsupported or disallowed claims that had been previously paid by the Respondent. The Petitioner filed a petition for judicial review of the decision set out in the Respondent’s final audit report, seeking an interim stay pending the hearing of the petition. As a preliminary matter, the Court noted it had the jurisdiction to issue a stay of execution but declined to do so as the Petitioner had not met the onus of showing it would suffer irreparable harm that could not be compensated in damages if the stay was not granted.

23. December 2014 0
Administrative law – Decisions of administrative tribunals – Ministerial orders – Pharmacists – Billing matters – PharmaCare Enrollment Agreement – Judicial review – Statutory powers – Jurisdiction – Stay of execution – Remedies – Injunctions Northburn Prescriptions Ltd. (c.o.b. Northburn Remedy’s RX) v. British Columbia, [2014] B.C.J. No. 2771, 2014 BCSC 2124, British Columbia Supreme ...

An Applicant sought judicial review of a decision by the Complaints Committee of the Respondent Association of Professional Engineers of Ontario not to refer his complaint to its Discipline Committee. The Applicant further filed a motion for production of all documents related to the investigation of the Applicant’s complaint, the proceedings before the COC, and the decision of the COC. The Court dismissed the application for production, finding that the decision of the COC not to deal with a complaint was an exercise of discretion authorized by statute, falling outside of the definition of a statutory power of decision. Given the nature of the screening out decision, the requirement for producing the record of proceedings as framed by the Applicant was overly broad at this stage in the proceedings.

23. December 2014 0
Administrative law – Decisions of administrative tribunals – Association of Professional Engineers – Engineers – Disciplinary proceedings – Professional misconduct – Investigations – Judicial review – Disclosure of records Harrison v. Assn. of Professional Engineers of Ontario, [2014] O.J. No. 5382, 2014 ONSC 6549, Ontario Superior Court of Justice, November 12, 2014, R. Beaudoin J. The Applicant ...

The appellant appealed a Chambers Judge’s decision denying her application for judicial review, on the ground that the Chambers Judge refused to adjourn the judicial review application in order for her to obtain a transcript of the hearing before the Human Rights Tribunal. The appeal was dismissed. In fact, no application to adjourn was made to the judge. The judge made a finding of fact that the appellant was advised that she could order a transcript and was told how, but she had not done so. Because a transcript of the Tribunal hearing could be obtained, filing an affidavit setting out the alleged procedural fairness issues was unnecessary and inadmissible. In any event, the judge was satisfied based on the Tribunal’s written reasons that the allegations that the hearing had been unfair were unsustainable and having a transcript would not alter the result of the proceedings before him. There was no error of principle.

25. February 2014 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Hearings – Fairness – Appeals – Practice and procedure – Adjournment – Judicial review – Procedural requirements and fairness – Evidence Caster v. Walter F. Evans (1973) Ltd., [2013] B.C.J. No. 2741, 2013 BCCA 529, British Columbia ...

The appellant registered nurse was denied registration as a Nurse Practitioner by the Registration Committee of the College of Nurses of Ontario (the “Registration Committee”), on the basis that she had failed written examinations on three occasions and there was no discretion to afford a fourth attempt. The appellant applied for review of the Registration Committee’s decision to the Health Professions Appeal and Review Board (the “Board”) which affirmed the Registration Committee’s decision. The appellant then appealed the Board’s decision to the Court, which dismissed her appeal, finding that the Board’s decision was reasonable, and there was no evidence before it upon which they could have found the examination to be unfair to the applicant because of its American content or the stress created by having to write the examination. What was before the Board was little more than a bare allegation of unfairness advanced by the appellant.

25. February 2014 0
Administrative law – Decisions of administrative tribunals – College of Nurses – Nurses – Governance – Permits and licences – Competence – Training requirements – Fairness – Judicial review – Standard of review – Reasonableness simpliciter – Evidence Al Baba v. College of Nurses of Ontario, [2013] O.J. No. 5392, 2013 ONSC 7335, Ontario Superior ...