The Court of Appeal allowed the appeal by the College of Pharmacists of British Columbia from a decision of a chambers judge on an application for judicial review. The Appeal Court found that the chambers judge erred in remitting a matter back to the College’s Discipline Committee for rehearing solely on the issue of penalty and not on the merits in circumstances where the judge found the respondent pharmacist’s admissions to be equivocal. Having found that the admissions of professional misconduct were equivocal and therefore could not be relied upon, the chambers judge ought to have considered whether a new hearing or admission of further evidence was necessary in the interest of justice. As a result, the appeal was allowed and the question of liability on the two counts of professional misconduct was remitted back to the Disciplinary Committee of the College of Pharmacists.

23. April 2013 0
Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Professional misconduct or condut unbecoming – Disciplinary proceedings – Penalties – Public interest – Judicial review – Hearings – Conduct of hearings – Evidence Farbeh v. College of Pharmacists of British Columbia, [2013] B.C.J. No. 483, 2013 BCCA 59, British Columbia ...

The Workers’ Compensation Appeal Tribunal’s (“WCAT”) interpretation of its policy, which resulted in a decision not to use class average wages to calculate the appellant worker’s permanent disability pension benefits, was found by the Court of Appeal not to be patently unreasonable. There was nothing in the WCAT reasons to suggest that the policy could never apply to migrants from other provinces or to workers whose recent actual earnings reflected their choices about where to work or what kind of job to take. Rather, the reasons disclosed a finding that the policy did not apply to the appellant given the particular facts before the WCAT. Interpretation of Board policy fell within WCAT’s exclusive jurisdiction and lay at the heart of the WCAT’s specialized function and expertise on appeal. Courts in judicial review proceedings are required to show deference and interfere only when an interpretation is patently unreasonable. In this case, WCAT’s interpretation of the policy turned on recognizing the purpose of the policy to protect against inequitable use of actual earnings where those earnings are not sufficient to allow a determination of what best represents the worker’s long-term loss of earnings in circumstances where there was an element of unfairness in using past earnings rather than a class average, i.e. where a worker’s income would be almost certain to increase substantially. Such an interpretation was not “clearly irrational” nor did it fail to accord with reason or border on the absurd. As a result, this ground of appeal was dismissed.

25. September 2012 0
Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Average earnings – method of calculation – Policies – Validity and application of policies and guidelines – Judicial review – Evidence – Standard of review – Patent unreasonableness Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal), [2012] B.C.J. ...

A non-statutory organization that regulates the conduct of its members is not a government body and thus not subject to judicial review. The defendant Investment Regulatory Organization of Canada (“IROC”) is a voluntary industry organization recognized by the British Columbia Securities Commission as a self-regulatory organization pursuant to the Securities Act, RSBC 1996, c.418, to regulate standards of conduct within the securities industries. Its members agree to submit to its jurisdiction in relation to disciplinary matters. The plaintiff is a member of IROC and, in doing so, agreed to be bound by the Bylaws, Rules and Regulations of IROC and submit to its jurisdiction. While IROC is entitled to conduct a hearing into the professional activities of its members, such as the plaintiff, and impose a penalty if a contravention of its bylaws or member rules is proven, it is not a government body and its decisions are not subject to judicial review. Although the plaintiff commenced her proceedings by (Amended) Notice of Civil Claim, the relief sought (including asking the Court to enjoin IROC from making a decision and seeking declarations concerning the lawfulness of the conduct of an IROC hearing) was the language and substance of judicial review. The Court had no jurisdiction to allow her Amended Notice of Civil Claim to proceed.

25. September 2012 0
Administrative law – Decisions of administrative tribunals – Investment Regulatory Organization of Canada – Professions – Governance – Self-governing professions – Non-statutory organizations – Powers – Judicial review – Jurisdiction of court – Procedural requirements and fairness – Natural justice Steinhoff v. Investment Regulatory Organization of Canada, [2012] B.C.J. No. 1489, 2012 BCSC 1054, British ...

A partner in a limited liability partnership is not an employee of the partnership for the purpose of claiming protection of human rights legislation from age discrimination. The British Columbia Human Rights Tribunal and the Supreme Court, on judicial review, decided that for the purposes of human rights legislation, a partnership may be treated as a separate legal entity from its partners and as the employer of the partner, resulting the Tribunal having jurisdiction to hear a complaint by a partner of discrimination in his employment. On appeal by the partnership, the Court of Appeal found that the principles of interpretation of the Human Rights Code, RSBC 1996, c.210, which mandated a broad, liberal approach consistent with its remedial purposes, do not extend to overriding the fundamental and well-established principle of law that a partnership, is not, in law, a separate entity but a collective of its partners. As such, it cannot in law be an employer of a partner. The Tribunal had no jurisdiction to hear the complaint and the appeal was allowed.

25. September 2012 0
Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Age – Statutory interpretation – Employment law – Employee – definition – Partnerships – Mandatory retirement – Judicial review – Jurisdiction – Compliance with legislation Fasken Martineau DuMoulin LLP v. British Columbia (Human Rights Tribunal), [2012] B.C.J. ...

A person may bring a legal proceeding to challenge the decision of a public or quasi-public body only if the person’s private rights are directly affected by the decision, or the person is exceptionally prejudiced by the decision in a manner different from the general public. In the alternative, a Court has discretion to grant public interest standing, where a party does not have personal standing. A group opposing the decision of the Director, Ministry of the Environment to issue a Renewable Energy Approval for the construction and operation of a Class 4 wind facility in the Township of Mapletown, did not meet the test for public interest standing as it did not establish that a genuine interest in the issues raised. As well, PMI had an appeal right to the Environmental Review Tribunal, which it had exercised.

26. June 2012 0
Administrative law – Decisions of administrative tribunals – Ministerial orders – Environmental matters – Judicial review – Parties – Standing – Public interest – Procedural requirements and fairness – Compliance with legislation Preserve Mapleton Inc. v. Ontario (Director, Ministry of the Environment), [2012] O.J. No. 2037, 2012 ONSC 2115, Ontario Superior Court of Justice, April ...

By enrolling in a university, students become subject to the institution’s discretion in resolving academic matters. Courts will only interfere in the core academic functions of universities in cases of “manifest unfairness”. Based on these principles, the Court denied an application on judicial review to set aside a decision of the Senate Appeals Committee of the University of Alberta, which upheld the Residency Program Committee’s requirement that a postgraduate medical student in cardiac surgery enter a six-month remediation period prior to entering her fourth year of residency. Given that the resident’s right to continue her profession and employment was not at stake, she had no right to call or cross-examine witnesses in the academic proceedings.

26. June 2012 0
Administrative law – Decisions of administrative tribunals – University Committees – Universities – Medical residents – Evaluation of residents – Physicians and Surgeons – Training requirements – Judicial review – Procedural requirements and fairness – Bias – Witnesses Alsaigh v. University of Ottawa, [2012] O.J. No. 2027, 2012 ONSC 2313, Ontario Superior Court of Justice, ...

In considering an application for registration and assessing whether an applicant met substantially equivalent registration requirements, the accreditation committee of the Ontario College of Teachers was required to provide substantive and tenable reasons for its decision

26. June 2012 0
Administrative law – Decisions of administrative tribunals – College of Teachers – Teachers – Permits and licences – Training requirements – Judicial review – Failure to provide reasons Saba v. Ontario College of Teachers, [2012] O.J. No. 1958, 2012 ONSC 1734, Ontario Superior Court of Justice, April 16, 2012, K.E. Swinton, P.C. Hennessy and A.H. ...

The Court of Appeal dismissed the University of Calgary’s appeal from a judicial review decision quashing disciplinary findings and sanctions against students found by the University to have conducted non-academic misconduct by posting comments about their professor on a Facebook wall. While the Court of Appeal unanimously upheld the Chambers judge’s decision to quash the Review Committee’s decision, the Court issued three separate concurring judgments, with the lead judgment revisiting the Supreme Court of Canada’s 1990 decision in McKinney v. University of Guelph, [1990] 3 SCR 229, and concluding that McKinney does not always preclude the application of the Charter to universities. In this circumstance, the lead judgment found that the Charter applied to university discipline and the students’ rights had been breached. The other two concurring judgments found it unnecessary to analyze the applicability of the Charter.

26. June 2012 0
Administrative law – Decisions of administrative tribunals – University Committees – Universities – Student discipline – Internet – Social media – Charter of Rights and Freedoms – Freedom of expression – Judicial review – Procedural requirements and fairness – Failure to provide reasons – Compliance with legislation – Standard of review – Correctness – Reasonableness ...

A registrant midwife, Ms. B, who had filed a mandatory report to the College of Midwives of Ontario (the “College”) outlining the circumstances in which an associate and fellow College registrant midwife, Ms. CH, had left Ms. B’s midwifery practice, was not entitled to a copy of the College’s Inquiries, Complaints and Reports Committee (“ICRC”) decision in respect of Ms. CH or a complete record of the investigatory records, even though Ms. B intended to apply for judicial review of the ICRC’s decision in respect of Ms. CH

24. April 2012 0
Administrative law – Decisions of administrative tribunals – College of Midwives – Investigations – Midwives – Professional governance – Reporting requirements – Judicial review – Parties – Disclosure of third party records – Compliance with legislation Batacharya v. College of Midwives of Ontario, [2012] O.J. No. 697, 2012 ONCA 1072, Ontario Superior Court of Justice, ...