The Court quashed the decision of the Corporation of the City of White Rock (“White Rock”) refusing to issue a development permit as being of no force and effect for taking into consideration matters not within its Official Community Plan guidelines and further issued an order in the nature of mandamus requiring the issuance of a permit

25. July 2009 0
Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Building permits – By-laws – Planning and zoning – Remedies – Mandamus – Judicial review – Failure to provide reasons – Standard of review – Correctness Yearsley v. White Rock (City), [2009] B.C.J. No. 1102, 2009 BCSC 719, British Columbia Supreme Court, ...

The Court dismissed the appeal by the Human Rights Commission (the “Commission”) from a decision of the Human Rights Tribunal finding that the complainant’s disciplinary suspension from school for profanity did not constitute discriminatory conduct. Although the complainant suffered from Williams Syndrome and was mentally retarded, there was no evidence to show that profanity was a characteristic common to persons with Williams Syndrome and suspensions were regularly used by the school as a form of discipline and 8 to 10 students would be suspended during any school year. As long as suspensions were used in a non-discriminatory manner, they were permissible and no prima facie case of discrimination had been made out.

28. October 2008 0
Administrative law – Decisions of administrative tribunals – Human Rights Commission – Schools – Suspension of students – Human Rights complaints – Discrimination – Disability – Judicial review – Standard of review – Correctness – Evidence Saskatchewan (Human Rights Commission) v. Prince Albert Roman Catholic School Division No.6, [2008] S.J. No. 434, 2008 SKQB 227, ...

The appellant strip club successfully appealed the dismissal of its judicial review application of the City of Hamilton’s licensing committee’s decision to revoke its adult entertainment license for failure to actively carry on business within a reasonable time. The Court of Appeal found that the City’s failure to provide proper disclosure of the basis of the proposed revocation and an accurate statement of grounds tainted the hearing from the outset and denied the appellant’s right to a fair hearing. This failure to comply with its obligation of procedural fairness was sufficient to set aside the licensing committee’s recommendation and council’s decision adopting it.

28. October 2008 0
Administrative law – Decisions of administrative tribunals – Municipal councils – Permits and licences – Renewal of business licence – By-laws – Hearings – Conduct of hearings – Disclosure – Evidence – Judicial review – Procedural requirements and fairness – Natural justice 1657575 Ontario Inc. (c.o.b. Pleasures Gentlemen’s Club) v. Hamilton (City), [2008] O.J. No. ...

The Court allowed an appeal by the appellant physician, finding that a Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) was not entitled to permanently restrict his practice to male patients. While the Committee has jurisdiction to impose terms, conditions and limitations on a member’s certificate of registration for either a “specified or indefinite period of time”, indefinite does not mean permanent but rather means unspecified or undefined and may be subject to variation.

28. October 2008 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties and suspensions – Permanent vs. indefinite – Judicial review – Jurisdiction Li v. College of Physicians and Surgeons of Ontario, [2008] O.J. No. 2975, Ontario Superior Court ...

The Court dismissed an application for a declaration that a complaint received by the Institute of Chartered Accountants (the “Institute”) related to matters outside of its jurisdiction on the grounds that allowing judicial review at this stage would amount to a collateral attack on the discipline hearing decision. As well, there was inordinate delay which was the fault of the applicant. In the intervening 6 year period between the time the application was commenced and set down for hearing, the applicant had fully participated in a discipline hearing where he was found guilty of unprofessional conduct and unsuccessfully appealed the Discipline Tribunal’s decision.

28. October 2008 0
Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Investigations – Judicial review – Delay – Jurisdiction – Remedies – Self-governing professions – Declaratory relief Curda v. Institute of Chartered Accountants of Alberta, [2008] A.J. No. 800, 2008 ABQB 443, ...

There is no unfettered right to possess firearms in Canada, notwithstanding the preamble of the British North America Act, 1867, which the applicant suggested incorporated the English Bill of Rights, 1689, allowing Protestant subjects to have firearms for their defence. There was a legislative history in Canada that heavily regulated gun ownership, and s.117.03 of the Criminal Code, allowing for seizure and destruction of an unlicensed firearm was intra vires the federal Parliament, as the regulation of the possession of a firearm was within the sphere of its criminal law power. This provision did not violate the applicant’s rights under ss.7 and 26 of the Charter, and there was no evidentiary basis that the applicant needed the firearm for his personal security. There was also no breach of the applicant’s fundamental justice, even if the 1689 Bill of Rights was part of the Canadian Constitution, s.26 of the Charter did not guarantee the rights therein.

22. April 2008 0
Administrative law – Firearms registration – Legislation – Criminal code – Ultra vires – Judicial review – Compliance with legislation – Charter of Rights and Freedoms – Right to bear arms Hudson v. Canada (Attorney General), [2007] S.J. No. 693, Saskatchewan Court of Queen’s Bench, December 12, 2007, N.G. Gabrielson J. The applicant, a doctor ...

A judge in chambers was not entitled to substitute his view of good business sense or to consider the weight to be given to evidence in setting aside a decision of an abritrator in a commercial dispute where the parties to the dispute had agreed in advance that the decision would be “final and binding”

22. April 2008 0
Administrative law – Arbitration and award – Decisions of administrative tribunals – Arbitration Board – Jurisdiction of court – Compliance with legislation – Evidence Weyerhaeuser Co. v. Hayes Forest Services Ltd., [2008] B.C.J. No. 108, British Columbia Court of Appeal, January 24, 2008, R.T.A. Low, P.D. Lowry and E.C. Chiasson JJ.A. Two companies, Weyerhaeuser Company ...

There is no statutory immunity afforded to the Crown in respect of an order sought by the Law Society of Upper Canada authorizing its investigator to seize a Crown brief which included wire tap evidence in the possession of the RCMP to assist in the investigation of a lawyer for professional misconduct. The doctrine of intrajurisdictional immunity did not insulate the RCMP from an order for search and seizure given the importance of the public interest protected by the Law Society and s.8(2)(c) of the Privacy Act, R.S.C., 1985, c.P-21, that says the federal government’s obligation to keep information confidential is subject to court orders affecting those documents.

22. April 2008 0
Administrative law – Barristers and solicitors – Criminal investigations – Judicial review – Disclosure – Public interest – Evidence – Crown agents – Royal Canadian Mounted Police – Jurisdiction – Intrajurisdictional immunity – Freedom of information and protection of privacy – Public bodies Law Society of Upper Canada v. Canada (Attorney General), [2008] O.J. No. ...

Duty of fairness in investigative stage is only limited, and investigating members authorized by the professional conduct committee of the Institute of Chartered Accountants to investigate the complaint met their duty by advising the applicant accountant of the generalities of what was being investigated. There was no obligation to provide full particulars. However, the professional conduct committee’s recommendation to hold a hearing was subject to judicial review, prior to the hearing being held. The decision had a significant adverse effect on the applicant and, as the professional conduct committee owed a duty of fairness to the applicant accountant, that duty of fairness may be defeated if judicial review was unavailable. Finally, the professional conduct committee had jurisdiction to investigate matters not specified in the complaint because these matters were sufficiently closely related to the complaint, it was in the context of public interest, there was lack of precise technical knowledge on the part of the public, and the legislative powers to investigate a complaint given to the committee were broad.

22. April 2008 0
Administrative law – Decisions of administrative tribunals – Institute of Chartered Accountants – Accountants – Disciplinary proceedings – Investigations – Procedural fairness – Bias – Evidence – Judicial review – Compliance with legislation  – Jurisdiction – Public interest Swanson v. Institute of Chartered Accountants of Saskatchewan, [2007] S.J. No. 701, Saskatchewan Court of Queen’s Bench, ...