The Petitioner sought judicial review of a decision of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (the “College”) to terminate him from his position as registrar of the College. The petition was dismissed as the judge found that the College met its requirement of procedural fairness. On appeal, the Court held that the reviewing judge erred in mixing the merits of the decision to terminate with the process of termination. Furthermore, she made a palpable error of fact in finding that the Petitioner had notice of the grounds for termination when he had no prior notice of a report accusing him of dishonesty and no opportunity to address the accusation. This amounted to a denial of procedural fairness. The Court ordered that he be re-instated to his position as registrar, with full back pay and benefits less earnings from other employment.

27. December 2005 0
Administrative law – Employment law – Termination of employment – Decisions of administrative tribunals – College of Traditional Chinese Medicine Practitioners – Natural justice – Judicial review – Appeals – Procedural requirements and fairness Wong v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia, [2005] B.C.J. No. 2219, British Columbia Court of Appeal, October 21, ...

Following a finding of professional misconduct, a Hearing Panel of the Law Society of Upper Canada (“LSUC”) ordered that the former member be disbarred. The LSUC Appeal Panel set aside the penalty order and substituted its penalty that the former member receive ongoing medical treatment, file medical reports, and practice law only as an employee of an approved member of the LSUC. On appeal by the LSUC, the Court found that the Appeal Panel stepped out of its proper role as a “first review tribunal” and erroneously took on a trial de novo role and proceeded as an initial hearing panel. The Court set aside the penalty imposed by the Appeal Panel and reinstated the Hearing Panel’s penalty of disbarment.

27. December 2005 0
Administrative law – Barristers and solicitors – Disciplinary proceedings – Penalties – Disbarment – Decisions of administrative tribunals – Law Societies – Appeal process – Fresh evidence – Admissibility – Jurisdiction – Procedural requirements and fairness Law Society of Upper Canada v. Crozier, [2005] O.J. No. 4520, Ontario Superior Court of Justice, October 24, 2005, J.G.J. O’Driscoll, ...

The Court dismissed the Province’s petition for judicial review of a decision of the British Columbia Human Rights Tribunal (the “Tribunal”) that the Province discriminated against the Respondents, Ms. Hutchinson and her father, Mr. Hutchinson, on the basis of physical disability and family status in the manner in which it was applying its Choices in Support for Independent Living (“CSIL”) policy which included a blanket prohibition against hiring family members. The Court upheld the Tribunal’s finding that a prima facie case of discrimination had been established against the Province and upheld the Tribunal’s order of monetary compensation of $105,850 to Mr. Hutchinson for lost opportunity for employment.

27. December 2005 0
Administrative law – Human rights complaints – Discrimination – Disability – Family members as care givers – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Standard of review – Correctness – Patent unreasonableness – Jurisdiction of tribunal – Damages British Columbia v. Hutchinson, [2005] B.C.J. No. 2270, British Columbia Supreme Court, October 12, 2005, Cullen ...

When interpreting the Liquor Control and Licensing Act, R.S.B.C. 1996, c.267 and its Regulations, the standard of review of the General Manager, Liquor Control and Licensing Branch, was correctness. The General Manager’s interpretation of the food service requirement, which permitted the sale of alcohol so long as the establishment was primarily engaged in the service of food during all hours of operation, was correct. There was sufficient evidence to support the General Manager’s conclusion that patrons of the Petitioner, 532871 B.C. Ltd., carrying on business as The Urban Well, were not consumers of food. The General Manager’s decision on the application of the law to the facts was reviewable on a reasonableness standard.

25. October 2005 0
Administrative law – Permits and licences – Suspensions – Decisions of administrative tribunals – Liquor Licensing Board – Judicial review – Compliance with legislation – Standard of review – Correctness – Reasonableness simpliciter 532871 B.C. Ltd. (c.o.b. The Urban Well) v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2005] B.C.J. No. 1821, British Columbia Court ...

The Court of Appeal upheld the decision by the British Columbia Human Rights Tribunal that female communications operators employed by the police department were not entitled to pay equity with their mostly male peers at fire department. The appropriate standard of review was reasonableness. The tribunal’s decision that the female communications operators were employed by the Vancouver Police Board and the fire dispatchers were employed by the City of Vancouver, and thus equity considerations did not apply as between the two groups, was reasonable.

25. October 2005 0
Administrative law – Human rights complaints – Discrimination – Gender – Wage disparity – Employment law – Pay equity – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Standard of review – Reasonableness simpliciter Reid v. Vancouver Police Board, [2005] B.C.J. No. 1832, British Columbia Court of Appeal, August 18, 2005, Donald, Lowry and ...

A decision of the Canadian Human Rights Commission (the “Commission”) to institute an inquiry into a complaint after an Investigator appointed by the Commission recommended dismissal of the complaint did not attract the duty of procedural fairness to provide written reasons. In certain circumstances, the duty of procedural fairness requires the provision of a written explanation of a decision where the decision has important significance for the individual and where there is a statutory right of appeal. This was not such a case.

25. October 2005 0
Administrative law – Human rights complaints – Discrimination – Investigations – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Failure to provide reasons – Procedural requirements and fairness – Natural justice – Standard of review – Patent unreasonableness Canadian Imperial Bank of Commerce v. Durrer, [2005] F.C.J. No. 1321, Federal Court, August 8, ...

A labour arbitration board which awarded damages in lieu of reinstatement to an employee dismissed without just cause for non-culpable incompetence did not act unreasonably even when the case law indicated that the jurisdiction to substitute an award of damages in lieu of reinstatement should be exercised in “exceptional” or “extraordinary circumstances”. The board properly considered the whole of the circumstances and reached a reasonable conclusion as to the viability of the employment relationship. The board’s decision fell within the bounds of arbitral jurisprudence requiring a finding of exceptional circumstances prior to substitution of remedy.

22. June 2004 0
Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] S.C.J. No. 24, Supreme Court of Canada, April 29, 2004, McLachlin, C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ. The appellant employer hired the respondent grievor as scheduling co-ordinator but dismissed her on the grounds that she failed to meet deadlines ...

The order of the BC Securities Commission imposing the maximum administrative penalty against two securities brokers for breach of a prospectus requirement was restored. The standard of review applicable to the Commissioner’s order was reasonableness, and the focus should be on the reasonableness of the decision or the order, not on whether it was a tolerable deviation from a preferred outcome. If there was a rational basis for the Commissioner’s decision in light of the statutory framework and the circumstances, then the decision should not be disturbed.

22. June 2004 0
Cartaway Resources Corp. (Re) Executive Director of the British Columbia Securities Commission v. Hartvikson et al, [2004] S.C.J. No. 22, Supreme Court of Canada, April 22, 2004, McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ. A group of securities brokers, including the Respondents Harvikson and Johnson (the “Respondents”), failed to ...

The appellant teacher unsuccessfully appealed a decision of the Hearing Panel of the disciplinary committee of the British Columbia College of Teachers (“BCCT”) finding him guilty of conduct unbecoming on the grounds that he made discriminatory and derogatory statements against homosexuals in a number of published writings. The appellant also unsuccessfully appealed the penalty of the one-month suspension of his teaching certificate.

23. March 2004 0
Administrative law – Decisions of administrative tribunals – College of Teachers – Teachers – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Judicial review – Procedural requirements and fairness – Failure to provide adequate reasons – Standard of review – Reasonableness simpliciter – Charter of Rights – Freedom of expression Kempling v. British Columbia College ...