On judicial review, the applicant, Siksika Nation (“Siksika”), sought to quash the decision of the Alberta Gaming and Liquor Commission (the “Board”) granting a liquor licence to the respondent, Walji Holdings Limited (“Walji”) on the grounds that the Board had exceeded its jurisdiction and breached the principles of natural justice. The Court, in light of the applicable law and the strict standard of review, found that the decision to grant the licence was not patently unreasonable and therefore did not warrant judicial intervention. However, the Court did note that the Alberta gaming and liquor legislation was deficient in failing to enumerate public interest as a consideration in granting licences but, being constrained by the wording of the legislation, had to dismiss the application for judicial review.

23. March 2004 0
Administrative law – Decisions of administrative tribunals – Gaming and Liquor Commission – Permits and licences – Powers under legislation – Fresh evidence – Admissibility – Aboriginal issues – Judicial review – Procedural requirements and fairness – Natural justice – Failure to provide adequate reasons – Jurisdiction – Standard of review – Patent unreasonableness Siksika Nation v. Walji ...

The Respondent Ministry of Community, Family and Children’s Services (the “Ministry”) terminated the funding and directed another agency to take over the programs of the Applicant, St. Catharines Association for Community Living (“SCACL”), a non-profit charitable organization providing services to disabled persons. SCACL’s application for judicial review of this decision was allowed, and the Ministry’s decision to terminate the funding, seize the property, and authorize a third party to operate the agency was quashed as illegal. The standard of review was that the decision was patently unreasonable. Although the Minister was entitled to terminate a contractual relationship where there has been a fundamental breach, there was no evidence of an inability by SCACL to protect its clients, there was no evidence of any weighing of considerations pertinent to the objects of the administration. The decision was therefore patently unreasonable.

27. January 2004 0
Administrative law – Charitable organizations – Governance and funding – Powers of government – Decisions of administrative tribunals – Ministerial orders – Jurisdiction – Judicial review – Procedural requirements and fairness – Compliance with legislation – Standard of review – Patent unreasonableness Byl (Litigation guardian of) v. Ontario, [2003] O.J. No. 3436, Ontario Superior Court of Justice ...

The Appellant Imperial Oil was issued a characterization order by the Respondent Minister of the Environment to undertake a site study, including decontamination measures. Imperial Oil declined to do the study, arguing breach of the rules of procedural fairness since the Minister was in a conflict of interest as he himself was being sued for damages by the present owners of the land. The appeal was dismissed. There was no conflict of interest which warranted judicial intervention and the Minister acted within the framework provided by the applicable law and in accordance with the law.

27. January 2004 0
Administrative law – Environmental issues – Contaminated sites – Remediation – Decisions of administrative tribunals – Ministerial orders – Impartiality – Conflict of interest – Personal interests – Judicial review – Procedural requirements – Fairness Imperial Oil Ltd. v. Quebec (Minister of the Environment), [2003] S.C.J. No. 59, Supreme Court of Canada, October 30, 2003, McLachlin C.J. ...

The Provincial Court Judges’ Association of New Brunswick (the “Association”) appealed the lower court’s decision that the Government of New Brunswick had justified its decision to reject the recommendations of a judicial remuneration commission on salary increases, according to a standard of simple rationality. On appeal, it was upheld that the recommendations of a judicial remuneration commission were not binding on government; however, if a government chose to reject them, it had to justify its decision on a standard of simple rationality. Although the Government’s reasons for rejecting the salary recommendation were expressed in recitals, thus exacerbating the difficulty of applying any review standard, it was held that with respect to the parity argument (parity with judges of the Court of Queen’s bench) and attracting qualified applicants, the Government’s decision to reject the Commissioner’s salary recommendation met the simple rationality test.

28. October 2003 0
Administrative law – Remuneration of judges – Judicial Remuneration Commission – Recommendations – Government rejection – Simple rationality standard Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2003] N.B.J. No. 321, New Brunswick Court of Appeal, August 20, 2003, Turnbull, Larlee and Robertson JJ.A. The government of New Brunswick appointed ...

Parties appearing before adjudicative tribunals are entitled to representation by an agent of their choosing, but tribunals retain a residual discretion to override this general right, provided that the discretion is properly exercised. The Discipline Committee of the Association of New Brunswick Registered Nursing Assistants refused to allow the Appellant, a Registered Nursing Assistant (“RNA”) to be represented by a non-lawyer, a national representative of the Appellant’s union. The fact that the Registered Nursing Assistants Act allowed for legal representation does not support the inference that the right to lay representation has been abrogated. The section is permissive and does not restrict nor prohibit any party from attending with a representative of his or her choice. The Association’s decision to prohibit a non-lawyer to act as the Appellant’s agent was based on a false or unsubstantiated premise that he was practising law in contravention of the Law Society Act and breached its fairness duty. Accordingly, the appeal was allowed and the decisions of the Association, with respect to the finding of professional misconduct and the order to pay costs, were set aside.

28. October 2003 0
Administrative law – Practice and procedure – Boards and tribunals – Right of parties to choose an agent Thomas v. Assn. of New Brunswick Registered Nursing Assistants, [2003] N.B.J. No. 327, New Brunswick Court of Appeal, September 4, 2003, Rice, Turnbull and Robertson JJ.A. The Appellant, a Registered Nursing Assistant, appeared before a Disciplinary Committee of ...

The Petitioners, female communications operators at the Vancouver Police Department, sought judicial review of a Human Rights Tribunal’s decision dismissing their claims that they were paid less than male communications operators doing the same work at the Vancouver Fire Department contrary to sections 12 and 13 of the Human Rights Code (the “Code”). The Tribunal concluded that for the purposes of wage discrimination under section 12 of the Code, the City, who employed the Fire Dispatchers, was not the Petitioner’s employer and therefore no wage-discrimination between employees of different sexes could have occurred.

28. October 2003 0
Administrative law – Human rights complaints – Discrimination – Wage disparity – Gender – Decisions of administrative tribunals – Human Rights Tribunal – Judicial review – Standard of review – Reasonableness Reid v. Vancouver (City), [2003] B.C.J. No. 2043, British Columbia Supreme Court, September 3, 2003, Garson J. Section 12 of the Human Rights Code, R.S.B.C. 1996, ...

The Western Canada Wilderness Committee (“WCWC”) appealed a decision of a chambers judge setting aside the WCWC’s petition for judicial review of a Ministry of Forests District Manager’s decision (“DM”) that a logging cutback referred to in a Forest Development Plan (“FDP”) met the requirement of s.41(1) of the Forest Practices Code of British Columbia Act, R.S.B.C. 1996, c.159 (the “Code”) as it related to the spotted owl, in that the FDP would “adequately manage and conserve the forest resources of the area to which it applied”. The appeal was dismissed.

23. September 2003 0
Administrative law – Environmental issues – Forest practices – Precautionary principle – Wildlife habitat – Spotted Owl – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness Western Canada Wilderness Committee v. British Columbia (Ministry of Forestry, South Island Forest District), [2003] B.C.J. No. 1581, British Columbia Court of Appeal, July 8, ...

The court, on judicial review, found that the interpretation given by the Assistant Information and Privacy Commissioner (the “Commissioner”) to subsection 21(5) of the Freedom of Information and Protection of Privacy Act (the “Act”), which allowed an institution to deny the requester the right to know whether a record exists, even if it does not, was “unsupported by any reasons that can stand up to a somewhat probing examination” (Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17). In the result, the Commissioner’s decision was set aside and the Ministry’s decision to refuse to confirm or deny the existence of any responsive records in relation to the requests was confirmed.

23. September 2003 0
Administrative law – Freedom of information and protection of privacy – Disclosure – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2003] O.J. No. 2601, Ontario Superior Court of Justice, June 26, 2003, Blair, Lang and C. ...

On application by a customer of Telus Communications Inc. (“Telus) for local residential service under provisions of the Personal Information Protection and Electronic Documents Act (the “PIPEDA”), the court held that Telus had valid consent under PIPEDA to publish its customers’ personal information in Telus directories. The court also held that PIPEDA did not restrict Telus from charging a fee for the provision of Non-Published Number Service (“NPNS”).

23. September 2003 0
Administrative law – Freedom of information and protection of privacy – Disclosure – Telephone listings – Fee for unlisted numbers Englander v. Telus Communications Inc., [2003] F.C.J. No. 975, Federal Court of Canada – Trial Division, June 3, 2003, Blais J. The Applicant Englander, a customer of Telus Communications Inc. (“Telus”) for local residential telephone ...