The Court of Appeal upheld the Chambers judge’s ruling that the Information and Privacy Commissioner of British Columbia (the “Commissioner”) erred in law by failing to find that the release by the Legal Services Society (the “Respondent”) to a local newspaper reporter (the “Appellant”) of the names of the top five “billers” for immigration and criminal matters would breach solicitor-client privilege. The standard of review applied was one of correctness.

22. July 2003 0
Administrative law – Freedom of information and protection of privacy – Disclosure – Public body – Legal Services Society – Solicitor-client privilege – Judicial review – Administrative decisions – Privacy commissioner – Standard of review – Correctness Legal Services Society v. British Columbia (Information and Privacy Commissioner), [2003] B.C.J. No. 1093, British Columbia Court of Appeal, May ...

Ewachniuk appealed a decision of a hearing panel of the Respondent Law Society of British Columbia that had found him guilty of professional misconduct in “attempting to intimidate” and in “actually intimidating” two witnesses from giving evidence at trial and in requesting Crown counsel lay charges against the same witnesses “for the purpose of preventing them from coming to Canada to give evidence in court”. The hearing panel further found that Ewachniuk must be disbarred as a result of misconduct and ordered him to pay the costs of the hearing. All grounds of appeal were dismissed.

22. July 2003 0
Administrative law – Judicial review – Administrative decisions – Standard of review – Unreasonableness – Delay – Barristers and solicitors – Disciplinary proceedings – Professional misconduct – Penalties – Disbarment – Costs Ewachniuk v. Law Society of British Columbia, [2003] B.C.J. No. 823, British Columbia Court of Appeal, April 15, 2003, Newbury, Huddart and Saunders JJ.A. A ...

A member of the Law Society of British Columbia and the Certified Accountants Association of British Columbia (the “Appellant”), brought an action for damages for defamation, malicious prosecution, negligence, misfeasance in public office etc. against the members of the Professional Conduct Inquiry Committee and the Director of Ethics of the Institute of Chartered Accountants (the “Respondents”) after they forwarded an investigator’s report to the Law Society and Certified General Accountants Association. The B.C. Court of Appeal held that a person who provides information to a professional disciplinary body about the conduct of one of its members, is not liable in an action brought by that member. The communication is subject to absolute privilege, which provides a defence to all claims. In addition, while the filing of a jury notice is an important factor to consider in assessing whether a matter is appropriate for summary trial, and may “hold an extra value in cases of defamation”, it is not a bar to bringing an application for summary trial pursuant to Rule 18A. The trial judge exercised his discretion in determining that the matter was appropriate for disposition by summary trial and made no error in principle in deciding the case under Rule 18A.

22. July 2003 0
Administrative law – Accountants – Disciplinary proceedings – Investigative bodies – Powers – Jurisdiction – Absolute privilege – Practice and procedure – Jury notice – Summary proceedings Hung v. Gardiner, [2003] B.C.J. No. 1048, British Columbia Court of Appeal, May 6, 2003, Ryan, Hall and Levine JJ.A. The Appellant is a member of the Law Society of ...

The Hospital Labour Disputes Arbitration Act (the “HLDAA”)dictates that disputes over collective agreements in Ontario hospitals and nursing homes have to be resolved by compulsory arbitration. The Minister of Labour appointed retired judges to chair arbitration boards. The Respondents, Canadian Union of Public Employees and Service Employees International Union, objected to the appointments on the basis that the retired judges lacked expertise, experience, tenure, and independence from government. The Appellant Minister of Labour in exercising his power of appointment under the HLDAA is required to be satisfied that the prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognised in the labour relations community as generally acceptable to both management and labour. The appropriate standard of review is patent unreasonableness. The majority found that the appointments were patently unreasonable because the Minister expressly excluded relevant factors that went to the heart of the legislative scheme.

22. July 2003 0
Administrative law – Labour law – Arbitrators – Appointment – Bias – Ministerial powers – Judicial review – Statutory powers – Compliance with legislation – Standard of review – Patent unreasonableness Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] S.C.J. No. 28, Supreme Court of Canada, May 16, 2003, McLachlin C.J. and Gonthier, Iaccobucci, Major, Bastarache, ...

An employee of the Health Care Corporation of St. John’s was unsuccessful in her application to set aside the decision of the Human Rights Commission not to refer her complaint to a board of inquiry. The Court held that the Commission exercised its administrative screening function in a reasonable manner. The legislative scheme in the Human Rights Code, R.S.N. 1990, c.H-14 required the Court to show considerable deference to a decision of the Human Rights Commission. While it may have been preferable for the Commission to have provided fuller reasons, it was under no statutory obligation to do so. The reasons given by the Commission adequately indicated to the employee that, following a thorough investigation and review of the evidence, her complaint did not meet the Commission’s threshold level for referring the matter to a board of inquiry.

22. April 2003 0
Administrative law – Human rights complaints – Evidence – Decisions of administrative tribunals – Human Rights Commission – Judicial review – Failure to provide reasons – Standard of review – Reasonableness Spurrell v. Newfoundland (Human Rights Commission), [2003] N.J. No. 53, Newfoundland and Labrador Supreme Court – Trial Division, February 25, 2003, Adams J. An employee of ...

Although job related information pertaining to RCMP officers: (a) the list of historical postings, their status and date, (b) the list of ranks and the dates they achieved those ranks, (c) their years of service, and (d) their anniversary date of service, constituted “personal information” as defined under s.3 of the Privacy Act, R.S.C. 1985, c.-P-21, it should nonetheless be disclosed because it fell within the “position or functions of the individual exception” under s.3(j). The information did not reveal anything about the competence or divulge any personal opinion given outside the course of employment, but rather provided information relevant to understanding the functions performed by the officers.

22. April 2003 0
Administrative law – Freedom of information and protection of privacy – Disclosure – Exceptions – Federal employees – Personal information – Definition – Judicial review – Standard of review – Correctness Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] S.C.J. No. 7, Supreme Court of Canada, March 6, 2003, McLachlin C.J. and ...

On appeal, a Human Rights complainant failed to establish that an adjudicator under the Human Rights Code, R.S.N. 1990, c.H-14, erred in failing to find discrimination on the basis of disability or that the Trial Division judge erred on appeal. The fact that her employer considered her prior use of sick leave in determining which of two employees should be awarded the position of “lead hand” porter did not amount to discrimination on the basis of physical or mental disability as the complainant’s absences from work did form evidence of a pattern of illness or injury which would indicate that degree of permanence or impairment necessary to prove disability.

22. April 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Definition – Judicial review – Standard of review – Correctness Evans v. Health Care Corporation of St. John’s, [2003] N.J. No. 61, Newfoundland and Labrador Supreme Court – Court of Appeal, March 6, 2003, Cameron and Welsh JJ.A. and Russell J. (ex officio) The complainant hospital ...

The applicants’ employer unsuccessfully sought an Order removing the arbitrator of a constructive dismissal claim and declaring void an arbitration between the applicant and the respondent employee on the grounds of reasonable apprehension of bias. The allegation of reasonable apprehension of bias was based on a lawyer in the arbitrator’s law firm obtaining information from a client and writing a letter on his behalf to a subsidiary of the parent corporation of a party to the arbitration. No reasonable apprehension of bias was found and the application was characterized as an opportunistic attack on the arbitration and attempt to derail the arbitration. Costs on a partial indemnity scale were awarded to the respondent to sanction the applicants’ conduct.

22. April 2003 0
Administrative law – Arbitration and award – Arbitrators – Judicial review – Reasonable apprehension of bias – Test A.T. Kearney Ltd. v. Harrison, [2003] O.J. No. 438, Ontario Superior Court of Justice, February 10, 2003, Lax J. Following a 26-day arbitration concerning a wrongful dismissal claim, the employer applied pursuant to the Arbitration Act, 1991 S.O. ...

The Police Complaint Commissioner (“PCC”), having arranged for a public hearing, retains the authority to unilaterally withdraw the complaint from the adjudicator, despite the objections of complainants. The office of the PCC was created to provide meaningful civilian oversight in police disciplinary matters. To carry out that mandate, the PCC is empowered with right to arrange a public hearing when the PCC concludes that such a hearing is in the public interest. Under the Police Act, R.S.B.C. 1996, c. 367, the PCC is the guardian of the public interest, and has the ongoing responsibility of determining whether in changing circumstances, it is still in the public interest that the hearing proceed. The consent of the adjudicator and/or complainant is not required before the notice of public hearing can be withdrawn. On a procedural issue, the Court held that the complainants, who were participants before the adjudicator, were entitled to be joined as respondents in the judicial review proceedings.

22. April 2003 0
Administrative law – Police – Disciplinary proceedings – Police Complaint Commissioner – Powers – Public hearings – Public interest test – Doctrine of incidental power – Judicial review – Procedural requirements British Columbia (Police Complaint Commissioner) v. Vancouver City Police Department, [2003] B.C.J. No. 399, British Columbia Supreme Court, February 21, 2003, Goepel J. On December ...