The British Columbia Court of Appeal allowed the appeal of an employer (“BC Hydro”) and reinstated the decision of the Human Rights Commission (“HRC”) dismissing, at a preliminary stage, the complaint of an employee (“Lee”). The court held that the reviewing judge erred in failing to give due deference to the HRC by substituting her view of the evidence for the view of the HRC.

23. November 2004 0
Administrative law – Employment law – Appointment – Human rights complaints – Discrimination – Race – Decisions of administrative tribunals – Human Rights Commission – Evidenciary issues – Judicial review – Evidence Lee v. British Columbia (Attorney General), [2004] B.C.J. No. 1851, British Columbia Court of Appeal, September 10, 2004, Finch C.J.B.C., Prowse and Donald JJ.A. Lee is ...

The decision of an arbitrator appointed under the British Columbia Strata Property Act with respect to issues of liability was not clearly wrong and therefore the Applicant’s petition under the Judicial Review Procedure Act was dismissed. With respect to the arbitrator’s award of costs, the court held that the only costs the arbitrator was entitled to award were for party-and-party costs or special costs pursuant to the British Columbia Rules of Court. The arbitrator therefore erred in basing the award on the actual costs incurred. In addition, the arbitrator was not entitled to award costs in relation to the court applications made subsequent to the commencement of the arbitration and he also erred in law in awarding costs to the strata corporation based on the strata council bylaws. The court set aside the arbitrator’s award of costs and held that they should be assessed on a party-and-party basis.

26. October 2004 0
Administrative law – Judicial review – Decisions reviewed – Arbitration and award – Arbitrators – Right to award costs – Standard of review – Reasonableness simpliciter Blackmore v. Strata Plan VR-274, [2004] B.C.J. No. 1719, British Columbia Supreme Court, August 20, 2004, Goepel J. An arbitrator appointed under the British Columbia Strata Property Act, S.B.C. 1998, c. ...

The holder of expropriated placer mining interests (“Eckervogt”) appealed the decision of the Expropriation Compensation Board (the “Board”) on the grounds of lack of independence or a reasonable apprehension of bias where one of the Board members (“Greenwood”) accepted a position as prosecutor with the Ministry of the Attorney General while the expropriation decision was under consideration. The court dismissed the appeal holding that the suggestion that Greenwood’s duties of confidentiality and fidelity to the Crown as prosecutor would place him in conflict with his duties as adjudicator was remote and speculative and should not lead to disqualification.

28. September 2004 0
Administrative law – Decisions of administrative tribunals – Expropriation Compensation Board – Conflict of interest – Independence vs. impartiality – Judicial review – Reasonable apprehension of bias – test Eckervogt v. British Columbia (Minister of Employment and Investment), [2004] B.C.J. No. 1492, British Columbia Court of Appeal, July 20, 2004, Finch C.J.B.C., Ryan, Donald, Saunders and ...

Powerex applied for an order recognizing and enforcing an arbitration award made in Portland, Oregon against Alcan. Alcan had applied in the United States to have the award set aside. Alcan argued, and the Court agreed, that the enforcement of the award should be adjourned pending the outcome of the United States appeal, with security to be paid to Powerex.

24. August 2004 0
Powerex Corp. v. Alcan Inc., [2004] B.C.J. No. 1349, British Columbia Supreme Court, June 30, 2004, Brown J. In 1997, Alcan was required to supply a given amount of power to B.C. Hydro. Alcan designated Enron Power Marketing Inc. as the supplier, but remained liable for full and proper performance of its obligations and those ...

The Appellants’ application for a shellfish tenure was found to be akin to a licence application. Thus, the duty of fairness was minimal, and the trial judge did not err in holding that the Appellants were not entitled to make submissions or to have an oral hearing.

24. August 2004 0
Administrative law – Permits and licences – Judicial review – Natural justice – Procedural requirements and fairness – Discretion of delegated authority Lorindale Holdings Ltd. v. British Columbia Assets and Land Corp., [2004] B.C.J. No. 1271, British Columbia Court of Appeal, June 16, 2004, Donald, Hall and Lowry JJ.A. The Appellants were in the business ...

The Plaintiff “held an office” with the Defendant Municipality and therefore a duty of fairness applied to the administrative decision to terminate his employment. The Plaintiff was entitled to a hearing which he did not receive; therefore, the Defendant municipality did not comply with its duty of procedural fairness in terminating his employment.

24. August 2004 0
Administrative law – Employment law – Termination of employment – Wrongful dismissal – Hold an office – definition – Damages – Decisions of administrative tribunals – Municipal councils – Judicial review – Administrative decisions – Procedural requirements and fairness Reglin v. Creston (Town), [2004] B.C.J. No. 1218, British Columbia Supreme Court, June 10, 2004, Melnick J. The Plaintiff ...

An appeal pursuant to section 40(8) of the Mineral Tenure Act was allowed as the court found that the Chief Gold Commissioner erred in finding that there had not been a good faith attempt by the Appellant to comply with the staking requirements of the Act with respect to his mining claim and the Appellant’s non-compliance did not have a tendency to mislead

27. July 2004 0
Administrative law – Natural resources – Mining leases – Gold Commissioner – Staking requirements – Judicial review – Administrative decisions – Appeals – Compliance with legislation Tyerman v. Kreft, [2004] B.C.J. No. 1016, British Columbia Supreme Court, May 19, 2004, E.R.A. Edwards J. The Appellant brought an appeal pursuant to section 40(8) of the Mineral Tenure ...

An adjudicator’s decision which confirmed a driving prohibition under the Motor Vehicle Act was set aside on the basis that the adjudicator erred in relying on a Report to Crown Counsel which did not form part of a sworn or affirmed report from a peace officer, as required by the Act

27. July 2004 0
Administrative law – Motor vehicles – Suspension of driver’s licence – Adjudication – Decisions of administrative tribunals – Judicial review – Compliance with legislation – Procedural requirements and fairness Neill v. British Columbia (Superintendent of Motor Vehicles), [2004] B.C.J. No. 1197, British Columbia Supreme Court, June 10, 2004, Cullen J. The Petitioner sought a review of an ...

The Petitioner, the Association of Professional Engineers and Geoscientists of British Columbia (the “APEGBC”) had standing to bring the Petition since the enabling legislation separated the investigative, prosecutorial and adjudicative functions of the APEGBC. The clear purpose of the Act was to establish the independence and impartiality of the three functions. The Petitioner was not seeking to recover judgment against itself; rather it was seeking a determination of the correctness of a ruling made by a statutorily created panel with distinct functions and responsibilities. However, the court could not conclude that the panel’s decision represented an error on the face of the record.

27. July 2004 0
Administrative law – Engineers – Governance – Functions of a self-governing body – Discipline committee decisions – Statutory provisions – Judicial review – Compliance with legislation – Remedies – Certiorari Assn. of Professional Engineers and Geoscientists of British Columbia v. Visser, [2004] B.C.J. No. 1053, British Columbia Supreme Court, May 25, 2004, Cullen J. The APEGBC sought, ...

The court declined to quash the decision of the Discipline Panel of the Association of Professional Engineers and Geoscientists of British Columbia (the “APEGBC”) which had made a finding of unprofessional conduct on the part of the Appellant as a result of him signing, sealing and submitting structural drawings for a building permit and preparing support design calculations which did not conform to the British Columbia Building Code. The court held that the charge was sufficiently particularized and there was no merit to the allegation that the Panel found misconduct based on elements not enumerated in the charge. While the Respondent did breach a duty to disclose documentation, the Appellant’s right to make full answer and defence was not impaired as a result. It was not unreasonable for the Panel to find that the Appellant demonstrated unprofessional conduct and there was no error in the penalty imposed.

27. July 2004 0
Administrative law – Engineers – Disciplinary proceedings – Competence – Professional misconduct or conduct unbecoming – Evidence – Penalties – Suspensions – Judicial review – Administrative decisions – Hearings – Natural justice – Disclosure – Standard of review – Correctness – Reasonableness simpliciter Familamiri v. Assn. of Professional Engineers and Geoscientists of British Columbia, [2004] B.C.J. ...