The Petitioner sought a judicial review of a decision of an adjudicator who, in a “letter decision”, concluded that the Petitioner had failed to comply with the demand under section 254 of the Criminal Code to supply a breath sample and imposed a prohibition of driving for 90 days. The test on judicial review was whether the decision was patently unreasonable. The court held that there was no evidence that the officer read the written demand to the accused and therefore the adjudicator’s decision to impose a 90-day prohibition was patently unreasonable.

28. October 2003 0
Administrative law – Motor vehicles – Refusal of breathalyzer test – Suspension of driver’s licence – Adjudication – Evidence – Judicial review – Standard of review – Patent unreasonableness Hewitt v. British Columbia (Superintendent of Motor Vehicles), [2003] B.C.J. No. 1877, British Columbia Supreme Court, May 9, 2003, Williamson J. The Petitioner sought a judicial review of ...

The Appellant appealed the reference hearing judge’s decision to refuse to grant a firearms licence. In December of 1997, the Appellant was issued a Firearms Acquisition Certificate valid to December 2002. As a result of an allegation of historical sexual assault, the Chief Firearms Officer examined the Appellant’s criminal record, which included convictions for assaults 13 and 18 years earlier. His licence to possess firearms was revoked on the grounds that he had “demonstrated a history of behaviour that includes violence”. The Appellant applied for a reference before a judge of the Ontario Court of Justice. The decision was upheld and he appealed that decision to the Ontario Superior Court of Justice, who held that the Appellant had not satisfied the court that cancelling the revocation was not justified.

28. October 2003 0
Administrative law – Firearms registration – Firearms – Licences – Revocation – Evidence – Prior criminal charges – Public safety – Statutory interpretation – Legislation – Retrospective operation R. v. D.L.B., [2003] O.J. No. 2471, Ontario Superior Court of Justice, February 12, 2003, Durno J. 45-year-old D.B. had used firearms for a long time. In 1992, ...

Mrs. Lewis appealed the Director of the Department of Labour’s decision cancelling an officer’s decision that the School Board had wrongfully discriminated against the appellant. In 1996, Mrs. Lewis suspected that the cause of her health problems arose from the modular classroom to which she had recently been assigned and complained to the Board of Education. The Board declared that the classroom was safe. Mrs. Lewis filed a complaint with the Occupational Health and Safety Division of the Department of Labour, claiming that the Board had discriminated against her by failing to find her a new classroom. The tribunal held that the Board had failed to provide good and sufficient reasons for its failure to provide an alternative classroom. The Board appealed the decision and was successful on appeal. Mrs. Lewis appealed to the Saskatchewan Court of Queen’s Bench, who held that the adjudicator committed no error in concluding that there was no discriminatory action by the Board against Mrs. Lewis. Mrs. Lewis’ appeal was dismissed.

28. October 2003 0
Administrative law – Labour law – Working conditions – Schools – Teachers – Discrimination Lewis v. Regional School Division No. 4, [2003] S.J. No. 526, Saskatchewan Court of Queen’s Bench, July 31, 2003, Matheson J. After being assigned to the modular classroom in 1996, Mrs. Lewis began to experience persistent health problems. Her family doctor ...

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 ...

The Plaintiff Nunavut Tunngavik Incorporated (“NTI”), in its action against the Federal Government, claimed that the Firearms Act, R.S.C. 1995, c.39, legislation which introduced a universal licensing and registration scheme for the possession, use and purchase of all firearms and ammunition, unlawfully infringed upon the rights guaranteed to Inuit under the Nunavut Land Claims Agreement (“NLCA”). Pending trial, the court allowed NTI’s application for an interlocutory order staying application of provisions of the Firearms Act and Criminal Code, R.S.C. 1985 c.46, on the basis that the alleged infringement of a treaty right may cause collateral damage to important Inuit interests.

23. September 2003 0
Administrative law – Aboriginal issues – Firearms registration – Infringement on Aboriginal rights – Damages – Stay of proceedings Nunavut Tunngavik Inc. v. Canada (Attorney General), [2003] Nu.J. No. 2, Nunavut Court of Justice, July 8, 2003, Kilpatrick J. The Plaintiff Nunavut Tunngavik Incorporated (“NTI”), on behalf of Inuit enrolled as beneficiaries under the Nunavut Land ...