A former employee of the Minister of Agriculture, Fisheries and Food (“Yuan”) petitioned pursuant to the Judicial Review Procedure Act for declarations concerning the dismissal of his complaint pursuant to the Human Rights Code. Yuan also sought an Order remitting the issue of his complaint back to the Human Rights Commission for consideration. The British Columbia Supreme Court dismissed his Petition.

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Administrative law – Human rights complaints – Discrimination – Duty to accommodate – Procedural fairness – Judicial review application – Investigative bodies – Fairness Yuan v. British Columbia (Human Rights Commission), [2003] B.C.J. No. 687, British Columbia Supreme Court, March 26, 2003, Melvin J. Yuan contended that the Commission, which had conducted an investigation and determined that ...

The B.C. Court of Appeal dismissed an appeal by an organisation of individuals holding water licences (“Red Mountain”) against the cancellation of an integrated watershed management plan and a decision of the District Manager of the Arrow Forest District to permit the building of a logging road in the watershed supplying domestic water to the members of Red Mountain. The appeal was dismissed on the basis that Red Mountain could not rely on the doctrine of legitimate expectations to resurrect the Watershed Management Plan, and further that the issues surrounding the building of the road in the watershed area had been made moot.

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Administrative law – Environmental issues – Watershed management – Water licence holders – Forest practices – Judicial review – Natural justice – Legitimate expectations Red Mountain Residents and Property Owners Assn. v. British Columbia (Minister of Forests, British Columbia Forest Service, Arrow Forest District), [2003] B.C.J. No. 659, British Columbia Court of Appeal, March 26, 2003, ...

The appeal of a worker (“Gauthier”) of the decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission, wherein they held that the average earnings he lost through a work-related injury should be calculated considering the period during which he was not receiving any employment income, was dismissed.

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Administrative law – Workers compensation – Statutory provisions – Average earnings – Method of calculation – Judicial review – Standard of review – Correctness Gauthier v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2003] N.B.J. No. 139, New Brunswick Court of Appeal, April 10, 2003, Drapeau C.J.N.B., Deschênes and Robertson JJ.A. The New Brunswick Court ...

This appeal was one of a set of representative appeals challenging the constitutionality of Alberta’s Administrative Licence Suspension Program under the Traffic Safety Act, R.S.A. 2000, c. T-6.4. The appellants argued that driving a vehicle should constitute a liberty interest falling within the scope of the “life, liberty or security of the person” phrase used in section 7 of the Canadian Charter of Rights and Freedoms. The Alberta Court of Appeal dismissed the appeal, and in so doing they reviewed the law of reconsideration.

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Administrative law – Motor vehicles – Suspension of driver’s licence – Charter of Rights – Life liberty or security of the person – Law of reconsideration Thomson v. Alberta (Transportation and Safety Board), [2003] A.J. No. 420, Alberta Court of Appeal, April 11, 2003, Fraser C.J.A., Picard and Paperny JJ.A. As a general proposition, leave to reconsider ...

An appeal by the litigation guardian of a student (“Zachary”) from the Order of a trial judge dismissing an application for judicial review of the School Board’s decision to transfer Zachary to a different school for safety reasons while an appeal from the decision to change his placement under provisions relating to exceptional pupils was still outstanding. The Ontario Court of Appeal dismissed the appeal as moot.

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Administrative law – School boards – Transfer of students – Safety of students – Judicial review application – Mootness Bonnah (Litigation guardian of) v. Ottawa-Carleton District School Board, [2003] O.J. No. 1156, Ontario Court of Appeal, April 8, 2003, Doherty, Austin and Charron JJ.A. The court stated that it would not normally hear moot appeals, but ...

A prison inmate (“Farrows-Shelley”), sued Correctional Services Canada (“CSC”) in negligence for allegedly allowing him to be double bunked with an individual who, Farrows-Shelley suspected, was known to have proclivities to violence and to be infected with hepatitis C and HIV. The Federal Court of Canada dismissed the action, holding that there was no evidence to establish a violent tendency on the part of Leonard Welch, and that there was no evidence that he was indeed infected with hepatitis C and HIV. The court refused to accept the argument of the Plaintiff that this should be a test case to expand the law, in recognising a duty to warn as distinct from a duty to protect.

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Administrative law – Prisons – Dangerous prisoners – Duty to protect – Duty to warn Farrows-Shelley v. Canada, [2003] F.C.J. No. 574, Federal Court of Canada – Trial Division, April 8, 2003, Aronovitch, Prothonotary The court quoted the decision of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681, wherein the ...

The Applicant was a trainer of thoroughbred horses who made an allegation that his horse had been fouled in a race. The Appeal Tribunal concluded that there had been no foul and the Applicant filed for judicial review on the grounds that the decision was patently unreasonable and that natural justice had been breached due to the tribunal’s bias. The court concluded that on the basis of the record, the members of the Appeal Tribunal made their decision in a fair manner and that there was no reasonable apprehension of bias.

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Administrative law – Horse racing – Judicial review – Administrative decisions – Natural justice – Bias – Familiarity – Jurisdiction – Standard of review – Patent unreasonableness Greenwood v. Alberta (Appeals Tribunal), [2003] A.J. No. 471, Alberta Court of Queen’s Bench, April 15, 2003, Belzil J. The Applicant was a trainer of a thoroughbred horse that ...

Poulin had brought an application to the Workers’ Compensation Board for a determination that a civil claim was barred pursuant to s. 68(1) of the Act. The application was dismissed by the Board and Poulin sought judicial review. The Court of Appeal held that the Board acted within its jurisdiction. In the result, the judicial review application was dismissed.

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Administrative law – Workers compensation – Worker – Definition – Liability of sole director of a corporation – Statutory provisions – Privative clauses – Judicial review – Administrative decisions – Jurisdiction – Standard of review – Patent unreasonableness – Evidence Poulin v. Manitoba (Workers’ Compensation Board), [2003] M.J. No. 122, Manitoba Court of Appeal, April 23, 2003, ...

The court held that a policy requiring employees to undergo drug or alcohol testing, where the potential consequences of a positive test include the loss of employment, was considered a prima facie violation of section 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000 c. H-14 (the “Act”). However, where testing constitutes a bona fide occupational requirement, the section 7(1) prohibition against discrimination based on a physical or mental disability does not apply. The Court held that being drug and alcohol free is a bona fide requirement for employees of a small remote Metis Settlement with ongoing concerns about serious drug and alcohol abuse by community members.

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Administrative law – Human rights complaints – Discrimination – Disability – Drug and alcohol testing – Aboriginal issues – Judicial review – Standard of review – Correctness Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement, [2003] A.J. No. 484, Alberta Court of Queen’s Bench, April 17, 2003, Bielby J. Elizabeth Metis Settlement (“the Settlement”) is ...

Members of the Petitioner British Columbia Teachers’ Federation (“BCTF”) joined a rally in protest of the decision of the legislature to pass the Education Services Collective Agreement Act, S.B.C. 2002 c. 1. The British Columbia Public Schools Employers Association (“BCPSEA”) brought an application before the Labour Relations Board to declare the attendance at the anticipated rally a breach of section 57 of the Labour Relations Code, R.S.B.C. 1996, c. 244. The Labour Relations Board declared that a cessation of work would contravene section 57(1) of the Labour Relations Code. The Petitioners raised an argument that the definition of strike was unconstitutional. The Attorney General of BC brought a preliminary objection, submitting that the court ought to refer the constitutional question back to the Board. The court held that tribunals have the jurisdiction to consider the constitutionality of their enabling statutes and remitted the matter to the Board.

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Administrative law – Boards and tribunals – Labour Relations Board – Jurisdiction to hear constitutional questions relating to enabling statute British Columbia Teachers’ Federation v. British Columbia (Attorney General), [2003] B.C.J. No. 785, British Columbia Supreme Court, April 8, 2003, Satanove J. On January 28, 2002, members of the BCTF left the premises of their ...