A physician (“Dr. Cimolai”) successfully appealed the decision of a chambers judge dismissing his application for a judicial review of a decision of the Board of Directors of Children’s and Women’s Health Centre which had terminated his hospital privileges on the basis of the finding of harassment. The chambers judge had ruled that the doctor had available to him an “adequate alternative remedy” in the form of an appeal to the Hospital Appeal Board, and that for this reason he was not entitled to judicial review. The Court of Appeal disagreed with the findings of the chambers judge.

26. August 2003 0
Administrative law – Physicians and surgeons – Hospital privileges – Judicial review – Procedural fairness – Public body – Definition – Remedies – Certiorari Cimolai v. Children’s and Women’s Health Centre of British Columbia, [2003] B.C.J. No. 1313, British Columbia Court of Appeal, June 6, 2003, Southin, Newbury and Hall JJ.A. The Court of Appeal considered the question ...

Owen was found not criminally responsible on account of mental disorder for the offence of second degree murder committed in 1978 while he was in a psychotic state induced by drug abuse. He was then detained in various mental health institutions and was gradually released into the community. However, he began to commit violent offences upon release. In 2000, the Ontario Review Board (the “Board”), concluded that Owen continued to constitute a significant danger to the safety of the public and ordered his continued detention at the Kingston Psychiatric Hospital. At the Court of Appeal, the Crown wished to tender fresh Affidavit evidence alleging that, since the date of the Board hearing, Owen had punched another patient, threatened to kill another patient, and was found in the possession of prohibited drugs. The Court of Appeal declined to admit this fresh evidence, and proceeded to review the Board’s Order based on evidence available at the original hearing. The Court of Appeal allowed the appeal and set aside the Board’s Order as unreasonable and made a direction that Owen be absolutely discharged. The Supreme Court of Canada allowed the appeal and reinstated the decision of the Board.

26. August 2003 0
Administrative law – Decisions of administrative tribunals – Review Board – Adult in need of protection – Detention – Danger to public – Fresh evidence – Admissibility – Judicial review – Standard of review – Reasonableness simpliciter R. v. Owen, [2002] S.C.J. No. 31, Supreme Court of Canada, June 6, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, ...

The Respondent (“Starson”) was admitted to hospital after being found not criminally responsible for making death threats, whereupon the Ontario Review Board ordered his detention for 12 months. At that time, Starson refused medical treatment proposed by his psychiatrist for his bipolar disorder. The Consent and Capacity Board of Ontario (the “Board”) held that Starson lacked the capacity to refuse treatment. The Ontario Superior Court overturned the finding of incapacity and the Court of Appeal upheld this finding. The majority of the Supreme Court of Canada dismissed the appeal, finding that the Board misapplied the statutory test for capacity and improperly allowed its own conception of Starson’s best interests to influence its finding. The Board’s finding of incapacity could not be upheld.

26. August 2003 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Mental health – Substitute decision maker – Right to refuse medical treatment – Capacity – Test – Judicial review – Standard of review – Reasonableness Starson v. Swayze, [2003] S.C.J. No. 33, Supreme Court of Canada, June ...

The College of Physicians and Surgeons of Ontario (the “College”) appealed the decision of the Divisional Court, quashing a newly Amended Notice of Hearing on the basis that the Registrar for the College had proffered the Amended Notice of Hearing in the middle of a disciplinary hearing in the absence of statutory authority to do so. The appeal was dismissed and the decision of the Divisional Court upheld. The issue raised on appeal was whether the Registrar of the College had the jurisdiction to refer new allegations of professional misconduct and incompetence of a member of the College to the Discipline Committee after a discipline hearing had already commenced against that member.

26. August 2003 0
Administrative law – Physicians and surgeons – Disciplinary proceedings – Fairness – Statutory provisions – Judicial review – Procedural requirements – Amendment of notice of hearing – Jurisdiction Henderson v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 2213, Ontario Court of Appeal, June 5, 2003, Weiler, Rosenberg and Armstrong, JJ.A. Allegations of professional ...

An employee (“Baxandall”) of R.J.V. Gas Field Services Ltd., resigned his employment and went into the same business as his former employer, the manufacturer of polyurethane panels. R.J.V. moved for an interlocutory injunction to prevent Baxandall from soliciting or selling to the customers of R.J.V., and the application was granted by the chambers judge. At a later hearing, the chambers judge modified the injunction, deciding to allow Baxandall to sell to the customers of R.J.V. but continuing to block him from canvassing or soliciting those customers, pending the trial of the action. Baxandall and his new company successfully appealed the original Order with the Court of Appeal ordering that the injunction be vacated.

26. August 2003 0
Administrative law – Employment law – Post employment obligations – Restraint of trade – Remedies – Injunctions – Judicial review – Standard of review – Correctness R.J.V. Gas Field Services Ltd. v. Baxandall, [2003] A.J. No. 731, Alberta Court of Appeal, June 5, 2003, Russell and Wittmann J.J.A. and Smith J. (ad hoc) In granting the original ...

A helicopter pilot (“Veideman”) was unsuccessful in his application for judicial review of the decision of the Appeal Panel of the Civil Aviation Tribunal (the “Tribunal”) where the court found that the Tribunal had not erred in concluding that Veideman had not exercised due diligence to prevent the contravention of a regulation by unlawfully operating an aircraft at a distance of less than 500 feet from a person

Administrative law – Pilots – Disciplinary proceedings – Due diligence – Evidence – Judicial review application – Administrative decisions – Standard of review – Reasonableness simpliciter Veideman v. Canada (Minister of Transport), [2003] F.C.J. No. 751, Federal Court of Canada – Trial Division, May 12, 2003, Snider J. Veideman was a helicopter pilot transporting skiers in ...

The applicant (“Smith”) was unsuccessful in his application seeking an order that the Ombudsman reconsider its decision with respect to Smith’s complaint that the Alberta Department of Energy unfairly administered Smith’s application for a Small Power Research Allocation. The court found that no lack of jurisdiction had been shown on the part of the Ombudsman and the court was unwilling to substitute its own conclusions for those of the Ombudsman.

Administrative law – Judicial review – Ombudsman – Jurisdiction – Privative clauses Smith v. Alberta (Ombudsman), [2003] A.J. No. 688, Alberta Court of Queen’s Bench, May 29, 2003, Lee J. In 1998, the Small Power Research and Development Act and Regulations were enacted by the Alberta Government to provide the authority to allocate to an eligible ...

The Board of School Trustees of School District No. 81 (the “School Board”) was successful in its appeal of an arbitration award in which the arbitrator found that the benefit plan of the School Board (the “Plan”) was discriminatory under section 15(1) of the Canadian Charter of Rights and Freedoms and the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210 in restricting dual coverage where both spouses were teachers. The court found that the Plan was not discriminatory as there was no deprivation of a benefit.

Administrative law – Teachers – Labour law – Arbitration – Benefit plans – Dual coverage – Judicial review – Human rights complaints – Charter of Rights – Discrimination British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation, [2003] B.C.J. No. 1272, British Columbia Court of Appeal, May 30, 2003, Huddart, Braidwood and Thackray JJ.A. The Fort Nelson ...

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 ...