A physician holding a “Border Area License” allowing him to work in both the United States and Canada was suspended by the College of Physicians and Surgeons of New Brunswick for allegedly prescribing to patients that were not attended by him. Rather than replying directly to the College, the physician sought a judicial review of the College’s decision to suspend. In reviewing the College decision, the court concluded that in urgent circumstances the College has the jurisdiction to effect an immediate suspension of a physician’s license. The court held that the College should be given a great deal of deference in determining which circumstances constitute “an urgent matter requiring immediate action” and that their decision to suspend was reasonable. The application for judicial review was dismissed.

Administrative law – Physicians and surgeons – Disciplinary proceedings – Jurisdiction – Fairness – Suspensions – Judicial review application – Breach of procedural fairness – Standard of review – Reasonableness Loiselle v. College of Physicians and Surgeons of New Brunswick, [2003] N.B.J. No. 111, New Brunswick Court of Queen’s Bench, March 12, 2003, Garnett J. Loiselle ...

The Respondent was an employee of the Federal Government who suffered severe and long-standing respiratory problems. After a number of long term absences, the Respondent was dismissed on grounds that she was incapable of performing the duties of her office. The Respondent filed a complaint with the Canadian Human Rights Commission (“the Commission”). The Commission investigated the matter and dismissed the Respondent’s complaint on the grounds that discrimination had not been shown. The Respondent obtained a copy of the Commission’s investigation report and appealed the Commission’s decision to the Federal Court (Trial Division). The applications judge set aside the Commission’s decision to dismiss the claim on the grounds that the investigator had failed to include a great deal of information that he had obtained from the Ministry and consequently the Respondent did not have an opportunity to respond to the information. The Ministry appealed the Trial Division’s decision, arguing that the Commission’s decision-making process did not violate the Respondent’s right to procedural fairness. In allowing the appeal, the court noted that there was no basis for the notion that an investigator has a duty to disclose all information uncovered in the course of investigation to a complainant. Upon reviewing the investigation report, the court concluded that it was reasonable and adequate and that the Commission was entitled to some deference in their decision to dismiss a complaint.

Administrative law – Human rights complaints – Discrimination – Disability – Decisions of administrative tribunals – Human Rights Commission – Investigative bodies – Duty to disclose evidence – Fairness – Judicial review – Breach of procedural fairness – Standard of review – Reasonableness – Patent unreasonableness Hutchinson v. Canada (Minister of the Environment), [2003] F.C.J. No. 439, Federal ...

A Constable with the Calgary Police Service was transferred from the traffic division to the street division for failing to issue enough traffic violation tickets. The applicant argued that the transfer was disciplinary in nature, thus invoking the disciplinary procedures set out in part five of the Police Act, R.S.A. 2000 CP-17 (the “Act”). The applicant applied for a judicial review of the Chief of Police’s decision to transfer him. The court concluded that the decision to transfer the applicant was purely an administrative decision which was not subject to judicial review.

Administrative law – Police – Disciplinary proceedings – Performance expectation – Judicial review application – Administrative decisions Munday v. Calgary (City) Police Commission, [2003] A.J. No. 280, Alberta Court of Queen’s Bench, February 25, 2003, Sullivan J. The applicant was a Traffic Constable with the Calgary Police Service and held the rank of Senior Constable II. ...

A resident (“the resident”) in a housing co-operative appealed the decision of the general membership to terminate her membership in the co-operative, and to require her to vacate the unit. The court concluded that the co-op observed the principals of natural justice in terminating the resident’s membership and that the decision to terminate the membership was supported by the facts. Although the co-op refused to listen to all of the Resident’s evidence at the hearing, the court concluded that the co-operative had been reasonable in the way they dealt with the hearing and had complied with the Co-operative Association Act, R.S.B.C. 1999, c. 28 and the rules of natural justice in coming to their decision to evict the resident.

Administrative law – Housing co-operatives – Governance – Membership – Termination – Judicial review – Natural justice DaCosta v. City Edge Housing Co-operative, [2003] B.C.J. No. 571, British Columbia Supreme Court, March 14, 2003, Baker J. Ms. DaCosta and her children were residents of the City Edge Housing Co-operative (“the Co-op”). Ms. DaCosta was in a ...

A dentist (“Violette”), applied for judicial review of the decision of the New Brunswick Dental Society, in which the Society ordered that Violette be prohibited from treating patients with TMJ disorder and from practising orthodontics. The New Brunswick Court of Queen’s Bench dismissed the application, holding that the Court should not review the decision of the Discipline Committee when the Applicant had available other avenues of review which he had not pursued.

Administrative law – Dentists – Disciplinary proceedings – Governance – Judicial review – Self-governing professions Violette v. New Brunswick Dental Society, [2003] N.B.J. No. 129, New Brunswick Court of Queen’s Bench, March 26, 2003, Garnett J. Violette argued that the Board did not have legal training, and so he should not have to pursue his option ...

An appeal by a psychiatric patient (“Sousa”) from the decision of the Consent and Capacity Board, in which they found her incapable in respect of her required treatment for various mental and physical disorders, was dismissed on the basis that the Board’s decision was substantiated by the facts, and no error of fact or law was discerned.

Administrative law – Mental health – Substitute decision maker – Consent to treatment – Consent and Capacity Board – Adult in need of protection Sousa v. Klukach, [2003] O.J. No. 779, Ontario Superior Court of Justice, February 27, 2003, Greer J. Sousa was an involuntary resident of the Clarke Site of the Centre for Addiction and ...

The Saskatchewan Court of Queen’s Bench heard two appeals under section 41 of the Chiropractic Act, S.S. 1994, c.C-10 from a decision of the Discipline Committee finding the appellant chiropractors guilty of professional misconduct for following a pattern of practice of ordering the preparation of plain film radiographs by the use of X-rays when it was not clinically necessary or appropriate to do so. One of the appellants was also found guilty of following a pattern of practice of ordering the preparation of plain film radiographs on an expectation of financial reward to accrue to him as a result of his ownership in an X-ray medical imaging business. The court ultimately quashed both findings of guilt based on this “pattern of practice”.

Administrative law – Chiropractors – Disciplinary proceedings – Billing matters – Pattern of practice – Professional misconduct or conduct unbecoming – Judicial review – Administrative decisions – Standard of review of appellate court Thompson v. Chiropractors’ Assn. of Saskatchewan, [2003] S.J. No. 186, Saskatchewan Court of Queen’s Bench, March 21, 2003, Rothery J. The complaints arose ...

A mutual fund salesperson and his company (“Gill”) appealed the decision of the British Columbia Securities Commission’s finding that Gill had contravened certain provisions of the Securities Act. The main issue before the British Columbia Court of Appeal was whether it was reasonable for the Commission to have found that the receipts, financial summaries and loan agreements issued by Gill were securities within the meaning of the term “evidence of indebtedness” contained in section 1 of the Securities Act. The British Columbia Court of Appeal dismissed the appeal, holding that the Commission’s findings were reasonable, and in accord with the purpose of the Securities Act.

Administrative law – Decisions of administrative tribunals – Securities Commission – Evidence – Jurisdiction British Columbia (Securities Commission) v. Gill, [2003] B.C.J. No. 587, British Columbia Court of Appeal, March 19, 2003, Rowles, Ryan and Thackray JJ.A. Gill argued that the Commission, in holding that the receipts, financial summaries and loan agreements were securities, had ...

The Federal Court Trial Division struck Treaty Seven First Nations’ application for judicial review of the introduction to Parliament of Bill C-7, First Nations Governance Act. Treaty Seven alleged that the Bill was introduced to Parliament without full and meaningful consultation with the First Nation members of the Confederacy of Treaty Six First Nations and the Confederacy of Treaty Seven First Nations and, as such, sought orders in nature of certiorari and mandamus.

Administrative law – Aboriginal issues – Legislation – Government’s duty to consult – Procedural requirements – Judicial review application – No reasonable cause of action Treaty Seven First Nations v. Canada (Attorney General), [2003] F.C.J. No. 464, Federal Court of Canada – Trial Division, March 20, 2003, Gibson J. The Attorney-General of Canada brought an application ...

The College of Physicians and Surgeons of British Columbia succeeded on its appeal from a decision of the British Columbia Court of Appeal. The Supreme Court of Canada held that the Court of Appeal had erred in failing to set aside the order of the appeal judge’s decision overturning an Inquiry Committee’s finding of fact leading to a conviction for infamous conduct. The court held that the proper standard of review for findings of fact was reasonableness.

Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Suspensions – Judicial review – Standard of review – Reasonableness simpliciter Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, Supreme Court of Canada, April 3, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, ...