Actions taken by the Legislative Assembly relating to the tenure of an official appointed to carry out statutory duties attracted a duty of fairness. The Conflict of Interest Commissioner (the “Conflict Commissioner”), whose appointment was revoked by Commissioner of the Northwest Territories on the recommendation of the Legislative Assembly, was owed a duty of procedural fairness which included, at a minimum, the obligation to put her on notice that her position was at risk and to give her the right to be heard. The removal from office of the Conflict Commissioner was not an aspect of the Legislative Assembly’s privilege.

26. November 2002 0
Administrative law – Legislative assembly – Executive officers – Duty of fairness – Official appointments – Judicial review – Procedural requirements Roberts v. Northwest Territories (Commissioner), [2002] N.W.T.J. No. 81, Northwest Territories Supreme Court, October 23, 2002, Vertes J. The appointment of the Conflict Commissioner was for a four-year term. Fifteen months into her tenure, the Legislative ...

The Petitioner, British Columbia Chicken Marketing Board (the “Chicken Board”), sought an injunction requiring the Respondent Reid, an organic chicken producer, to cease production of chicken until he had received a grower’s licence and permit from the Chicken Board. The Court granted the injunction, finding that there was nothing in the legislative scheme to exclude organically grown chicken from the reach of the Chicken Board. Certified organic chicken is chicken.

26. November 2002 0
Administrative law – Permits and licences – Compliance with legislation – Judicial review – Compliance with legislation – Remedies – Injunctions British Columbia (Chicken Marketing Board) v. Reid, [2002] B.C.J. No. 2403, British Columbia Supreme Court, October 24, 2002, C.L. Smith J. The Petitioner Chicken Board is one of a number of marketing boards established for various ...

A university professor complained that he had been discriminated against under the Universities Academic Pension Plan on the basis of gender as the pension plan provided less of a monthly pension benefit to a married male employee and his spouse than a married female employee and her spouse where the employees and their spouses are of the same age and where the employees have made the same contributions to the Plan over the same length of time. The Chief Commissioner of the Alberta Human Rights and Citizenship Commission (the “Commissioner”) dismissed the complaint as being “without merit”. The standard of review with respect to the Commissioner’s decision on legal issues or matters of mixed fact and law is that of correctness while the standard for factual findings is reasonableness simpliciter. The Commissioner’s conclusion that the complaint was “without merit” was unreasonable. The Commissioner’s function is that of a gatekeeper. His role is to determine if there is sufficient evidence to justify passing a complaint on to a human rights panel. In this case, there was sufficient basis in the evidence that the Commissioner ought to have advanced this matter to the next stage.

26. November 2002 0
Administrative law – Human rights complaints – Discrimination – Gender – Judicial review – Standard of review – Correctness – Reasonableness simpliciter Mis v. Alberta (Human Rights and Citizenship Commission), [2002] A.J. No. 1320, Alberta Court of Queen’s Bench, October 29, 2002, Lee J. The applicant university professor sought to set aside a decision of the ...

A journalist made a request under the Act Respecting Access to Documents Held by Public Bodies and the Protection of Personal Information, R.S.Q., c. A-2.1 (the “Act”) for access to a document concerning the expenses of Members of the National Assembly which described the Member’s total payroll and expenses for employing staff and paying for professional services. The Commission d’accès à l’information (the “Commissioner”) refused disclosure of the information under ss. 34 and 57 of the Act; finding that the requested document had been prepared “for” a Member and could not be disclosed under s. 34 without the Member’s consent and that the Member could not be considered to constitute a public body within the meaning of s. 57.

26. November 2002 0
Administrative law – Access to information – Production of records – Public body – Definition – Judicial review – Standard of review – Reasonableness simpliciter Macdonell v. Quebec (Commission d’accès à l’information), [2002] S.C.J. No. 71, Supreme Court of Canada, November 1, 2002, McLachlin C.J., L’Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. A journalist ...

Ms. Ennis was hired as the manager of the Prince Albert Elks Club (the “Club”). She was fired approximately two weeks later after the Club learned that she was married to a convicted murderer. Ms. Ennis filed a complaint to the Human Rights Commission, alleging discrimination because of marital status. The Board of Inquiry did not find discrimination based on marital status as defined in the Regulations. The Court of Appeal disagreed.

22. October 2002 0
Administrative law – Human rights complaints – Discrimination – Marital status Saskatchewan (Human Rights Commission) v. Prince Albert Elks Club Inc., [2002] S.J. No. 552, Saskatchewan Court of Appeal, September 26, 2002, Vancise, Lane and Jackson JJ.A. Ms. Ennis married Mr. Ennis in 1993 while he was serving a life sentence at a penitentiary for ...

The Applicant attended at the Joyceville Penitentiary to visit her husband. A drug sniffing dog identified her as having drugs on her person and the guards would not allow the visit. Subsequently, a “risk assessment” was completed without notice to the Applicant and her visiting privileges were suspended. Her application for review was dismissed on the grounds that the issue was moot.

22. October 2002 0
Administrative law – Prisons – Visiting rights – Judicial review applications – Compliance with legislation – Mootness – Breach of procedural fairness McGahey v. Joyceville Penitentiary, [2002] F.C.J. No. 1281, Federal Court of Canada – Trial Division, September 19, 2002, Gibson J. On September 30, 2000, the Applicant and her daughter went to the Joyceville Institution ...

On January 29, 2001, the Manitoba Pharmaceutical Association found the Applicant guilty of unskilled practice of pharmacy and professional misconduct. The Applicant sought an order quashing the decision of the Council, arguing that there was a reasonable apprehension of bias on the part of the Discipline Committee resulting from an inappropriate involvement of its Registrar. The court found a reasonable apprehension of bias and quashed the decision of the Council.

22. October 2002 0
Administrative law – Pharmacists – Disciplinary proceedings – Billing practices – Boards and tribunals – Bias Sawchuk v. Manitoba Pharmaceutical Assn., [2002] M.J. No. 384, Manitoba Court of Queen’s Bench, September 25, 2002, Darichuk J. In the summer of 1998, a series of articles was published in a newspaper alleging fraudulent billing practices on the part ...

Mr. Helgesen was served with a 90-day administrative driving prohibition after refusing to provide a breath sample. Mr. Helgesen appealed to an adjudicator arguing that he had a reasonable excuse. The adjudicator disagreed and Mr. Helgesen petitioned for judicial review. The court concluded that the adjudicators decision was not patently unreasonable and the judicial review was dismissed.

22. October 2002 0
Administrative law – Motor vehicles – Refusal of breathalyser test – Suspension of driver’s licence – Adjudication – Judicial review application – Standard of review – Not patently unreasonable Helgesen v. British Columbia (Superintendent of Motor Vehicles), [2002] B.C.J. No. 2238, British Columbia Supreme Court, October 3, 2002, Macaulay J. Mr. Helgesen was driving a motor ...

A standard of correctness applies to an appeal from a chambers judge’s decision on a standard of review to be applied to a tribunal’s decision. The appellate court is in the same position as the reviewing judge. In this case, the chambers judge erred in concluding that a standard of reasonableness simpliciter applied to the tribunal and the appeal was allowed.

22. October 2002 0
Administrative law – Judicial review – Standard of review of appellate court – Correctness test – Not patently unreasonable Alberta (Minister of Municipal Affairs) v. Telus Communications Inc., [2002] A.J. No. 1068, Alberta Court of Appeal, September 4, 2002, Berger, O’Leary and Hunt JJ.A. The Municipal Government Board (“MGB”) determined that feature software used in ...

Once a fishing guide employee has shown he has been denied employment because of his mental disability, “prima facie discrimination” is established. The onus then shifts to the employer to demonstrate that the “standard” imposed by it (reasonable safely on the water) was a bona fide occupational requirement. In doing so, the employer’s direct experience with the employee is relevant evidence. Matter remitted to be determined on proper consideration of evidence.

22. October 2002 0
Administrative law – Human rights complaints – Disability – Evidence – Duty to accommodate – Occupational requirement Oak Bay Marina Ltd. (c.o.b. Painter’s Lodge) v. British Columbia (Human Rights Commission), [2002] B.C.J. No. 2029, British Columbia Court of Appeal, September 10, 2002, Newbury, Hall and Saunders JJ.A. A fishing guide with a bipolar affective disorder ...