A psychiatric nurse (“Bennet”) was successful in his appeal from a decision of the Discipline Committee of the Registered Psychiatric Nurses’ Association of Manitoba (the “Association”). The court found that the Committee’s decision finding Bennet guilty of professional misconduct for having sexual intercourse with a former client was not reasonable as the Committee did not have sufficient evidence before it on the threshold issue of boundaries and/or therapeutic relationships.

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Administrative law – Psychiatric Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Sexual relations with former patient – Boundaries and therapeutic relationships – Judicial review – Decisions of administrative tribunals – Evidence Bennet v. Registered Psychiatric Nurses’ Assn. of Manitoba, [2003] M.J. No. 163, Manitoba Court of Appeal, May 15, 2003, Monnin, Hamilton ...

Bell brought a motion before a panel of the Canadian Human Rights Tribunal, which had been convened to hear complaints filed against Bell by female employees. Bell alleged that the Tribunal’s independence and impartiality were compromised by two powers: first, the power of the Canadian Human Rights Commission to issue guidelines that are binding on the Tribunal concerning “a class of cases”, and second, the power of the Tribunal Chairperson to extend Tribunal members’ terms in ongoing inquiries.

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Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human Rights Tribunal – Impartiality – Judicial review – Procedural requirements – Reasonable apprehension of bias Bell Canada v. Canadian Telephone Employees Assn., [2003] S.C.J. No. 36, Supreme Court of Canada, June 26, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel ...

A Registrar of the Chiropractors Association was charged with breaching the Chiropractic Act, R.S.M. 1980, c. 100 (“the Act”). An Inquiry Committee dismissed the charges and the Association sought judicial review. A Queen’s Bench judge concluded that the Inquiry Committee was bound as a matter of law by the Regulation to find Dr. Alevizos guilty of professional misconduct and the Respondent appealed to the Court of Appeal. The Court of Appeal held that absent express statutory provision, the final decision of a committee of a professional association properly empowered to make such a decision is not reviewable by the court on an application by the Association or its governing body. The appeal was therefore allowed.

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Administrative law – Chiropractors – Governance of professional association – Jurisdiction – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Compliance with legislation – Right of appeal of professional association Manitoba Chiropractors Assn. v. Alevizos, [2003] M.J. No. 206, Manitoba Court of Appeal, June 9, 2003, Twaddle, Monnin and Freedman JJ.A. The ...

An automotive sales and service business (“White Bear”) went into receivership and several of the company’s terminated employees filed complaints with the Labour Services offices of the Government of the Northwest Territories. The employees claimed wages owed and related benefits. An officer of the Labour Standards Board (the “Board”) examined their claims and issued certificates determining the amounts owing and declared that the employees were entitled to wage claims from the officers and directors of White Bear, pursuant to section 62 of the Labour Standards Act. The directors of White Bear appealed the ruling. The Board confirmed the certificates of the officer. The directors then unsuccessfully appealed those confirmations to the Northwest Territories Supreme Court.

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Administrative law – Labour Relations Board – Employment standards – Termination of employment – Termination package – Judicial review – Administrative decisions – Failure to provide reasons – Standard of review – Patent unreasonableness Buist v. Northwest Territories (Labour Standards Board), [2003] N.W.T.J. No. 30, Northwest Territories Supreme Court, May 30, 2003, O’Connor J. The Appellants ...

An aviation company operating tourist flights (“Delco”) was charged with (i) landing or taking off an aircraft in a built-up area of a city or town without authorization, and (ii) the use of Class F Special Use Restricted Airspace. The Appeal Panel of the Civil Aviation Tribunal held that the two sets of charges were founded upon the same acts and that, due to the legal nexus between the counts, Delco had been placed in a position of double jeopardy. The Appeal Panel stayed two of the charges. The Ministry appealed to the Federal Court who held that a legal double jeopardy only exists if there are no additional and distinguishing elements between two charges. Although arising from the same transaction, the Act created separate and distinct offences as a “built up area” is not necessarily “Class F Airspace” and vice versa. The decision of the Appeal Panel was quashed and the decision of the Tribunal member was reinstated.

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Administrative law – Decisions of administrative tribunals – Civil Aviation Tribunal – Penalties – Double jeopardy – Kienapple rule – Judicial review application – Compliance with legislation – Standard of review – Correctness Canada (Minister of Transport) v. Delco Aviation Ltd., [2002] F.C.J. No. 938, Federal Court of Canada – Trial Division, June 12, 2003, Blanchard ...

Devlin successfully appealed the decision of the Licence Appeal Tribunal (the “Tribunal”) which upheld a decision of the Registrar of Motor Vehicles (the “Registrar”) suspending Devlin’s driver’s licence pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 for medical reasons.

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Administrative law – Motor vehicles – Suspension of driver’s licence – Medical condition – Decisions of administrative tribunals – Medical Advisory Committee – Judicial review – Standard of review – Correctness Devlin v. Ontario (Registrar of Motor Vehicles), [2003] O.J. No. 2012, Ontario Superior Court of Justice, May 26, 2003, Pitt J. Devlin had experienced a single ...

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.

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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.

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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.

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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.

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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 ...