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.

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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.

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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 ...

A member of the Law Society of British Columbia and the Certified Accountants Association of British Columbia (the “Appellant”), brought an action for damages for defamation, malicious prosecution, negligence, misfeasance in public office etc. against the members of the Professional Conduct Inquiry Committee and the Director of Ethics of the Institute of Chartered Accountants (the “Respondents”) after they forwarded an investigator’s report to the Law Society and Certified General Accountants Association. The B.C. Court of Appeal held that a person who provides information to a professional disciplinary body about the conduct of one of its members, is not liable in an action brought by that member. The communication is subject to absolute privilege, which provides a defence to all claims. In addition, while the filing of a jury notice is an important factor to consider in assessing whether a matter is appropriate for summary trial, and may “hold an extra value in cases of defamation”, it is not a bar to bringing an application for summary trial pursuant to Rule 18A. The trial judge exercised his discretion in determining that the matter was appropriate for disposition by summary trial and made no error in principle in deciding the case under Rule 18A.

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Administrative law – Accountants – Disciplinary proceedings – Investigative bodies – Powers – Jurisdiction – Absolute privilege – Practice and procedure – Jury notice – Summary proceedings Hung v. Gardiner, [2003] B.C.J. No. 1048, British Columbia Court of Appeal, May 6, 2003, Ryan, Hall and Levine JJ.A. The Appellant is a member of the Law Society of ...

The Hospital Labour Disputes Arbitration Act (the “HLDAA”)dictates that disputes over collective agreements in Ontario hospitals and nursing homes have to be resolved by compulsory arbitration. The Minister of Labour appointed retired judges to chair arbitration boards. The Respondents, Canadian Union of Public Employees and Service Employees International Union, objected to the appointments on the basis that the retired judges lacked expertise, experience, tenure, and independence from government. The Appellant Minister of Labour in exercising his power of appointment under the HLDAA is required to be satisfied that the prospective chairpersons are not only independent and impartial but possess appropriate labour relations expertise and are recognised in the labour relations community as generally acceptable to both management and labour. The appropriate standard of review is patent unreasonableness. The majority found that the appointments were patently unreasonable because the Minister expressly excluded relevant factors that went to the heart of the legislative scheme.

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Administrative law – Labour law – Arbitrators – Appointment – Bias – Ministerial powers – Judicial review – Statutory powers – Compliance with legislation – Standard of review – Patent unreasonableness Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] S.C.J. No. 28, Supreme Court of Canada, May 16, 2003, McLachlin C.J. and Gonthier, Iaccobucci, Major, Bastarache, ...

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 ...