An appeal by the litigation guardian of a student (“Zachary”) from the Order of a trial judge dismissing an application for judicial review of the School Board’s decision to transfer Zachary to a different school for safety reasons while an appeal from the decision to change his placement under provisions relating to exceptional pupils was still outstanding. The Ontario Court of Appeal dismissed the appeal as moot.

24. June 2003 0
Administrative law – School boards – Transfer of students – Safety of students – Judicial review application – Mootness Bonnah (Litigation guardian of) v. Ottawa-Carleton District School Board, [2003] O.J. No. 1156, Ontario Court of Appeal, April 8, 2003, Doherty, Austin and Charron JJ.A. The court stated that it would not normally hear moot appeals, but ...

A prison inmate (“Farrows-Shelley”), sued Correctional Services Canada (“CSC”) in negligence for allegedly allowing him to be double bunked with an individual who, Farrows-Shelley suspected, was known to have proclivities to violence and to be infected with hepatitis C and HIV. The Federal Court of Canada dismissed the action, holding that there was no evidence to establish a violent tendency on the part of Leonard Welch, and that there was no evidence that he was indeed infected with hepatitis C and HIV. The court refused to accept the argument of the Plaintiff that this should be a test case to expand the law, in recognising a duty to warn as distinct from a duty to protect.

24. June 2003 0
Administrative law – Prisons – Dangerous prisoners – Duty to protect – Duty to warn Farrows-Shelley v. Canada, [2003] F.C.J. No. 574, Federal Court of Canada – Trial Division, April 8, 2003, Aronovitch, Prothonotary The court quoted the decision of Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, [1998] O.J. No. 2681, wherein the ...

The Applicant was a trainer of thoroughbred horses who made an allegation that his horse had been fouled in a race. The Appeal Tribunal concluded that there had been no foul and the Applicant filed for judicial review on the grounds that the decision was patently unreasonable and that natural justice had been breached due to the tribunal’s bias. The court concluded that on the basis of the record, the members of the Appeal Tribunal made their decision in a fair manner and that there was no reasonable apprehension of bias.

24. June 2003 0
Administrative law – Horse racing – Judicial review – Administrative decisions – Natural justice – Bias – Familiarity – Jurisdiction – Standard of review – Patent unreasonableness Greenwood v. Alberta (Appeals Tribunal), [2003] A.J. No. 471, Alberta Court of Queen’s Bench, April 15, 2003, Belzil J. The Applicant was a trainer of a thoroughbred horse that ...

Poulin had brought an application to the Workers’ Compensation Board for a determination that a civil claim was barred pursuant to s. 68(1) of the Act. The application was dismissed by the Board and Poulin sought judicial review. The Court of Appeal held that the Board acted within its jurisdiction. In the result, the judicial review application was dismissed.

24. June 2003 0
Administrative law – Workers compensation – Worker – Definition – Liability of sole director of a corporation – Statutory provisions – Privative clauses – Judicial review – Administrative decisions – Jurisdiction – Standard of review – Patent unreasonableness – Evidence Poulin v. Manitoba (Workers’ Compensation Board), [2003] M.J. No. 122, Manitoba Court of Appeal, April 23, 2003, ...

The court held that a policy requiring employees to undergo drug or alcohol testing, where the potential consequences of a positive test include the loss of employment, was considered a prima facie violation of section 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000 c. H-14 (the “Act”). However, where testing constitutes a bona fide occupational requirement, the section 7(1) prohibition against discrimination based on a physical or mental disability does not apply. The Court held that being drug and alcohol free is a bona fide requirement for employees of a small remote Metis Settlement with ongoing concerns about serious drug and alcohol abuse by community members.

24. June 2003 0
Administrative law – Human rights complaints – Discrimination – Disability – Drug and alcohol testing – Aboriginal issues – Judicial review – Standard of review – Correctness Alberta (Human Rights and Citizenship Commission) v. Elizabeth Metis Settlement, [2003] A.J. No. 484, Alberta Court of Queen’s Bench, April 17, 2003, Bielby J. Elizabeth Metis Settlement (“the Settlement”) is ...

Members of the Petitioner British Columbia Teachers’ Federation (“BCTF”) joined a rally in protest of the decision of the legislature to pass the Education Services Collective Agreement Act, S.B.C. 2002 c. 1. The British Columbia Public Schools Employers Association (“BCPSEA”) brought an application before the Labour Relations Board to declare the attendance at the anticipated rally a breach of section 57 of the Labour Relations Code, R.S.B.C. 1996, c. 244. The Labour Relations Board declared that a cessation of work would contravene section 57(1) of the Labour Relations Code. The Petitioners raised an argument that the definition of strike was unconstitutional. The Attorney General of BC brought a preliminary objection, submitting that the court ought to refer the constitutional question back to the Board. The court held that tribunals have the jurisdiction to consider the constitutionality of their enabling statutes and remitted the matter to the Board.

24. June 2003 0
Administrative law – Boards and tribunals – Labour Relations Board – Jurisdiction to hear constitutional questions relating to enabling statute British Columbia Teachers’ Federation v. British Columbia (Attorney General), [2003] B.C.J. No. 785, British Columbia Supreme Court, April 8, 2003, Satanove J. On January 28, 2002, members of the BCTF left the premises of their ...

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.

27. May 2003 0
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.

27. May 2003 0
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.

27. May 2003 0
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.

27. May 2003 0
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 ...