The Law Society of New Brunswick succeeded on its appeal in having the findings of the Court of Appeal set aside and the sanction of disbarment of a lawyer who had been found to have committed professional misconduct reinstated

Administrative law – Barristers and solicitors – Disciplinary proceedings – Disbarment – Boards and tribunals – Judicial review – Standard of review – Reasonableness simpliciter Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, Supreme Court of Canada, April 3, 2003, McLachlin C.J. and Iacobucci, Major, Binnie, Arbour, LeBel and Deschamps JJ. The respondent, Mr. ...

The Police Complaint Commissioner (“PCC”), having arranged for a public hearing, retains the authority to unilaterally withdraw the complaint from the adjudicator, despite the objections of complainants. The office of the PCC was created to provide meaningful civilian oversight in police disciplinary matters. To carry out that mandate, the PCC is empowered with right to arrange a public hearing when the PCC concludes that such a hearing is in the public interest. Under the Police Act, R.S.B.C. 1996, c. 367, the PCC is the guardian of the public interest, and has the ongoing responsibility of determining whether in changing circumstances, it is still in the public interest that the hearing proceed. The consent of the adjudicator and/or complainant is not required before the notice of public hearing can be withdrawn. On a procedural issue, the Court held that the complainants, who were participants before the adjudicator, were entitled to be joined as respondents in the judicial review proceedings.

22. April 2003 0
Administrative law – Police – Disciplinary proceedings – Police Complaint Commissioner – Powers – Public hearings – Public interest test – Doctrine of incidental power – Judicial review – Procedural requirements British Columbia (Police Complaint Commissioner) v. Vancouver City Police Department, [2003] B.C.J. No. 399, British Columbia Supreme Court, February 21, 2003, Goepel J. On December ...

The defendant doctors were successful on an application for summary dismissal of the plaintiff doctor’s action for defamation with respect to letters written to the College of Physicians and Surgeons of British Columbia about the plaintiff’s medical practices

Administrative law – Physicians and surgeons – Governance – Statutory provisions – Disciplinary proceedings – Defamation – Boards and tribunals – Absolute privilege – Qualified privilege Schut v. Magee, [2003] B.C.J. No. 102, British Columbia Supreme Court, January 20, 2003, Kirkpatrick J. The plaintiff doctor brought an action against the defendant doctors and members of the ...

The Appellant was charged with professional misconduct after publicly demonstrating with a group outside of the Planned Parenthood Sexual Health Centre in Regina. Prior to the hearing, the applicant sought a writ of prohibition to prohibit the Discipline Committee from proceeding with the hearing into his conduct on the grounds that his Charter rights would be infringed if the Discipline Committee determined that whatever occurred while he was picketing amounted to professional misconduct within the meaning of the Act. The court concluded that the Act provides an alternative remedy with rights of appeal for the member being disciplined and that the alternative remedy was adequate. The applicant’s application was dismissed in its entirety and the Association was awarded costs.

25. March 2003 0
Administrative law – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Charter of Rights – Remedies – Alternative remedies – Self-governing professions – Statutory provisions Whatcott v. Saskatchewan Assn. of Licensed Practical Nurses, [2003] S.J. No. 54, Saskatchewan Court of Queen’s Bench, January 7, 2003, Gunn J. The applicant was a member of the ...

The Appellant pharmacists were the sole shareholders in a pharmaceutical distribution company. The company was convicted of income tax evasion under the Income Tax Act. Following the company’s conviction, the Appellants were charged and convicted of professional misconduct by the Ontario College of Pharmacists. The pharmacists appealed to the court, arguing that breach of a taxing statute by a corporation is not conduct “relevant” to the practice of pharmacy. The court held that the standard of review was reasonableness and that the committee’s decision met the standard.

25. March 2003 0
Administrative law – Pharmacists – Disciplinary proceedings – Tax evasion – Professional misconduct or conduct unbecoming – Judicial review – Standard of review – Reasonableness Davies v. Ontario College of Pharmacists, [2003] O.J. No. 91, Ontario Superior Court of Justice, January 15, 2003, Blair, E. Macdonald and MacDougall JJ. The Appellants were pharmacists and members of ...

On the morning of the first day of a College hearing, Dr. Howatt requested an adjournment based on the report of his psychiatrist indicating that he was mentally ill and unable to instruct counsel. The College objected to the filing of the report unless the psychiatrist was present to be cross-examined. The Discipline Committee refused to adjourn the hearing and the College proceeded to call evidence. Dr. Howatt was found guilty on all counts. The Ontario Superior Court of Justice concluded that the refusal of the adjournment was a denial of natural justice. The application was allowed and the decision quashed.

25. March 2003 0
Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Evidence – Judicial review – Natural justice – Adjournment of hearing – Standard of review – Reasonableness Howatt v. College of Physicians and Surgeons of Ontario, [2003] O.J. No. 138, Ontario Superior Court of Justice, January 21, 2003, Carnwath, Whalen and MacDougall ...

Documents, specifically expert reports, created in the course of an investigation of a complaint of professional misconduct by the College of Physicians and Surgeons (the “College”) were exempt from disclosure under the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c.165 (the “Act”), because they were “advice or recommendations developed … for a public body”, and exempt pursuant to section 13 of the Act. The documents were not exempt from disclosure on the grounds they were subject to solicitor-client privilege.

25. February 2003 0
Administrative law – Freedom of information and protection of privacy – Disclosure – Public body – Definition – Solicitor-client privilege – Boards and tribunals – Expert reports – Legal advice privilege – Litigation privilege – Physicians and surgeons – Disciplinary proceedings – Delay College of Physicians of British Columbia v. British Columbia (Information and Privacy Commissioner), [2002] B.C.J. No. 2779, ...

The Health Professions Appeal Board (the “Board”) conceded it had exceeded its jurisdiction by making findings of gross criminal misconduct against a physician and relying on materials which were never disclosed to the physician or his counsel. The Board agreed that its decision should be quashed but submitted that the matter should be remitted back for a new review before a differently constituted panel of the Board. The Court of Appeal refused to remit the matter back to the Board, and found that there were exceptional circumstances (the interest of the public in the matter was remote and the delay was serious) which warranted the exercise of its discretion to refuse to remit.

25. February 2003 0
Administrative law – Decisions of administrative tribunals – Discretion of court – Judicial review – Jurisdiction of court – Tribunal decisions – Physicians and surgeons – Disciplinary proceedings – Evidence – Delay – Public interest Rathé v. Ontario (Health Professions Appeal and Review Board), [2002] O.J. No. 4787, Ontario Superior Court of Justice, December 6, 2002, Blair, ...

The Commercial Appeals Commission, upholding a decision of the Real Estate Council of British Columbia, has a duty to give independent consideration to an appropriate penalty and reasons for imposing that penalty on a hearing de novo, even in the absence of a submission on penalty

25. February 2003 0
Administrative law – Real estate agents – Disciplinary proceedings – Penalties – Decisions of administrative tribunals – Commercial Appeals Commission – Hearing de novo – Duty to consider penalties Wong v. Real Estate Council of British Columbia, [2002] B.C.J. No. 2786, British Columbia Court of Appeal, December 13, 2002, Ryan, Mackenzie and Thackray JJ.A. The Real ...

A minister of the United Church (“Graham”) was unsuccessful in her application seeking judicial review of a decision by the Saskatchewan Conference of the Church (the “Conference”) to conduct a formal disciplinary hearing into Graham’s actions as a minister. The court held that the Conference was entitled to proceed despite the fact that decisions from an earlier “care and oversight” review by the Presbytery had been quashed, as the Conference had concurrent jurisdiction with Presbytery to conduct such a review and defects in the prior procedure could be cured by initiating a fresh process.

28. January 2003 0
Religious organizations – Governance – Church ministers – Disciplinary proceedings – Suspensions – Hearings – Judicial review – Breach of procedural fairness – Natural justice – Jurisdiction Graham v. United Church of Canada, [2002] S.J. No. 596, Saskatchewan Court of Queen’s Bench, November 15, 2002, Foley J. Graham was a minister of the United Church of Canada. ...