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.

22. July 2003 0
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 ...

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.

22. July 2003 0
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, ...

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.

24. June 2003 0
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 ...

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 ...

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 ...

The College of Physicians and Surgeons of British Columbia succeeded on its appeal from a decision of the British Columbia Court of Appeal. The Supreme Court of Canada held that the Court of Appeal had erred in failing to set aside the order of the appeal judge’s decision overturning an Inquiry Committee’s finding of fact leading to a conviction for infamous conduct. The court held that the proper standard of review for findings of fact was reasonableness.

27. May 2003 0
Administrative law – Physicians and surgeons – Disciplinary proceedings – Inquiry committee decisions – Suspensions – Judicial review – Standard of review – Reasonableness simpliciter Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.J. No. 18, Supreme Court of Canada, April 3, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, ...

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

27. May 2003 0
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. ...