The Court allowed, in part, the application for judicial review by several Vancouver taxi companies of seven decisions of the Passenger Transportation Board that permitted certain suburban tax companies, not licensed for the City of Vancouver, to pick up passengers in the Downtown Vancouver Entertainment District during certain peak weekend hours. While the Court found it was reasonable for the Board to hear the matters together, that the Board did not act unfairly in conducting a written hearing, and the determination of the boundaries of the Downtown Vancouver Entertainment District was within the Board’s jurisdiction, it was patently unreasonable for the Board to not permit the Vancouver taxi companies to make submissions on the suburban taxi companies’ application for temporary permits as the decision was arbitrary and failed to consider the interests of the Vancouver taxi companies. The Board’s concern that hearing these submissions would result in delay was not an acceptable justification. A refusal to hear a person who would be affected by a decision of the Board is prima facie failure to “hear the other side” and a breach of the audi alteram partem principle. As a result, the temporary permit application was remitted to the Board for reconsideration after hearing submissions of the Vancouver Taxi Company.

24. December 2013 0
Administrative law – Decisions of administrative tribunals – Passenger Transportation Board – Taxis – Permits and licences – Hearings – Consolidation – Fairness – Judicial review – Standard of review – Patent unreasonableness – Delay – Jurisdiction Yellow Cab Co. v. Passenger Transportation Board, [2013] B.C.J. No. 2321, 2013 BCSC 1930, British Columbia Supreme Court, ...

The Court dismissed the application of judicial review of an employee of the Canada Border Services Agency (the “CBSA”), of a decision of an appeals officer of the occupational Health and Safety Tribunal Canada (the “Tribunal”), who concluded that there was no “danger” within the meaning of the Canada Labour Code, RSC 1985, c.L-2 (the “Code”) justifying the employee’s refusal to work. This was the second application for judicial review resulting from the refusal to work, with the first application being allowed, with the matter referred back to the appeals officer to “complete her analysis in accordance with the reasons of the judgment”. The Court found no breach of procedural fairness in the appeals officer declining the request to hold a hearing following the first judgment of the Court and before making her second decision. The Court also found the decision reasonable, finding that the appeals officer’s decision fell within the range of acceptable and rational solutions. The decision had the qualities of reasonableness, in that the decision-making process was justifiable, transparent and intelligible.

24. December 2013 0
Administrative law – Decisions of administrative tribunals – Occupational Health and Safety Tribunal – Labour law – Working conditions – Judicial review – Appeals – Failure to provide reasons – Procedural requirements and fairness Laroche v. Canada (Attorney General), [2013] F.C.J. No. 859, 2013 FC 797, Federal Court , July 18, 2013, Roy J. This was ...

The Ontario Divisional Court dismissed the appeal of the appellant physician from four decisions of the Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) when found that she failed to maintain the standards of practice of the profession; had engaged in disgraceful, dishonourable and unprofessional conduct; and demonstrated a lack of knowledge, skill and judgment in her treatment of a number of patients. The Court upheld the Committee’s penalty of a two year suspension and restrictive terms thereafter preventing the appellant from practising as a cosmetic surgeon, and performing any surgery except as a surgical assistant in a hospital under supervision. The Court also upheld the Committee’s finding that the appellant contravened the advertising regulation under the Medicine Act, 1991 S.O. 1991 c.30, finding that the CPSO’s ban on the use of testimonials and superlatives was constitutional.

24. December 2013 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Professional misconduct or conduct unbecoming – Competence – Advertising – Penalties – Suspensions – Judicial review – Standard of review – Correctness – Reasonableness simpliciter Yazdanfar v. College of Physicians and Surgeons of Ontario, [2013] O.J. No. ...

The Court denied the petition seeking an order in the nature of certiorari quashing a 24-hour driving prohibition against the petitioner driver, on the basis that the peace officer who issued the prohibition believed, on reasonable and probable grounds, that the driver’s ability to operate a motor vehicle was affected by a drug, other than alcohol. Merely showing that the officer may have been mistaken about the presence of drugs in her system did not negate the fact that she was driving as if she were on drugs. A reasonable and probable belief that a driver’s ability to drive has been affected by a drug includes the context of the driving itself, and rebutting the belief includes rebutting fault for that driving and not merely raising a question about the presence of drugs alone.

24. September 2013 0
Administrative law – Decisions of administrative tribunals – Superintendent of Motor Vehicles – Motor Vehicles – Suspension of driver’s licence – Judicial review – Procedural requirements and fairness Wilson v. British Columbia (Superintendent of Motor Vehicles), [2013] B.C.J. No. 1778, 2013 BCSC 1458, British Columbia Supreme Court, August 13, 2013, T.M. McEwan J. The petitioner ...

The Court of Appeal allowed the appeal made by parents of a child with a disability, of a Chambers Judge’s decision quashing an order of the Human Rights Tribunal to refer a human rights complaint to an inquiry. The appeal concerned a human rights complaint brought by the parents of a 10 year old boy who suffered a disability. The complaint arose out of a newly implemented locked door policy at the school that made it more difficult for the boy to enter and leave the school building.

24. September 2013 0
Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Disability – Duty to accommodate – Schools – Parental rights – Judicial review – Evidence Holy Trinity Roman Catholic School Division (c.o.b. Ecole St. Margaret School) v. Prisciak, [2013] S.J. No. 501, 2013 SKCA 87, Saskatchewan Court ...

The appellant psychologist appealed a decision of the Saskatchewan College of Psychologists finding her guilty of professional misconduct for failing to comply with the College’s Code of Ethics and issuing a reprimand. The College’s Discipline Committee had rejected the joint submission by the psychologist and College’s counsel on agreed facts and undertakings, and instead issued an order as to the appellant psychologist’s future practice. The College Council upheld the Discipline Committee’s decision. The appeal was allowed in part. The Court agreed that the appellant psychologist’s admissions as to the facts behind the charges were tantamount to guilty pleas. The Council’s decision to uphold the findings of guilty pleas was within the range of reasonable decisions. However, the Discipline Committee and Council erred in its application of section 32 of the Psychologists Act in requiring a reprimand given in every case where there was a breach of professional standards. As well, the process of rejecting the joint submission without an opportunity for further submissions from either counsel for the College or appellant psychologist was unreasonable. As a result, the reprimand was struck from the disposition.

25. June 2013 0
Administrative law – Decisions of administrative tribunals – College of Psychologists – Psychologists – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Penalties – Judicial review – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter Nanson v. Saskatchewan College of Psychologists, [2013] S.J. No. 295, 2013 SKQB ...

The Saskatechewan Court of Queen’s Bench dismissed an application for judicial review by an applicant seeking to quash the Law Society’s decision refusing him admission to membership. The court held that as gatekeeper of admissions, the Law Society’s participatory role in judicial review was appropriate and necessary. The Admissions and Education Committee of the Law Society (the “Committee”) and Benchers’ decisions were reviewable on a reasonableness standard on questions of fact and credibility. The standard of correctness applied to questions of law and mixed fact and law. The Committee’s decision, affirmed by the Benchers, denying the applicant’s application for membership on the basis he had not satisfied the Committee of good character, fell within the range of reasonable outcomes having regard to evidence and credibility of witnesses. The Committee did not err in concluding the applicant had not met the onus of proving good character.

25. June 2013 0
Administrative law – Decisions of administrative tribunals – Law Societies – Standing – Barristers and solicitors – Admission to profession – Judicial review – Disclosure – Jurisdiction – Natural justice – Bias – Standard of review – Reasonableness simpliciter – Correctness DeMaria v. Law Society of Saskatchewan, [2013] S.J. No. 292, 2013 SKQB 178, Saskatchewan ...

The Court of Appeal dismissed an appeal by Zhu from a British Columbia Securities Commission decision refusing to set aside an order freezing certain bank accounts of a company where Zhu was the sole director. The company was alleged to have breached provisions of the Securities Act, R.S.B.C. 1996, c.418, by operating a cash rebate program which was in substance an investment contract and security, without a prospectus. As well, the rebate program was alleged by the Executive Director to be, in effect, a Ponzi scheme. The Court, in dismissing the appeal, held that the Commission had a very broad discretion in determining whether Zhu had established that revocation of the freeze order would not be prejudicial to the public interest. The Commission’s approach was clearly within its mandate and did not lend itself to guidance by way of tests, mandatory criteria or other guidelines that would tie the Commission’s hands. The Commission’s decision not to revoke the freeze order was reasonable.

25. June 2013 0
Administrative law – Decisions of administrative tribunals – Securities Commission – Investigations – Stock brokers – Professional misconduct / conduct unbecoming – Disciplinary proceedings – Freezing of bank accounts – Public interest – Judicial review – Compliance with legislation – Jurisdiction – Standard of review – Reasonableness simpliciter Zhu v. British Columbia (Securities Commission), [2013] ...

This was an appeal by Ouelette from a decision dismissing her application for judicial review of the respondent’s decision to remove her from her position as Clerk, Treasurer and Chief Administrative Offier of the rural community. Her appeal was dismissed. The Court of Appeal found that the appellant, who was an officer of the rural community, had a right to procedural fairness on termination which was imported into the contractual employment relationship by the provisions of the Municipalities Act, R.S.N.B. 1973, c.M-22. The requirements of procedural fairness in this case were met, through an appropriate opportunity to know of the concerns about her performance that could lead to termination, and an opportunity to explain them or demonstrate why they have no merit. While Council owed Oulette a duty of procedural fairness on termination, it met its duty in that regard. As a result, the appeal was dismissed.

23. April 2013 0
Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Employment law – Termination of employment – Public law vs. Contract law – Judicial review – Natural justice – Procedural requirements and fairness Ouellete v. Saint André, [2013] N.B.J. No. 80, 2013 NBCA 21, New Brunswick Court of Appeal, March 14, 2013, ...