The Ontario Health Professions Appeal and Review Board (“HPARB”) acted unreasonably in its decision to review a decision in respect of multiple physician registrants listed, even though the complainant had withdrawn her review request against all but one of the registrants

24. April 2012 0
Administrative law – Decisions of administrative tribunals – Health Professions Appeal and Review Board – Complaint – Multiple registrants – Physicians and surgeons – Disciplinary proceedings – Statutory provisions – Compliance with legislation – Public interest – Judicial review – Jurisdiction – Standard of review – Reasonableness simpliciter Wilcock v. Ontario (Health Professions Appeal and ...

Although the Inquiries Complaints and Reports Committee of the College of Nurses of Ontario (the “ICRC”) is a screening committee and not a quasi-judicial one, it still owed a disclosure obligation to the applicant member of the College, a registered nurse, which required it to provide the applicant with notice of the Registrar’s report of its investigation, notice of the substance of the allegations against her and an opportunity to make submissions in respect of the allegations. In this case, the College agreed that the decision of the ICRC should be quashed and the matter remitted to a differently constituted panel of the ICRC for fresh determination, with directions that the applicant be allowed to make submissions in respect of seven witness statements.

25. January 2012 0
Administrative law – Decisions of administrative tribunals – College of Nurses – Investigations – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Quasi-judicial tribunals – Disclosure – Evidence – Witnesses – Procedural requirements and fairness – Jurisdiction Ajao v. College of Nurses of Ontario, [2011] O.J. No. 5280, 2011 ...

The Court found, on judicial review, that the decision of the Director of Human Rights Commission extending the time to file a human rights complaint was unreasonable. The 12 month deadline to file a complaint ran until the formal complaint was made. The statutory scheme under the Human Rights Act, R.S.N.S. 1989, c.219 is premised on a formal complaint and a process of inquiry based on it. The Commission also breached its duty of procedural fairness by not giving the applicant employer, ExxonMobil Canada Ltd., a copy of the respondent employee’s request for an extension prior to the Director making a decision. Finally, there was no basis for a finding of exceptional circumstances because of the respondent’s counsel’s communications with the Commission led counsel to believe that the deadline to file a complaint was extended. The communications between counsel and the commission were about the administratively imposed 28 days for completing the intake questionnaire, not the 12 month statutory deadline. Also, those communications about extending time occurred after the statutory deadline had expired.

25. January 2012 0
Administrative law – Decisions of administrative tribunals – Human rights complaints – Discrimination – Judicial review – Limitations – Extension of time – Compliance with legislation – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter ExxonMobil Canada Ltd. v. Carpenter, [2011] N.S.J. No. 649, 2011 NSSC 445, Nova Scotia Supreme Court, December ...

The Supreme Court of Canada allowed an appeal by appellant Nor-Man Regional Health Authority from the Manitoba Court of Appeal and determined that an arbitral award applying equitable remedies was not an aspect of the award that fell outside of the protected zone of deference. As a general rule, reasonableness was the standard of review governing arbitral awards under collective agreements. The arbitrator’s imposition of estoppel in this case was not unreasonable. The arbitrator’s decision that the union was barred from grieving the employer’s decision due to its long-standing acquiescence and the reasons given were transparent, intelligible and coherent. The appeal was allowed and the arbitrator’s award was restored.

25. January 2012 0
Administrative law – Decisions of administrative tribunals – Labour and employment boards – Arbitration Board – Labour law – Arbitration – Collective agreements – Benefits – Judicial review – Standard of review – Reasonableness simpliciter – Correctness – Equitable remedies – Promissory estoppel Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, ...

A physician’s application for judicial review of the decision of the Ministry of Health and Long Term Care “and/or” the general manager of Ontario Health Insurance Plan (OHIP) denying him payment for approximately $250,000 for medical services billed in 2002, 2003, and 2004 was set aside on the basis of delay. The original denial occurred in 2004 and the last letter denying his request for reconsideration was dated February 2008. The judicial review application was served February 2011 and perfected April 2011. While the physician had distractions, there was no satisfactory explanation provided for the excessive delay in bringing the judicial review application and there was evidence of actual prejudice to the respondent.

25. January 2012 0
Administrative law – Decisions of administrative tribunals – Ministerial – Judicial review application – Delay – Test Rosenhek v. Ontario, [2011] O.J. No. 5186, 2011 ONSC 3785, Ontario Superior Court of Justice, June 17, 2011, D.R. Aston J. Dr. Rosenhek initiated an application for judicial review of “the decision” of the Ministry of Health and ...

The Registrar of Motor Vehicles’ interpretation of its enabling statute was not entitled to deference and is reviewable on a standard of correctness. Where there is an apparent discrepancy between a statutory provision and a regulation as to which vehicles qualify as “special mobile equipment”, the statutory definition must prevail. When there is an ambiguity in the interpretation of a statutory provision, there is a residual presumption in favour of taxpayers.

25. October 2011 0
Administrative law – Decisions of administrative tribunals – Registrar of Motor Vehicles – Permits and licences – Motor vehicles – Special mobile equipment – definition – Judicial review – Compliance with legislation – Statutory interpretation – Standard of review – Correctness Carter Brothers Ltd. v. New Brunswick (Registrar of Motor Vehicles), [2011] N.B.J. No. 304, ...

The public law remedy of judicial review is not available to contest the removal and expulsion of a Chairperson of the Board of Directors of the Port of Dalhousie, a non-profit body incorporated under the Companies Act, R.S.N.B. 1973, c. C 13. The Port of Dalhousie is not a body that exercises statutory powers in the discharge of any regulatory or other governmental responsibilities. While it may have been incorporated to pursue some public good, it is not a creature of statute any different from any other non-profit corporation. While the functions of the corporation may serve the public interest, they are not regulatory in nature. The main function of the corporation is to conduct a business: managing the Port. The decision making power of the Port of Dalhousie is not sufficiently of a public character to be subject to the Court’s power of judicial review.

25. October 2011 0
Administrative law – Associations and clubs – Governance – Judicial review application – Availability – Public body – definition – Hearings – Remedies – Hearing de novo – Private law remedies Maltais v. Port of Dalhousie Inc., [2011] N.B.J. No. 309, 2011 NBCA 84, New Brunswick Court of Appeal, September 22, 2011, A. Deschenes, J.C.M. ...

The Law Enforcement Review Board erred in considering only a partial record in setting aside the Chief of Police’s dismissal of a complaint of misconduct against a police officer and directing the Chief to hold a hearing. The decision was reviewed on a reasonableness standard. Given the inordinate delay, the Court declined to remit the matter back to the Board for further consideration.

25. October 2011 0
Administrative law – Decisions of administrative tribunals – Law Enforcement Review Board – Police – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Hearings – Evidence – Judicial review – Delay – Standard of review – Reasonableness simpliciter Eltom v. Alberta (Law Enforcement Review Board), [2011] A.J. No. 1017, 2011 ABCA 260, Alberta Court ...

The Court dismissed the Appellant Architect’s appeal of a decision made by a discipline committee of the Respondent Ontario Association of Architects which found him guilty of two counts of professional misconduct by affixing a seal or permitting a seal to be affixed to a design not prepared under the personal supervision and direction of a member/holder of a temporary licence. Where the issue is integrity, there is no equivalent functional need for peer review or expert evidence as there would be for disputes concerning the standard of practice. The Discipline Committee did not err in law in concluding that the conduct of the member/holder was dishonourable and unprofessional without receiving peer or expert opinion on the issue. As well, there was no compelling reason to interfere with the Discipline Committee’s decision on penalty and costs.

28. July 2009 0
Administrative law – Decisions of administrative tribunals – Association of Architects – Disciplinary proceedings – Supervision of trainee – Professional misconduct – Penalties and suspensions – Judicial review – Compliance with legislation – Jurisdiction – Evidence – Standard of review – Reasonableness simpliciter Cheung v. Ontario Assn. of Architects, [2009] O.J. No. 2230, Ontario Superior ...