The Court of Appeal allowed an appeal by a residents’ association of a decision by an assessment and planning appeal board which found that the association had waived its right to claim that members on the preservation review board were biased. Whether a reasonable apprehension of bias existed was a question of law and the board should not be afforded due deference. The standard of review was thus correctness. The bias concerns raised by the residents’ association were effective and timely, and it did not matter that there was no formal request that certain board members recuse themselves from the decision-making process.

25. July 2006 0
Administrative law – Municipalities – Planning and zoning – Decisions of administrative tribunals – Assessment Appeal Board – Judicial review – Bias – Procedural requirements and fairness – Standard of review – Correctness Rothesay Residents Assn. Inc. v. Rothesay Heritage Preservation & Review Board, [2006] N.B.J. No. 227, New Brunswick Court of Appeal, June 1, 2006, Daigle, ...

The Saskatchewan Court of Appeal dismissed the appeal by Preston Crossing Properties (“Preston”) of an assessment decision by the Municipal Board Committee upholding an assessor’s application of a 72% market adjustment factor to the buildings, based on a notable traffic increase to the buildings rendering them more valuable than other nearby buildings. The Committee did not err in concluding that Preston was given full opportunity to develop and state its case before the Board of Revision and in upholding the market adjustment factor of .72 (as opposed to .61 in valuing buildings Preston regarded as comparable to its own) for the purposes of the assessment.

25. July 2006 0
Administrative law – Municipalities – Property assessment – Market adjustment factor – Decisions of administrative tribunals – Assessment Appeal Board – Hearings – Conduct of hearings – Fairness – Judicial review – Evidence – Admissibility – Procedural requirements and fairness – Natural justice Preston Cross Properties Inc. v. Saskatoon (City), [2006] S.J. No. 335, Saskatchewan Court of Appeal, ...

A complainant is not entitled to judicial review of the College of Physician and Surgeons’ decision to take no further action regarding her complaint. The only parties to the investigation were the physicians subject to the complaint and the College itself. A complainant is not made a party to either the investigation or the disciplinary process itself. The College exercised a power akin to prosecutorial discretion that is particularly ill-suited to judicial review. There was no impropriety on the part of the College or the expert retained in investigating the complaints. Judicial review was not available in the circumstances.

25. July 2006 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Investigations – Procedural requirements and fairness – Judicial review – Availability – Compliance with legislation – Standard of review – Patent unreasonableness M.H. v. College of Physicians and Surgeons of Alberta, [2006] A.J. No. 668, Alberta Court of Queen’s Bench, May 26, ...

An application for judicial review of a decision of the Canadian International Trade Tribunal was allowed in part. The tribunal conducted an inquiry to determine whether the dumping of steel fasteners from China and Taipei in Canada had caused or threatened injury to the domestic market. The tribunal erred in failing to adequately consider material before it relating to one applicant’s exclusion request and its decision not to grant an exclusion to the product was patently unreasonable as it was not in accordance with reason.

23. May 2006 0
Administrative law – Decisions of administrative tribunals – International Trade Tribunal – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness GRK Fasteners v. Leland Industries Inc., [2006] F.C.J. No. 446, Federal Court of Appeal, March 21, 2006, Sharlow, Pelletier and Malone JJ.A. The Court heard at the same time three ...

The Court of Appeal dismissed an appeal by an employee from a decision setting aside an adjudicator’s order reinstating him to his former position, finding that the Province retained the right to dismiss non-unionized civil service employees for cause or with reasonable notice.

23. May 2006 0
Administrative law – Employment law – Termination of employment – Government employees – Decisions of administrative tribunals – Adjudications – Judicial review – Jurisdiction – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter New Brunswick (Board of Management) v. Dunsmuir, [2006] N.B.J. No. 118, New Brunswick Court of Appeal, March 23, 2006, W.S. Turnbull, ...

A health authority terminating the Professional Services Contract of a physician had the duty to act fairly which included the right of the physician to know why his services were not satisfactory, reasons why disciplinary action was contemplated and why the termination was being considered. In addition, the physician should have been given the opportunity to be heard. The duty of fairness did not form part of employment law but stemmed from the fact that the employer is a public body whose powers are derived from statute and must be exercised according to the rules of administrative law.

23. May 2006 0
Administrative law – Physicians and surgeons – Employment law – Termination of employment – Decisions of administrative tribunals – Health authorities – Hearings – Judicial review – Public body – Procedural requirements and fairness Shaikh v. Regional Health Authority 7, [2005] N.B.J. No. 581, New Brunswick Court of Queen’s Bench, December 7, 2005, T.W. Riordon J. The applicant ...

The Appellant successfully appealed a decision of the Consent and Capacity Board finding that he was not capable of making decisions concerning admission to a care facility within the meaning of the Health Care Consent Act, 1996, S.O. 1996, c. 2, (the “HCCA”). The test is not whether the Appellant failed to appreciate the foreseeable consequences of the decision to return home but whether or not he was unable to do so. There was no analysis or finding by the Board as to whether the Appellant had the cognitive ability to understand the relevant information as well as to appreciate the consequence of making (or not making) the decision to enter the care facility. Therefore there was no basis upon which the Board could reasonably find that the presumption of the Appellant’s capacity had been displaced and, as such, the Board’s decision ought to be set aside. The Appellant was further awarded costs in the amount of $24,914. Although the proceedings were not adversarial in the usual sense and the evaluators were acting in good faith and in what they believed were the Appellant’s best interests, the hospital and health practitioners had a great deal of power in the assessment process and the appeal was the Appellant’s only remedy to challenge the incapacity finding. Therefore, there was no reason the Appellant should not have his costs.

28. February 2006 0
Administrative law – Decisions of administrative tribunals – Consent and Capacity Board – Adult in need of protection – Capacity – Substitute decision maker – Judicial review – Compliance with legislation – Standard of review – Correctness – Costs Saunders v. Bridgeport Hospital, [2005] O.J. No. 5531, Ontario Court of Justice, December 14, 2005, N.J. Spies J. ...

The applicant directors (the “Applicants”) of a venture capital corporation successfully applied for leave to appeal on issue of whether the fact that the Manitoba Securities Commission (the “Commission”) was named as a co-defendant in a class action suit with the Applicant was sufficient to raise a reasonable apprehension of bias on the part of the Commission, and if so, would it be appropriate to grant a stay of the proceedings before the Commission pending a disposition of the class action suit. The Applicants had an arguable case, and the nature of the objection to proceeding before the Commission was of general public interest because of the importance of impartiality and independence in courts and administrative tribunals.

28. February 2006 0
Administrative law – Decisions of administrative tribunals – Securities Commission – Investigations – Director of corporation – Judicial review – Appeals – Procedural requirements and fairness – Reasonable apprehension of bias – Stay of proceedings – Standard of review – Correctness Curtis v. Manitoba Securities Commission, [2006] M.J. No. 1, Manitoba Court of Appeal, January 10, ...

A physician (“Dr. Litchfield”) applied for judicial review of a decision by the Investigating Committee of the College of Physicians and Surgeons (the “College”) finding him guilty on 9 out of 10 charges of inappropriate examinations and performing manual therapy without consent. The Court considered whether it was appropriate to deal with the judicial review application at this stage or whether it should defer to allow for completion of the internal process, including a hearing by Council and a statutory right of appeal, as set out in the Medical Profession Act, R.S.A. 220, c.M-11, (the “MPA”). The general rule is that an adequate internal appeal process should be exhausted but the Court retains discretion to allow judicial review in the face of an internal appeal in exceptional circumstances. Such circumstances did not exist. Council had broad powers to receive and consider relevant new evidence and address issues concerning legal errors and breaches of the College’s duty of fairness and duty to fairly investigate the complaints.

28. February 2006 0
Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Investigations – Appeal process – Physicians and Surgeons – Disciplinary proceedings – Judicial review – Applications – Procedural requirements and fairness – Disclosure – Evidence Litchfield v. College of Physicians and Surgeons of Alberta, [2005] A.J. No. 1771, Alberta Court of Queen’s Bench, ...