On appeal, a Human Rights complainant failed to establish that an adjudicator under the Human Rights Code, R.S.N. 1990, c.H-14, erred in failing to find discrimination on the basis of disability or that the Trial Division judge erred on appeal. The fact that her employer considered her prior use of sick leave in determining which of two employees should be awarded the position of “lead hand” porter did not amount to discrimination on the basis of physical or mental disability as the complainant’s absences from work did form evidence of a pattern of illness or injury which would indicate that degree of permanence or impairment necessary to prove disability.

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Administrative law – Human rights complaints – Discrimination – Disability – Definition – Judicial review – Standard of review – Correctness Evans v. Health Care Corporation of St. John’s, [2003] N.J. No. 61, Newfoundland and Labrador Supreme Court – Court of Appeal, March 6, 2003, Cameron and Welsh JJ.A. and Russell J. (ex officio) The complainant hospital ...

The applicants’ employer unsuccessfully sought an Order removing the arbitrator of a constructive dismissal claim and declaring void an arbitration between the applicant and the respondent employee on the grounds of reasonable apprehension of bias. The allegation of reasonable apprehension of bias was based on a lawyer in the arbitrator’s law firm obtaining information from a client and writing a letter on his behalf to a subsidiary of the parent corporation of a party to the arbitration. No reasonable apprehension of bias was found and the application was characterized as an opportunistic attack on the arbitration and attempt to derail the arbitration. Costs on a partial indemnity scale were awarded to the respondent to sanction the applicants’ conduct.

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Administrative law – Arbitration and award – Arbitrators – Judicial review – Reasonable apprehension of bias – Test A.T. Kearney Ltd. v. Harrison, [2003] O.J. No. 438, Ontario Superior Court of Justice, February 10, 2003, Lax J. Following a 26-day arbitration concerning a wrongful dismissal claim, the employer applied pursuant to the Arbitration Act, 1991 S.O. ...

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.

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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 ...

An inmate in a federal institution was unsuccessful on an appeal of a decision of a Supreme Court judge, dismissing an application for a writ of habeas corpus for lack of jurisdiction

Administrative law – Prisons – Transfer of inmates – Statutory provisions – Remedies – Habeas corpus – Jurisdiction of court Hickey v. Kent Institution, [2003] B.C.J. No. 61, British Columbia Court of Appeal, January 16, 2003, Rowles, Ryan and Saunders JJ.A. The appellant, an inmate in a federal institution, made application to a judge of the Supreme ...

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 ...

A professional dog handler, Mr. Lee, was abusive towards volunteer staff. The Confirmation Show Committee recommended that he be found guilty of infractions of show rules and that he no longer be allowed to participate in any Alberta Kennel Club (“AKC”) shows. The complaint was brought before the Discipline Committee of the Canadian Kennel Committee (“CKC”). During the hearing, the Committee members solicited more information about Mr. Lee from a representative of the complainant. The complainant’s representative gave a great deal of irrelevant, prejudicial evidence and the Discipline Committee imposed a two-year period of debarment. Mr. Lee’s appeal to the Appeal Committee of the CKC was dismissed. Mr. Lee then brought an appeal to the Alberta Court of Queen’s Bench, who concluded that the decisions of consensual tribunals are reviewable by a court of law and that Mr. Lee’s procedural rights were breached when the Discipline Committee solicited irrelevant and highly prejudicial evidence prior to making its decision.

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Administrative law – Judicial review – Quasi-judicial tribunals – Breach of procedural fairness – Procedural requirements – Jurisdiction – Evidence Lee v. Canadian Kennel Club Appeal Committee, [2003] A.J. No. 64, Alberta Court of Queen’s Bench, January 17, 2003, Lee J. The complaint arose out of dispute between Mr. Lee, a professional dog handler, and ...

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.

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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 ...

Ms. Pritchard was terminated from employment with Sears Canada and filed a Human Rights complaint. The majority of the complaint was dismissed by the Human Rights Commission. Ms. Pritchard commenced an application for judicial review of the Commission’s refusal to deal with her complaint. During the course of the review Ms. Pritchard’s counsel requested a legal opinion that was provided to the commissioners by the Commission’s in-house counsel. The Commission argued that the opinion was privileged. The Divisional Court held that the opinion was not privileged. The decision of the three judge panel of the Divisional Court was overturned by the Ontario Court of Appeal. The Ontario Court of Appeal concluded that the opinion was privileged.

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Administrative law – Human rights complaints – Discrimination – Judicial review application – Solicitor-client privilege – Boards and tribunals – In-house legal opinion Pritchard v. Ontario (Human Rights Commission), [2003] O.J. No. 215, Ontario Court of Appeal, January 29, 2003, Finlayson, Charron and Armstrong JJ.A. The issue raised in the appeal was whether a legal opinion prepared ...

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.

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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.

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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 ...