Barristers and solicitors

Disciplinary proceedings - Professional misconduct - Sale of assets, definition; Decisions of administrative tribunals - Law Societies - Penalties; Judicial review - Evidence
A lawyer ("Regular") was unsuccessful in appealing from a decision of the Law Society Discipline Committee which found that he had failed to act with integrity and to avoid questionable conduct in fulfilling his duties as a lawyer. Law Society of Newfoundland and Labrador v. Regular, [2005] N.J. No. 372

Decisions of administrative tribunals

College of Optometrists - Licence to practice - Training requirements; Judicial review - Standard of review - Reasonableness simpliciter
An optometrist ("Zenner") appealed a decision of the Prince Edward Island College of Optometrists (the "College") refusing to issue a new licence to Zenner until certain terms and conditions had been met. The Supreme Court of Canada allowed the appeal in part, quashing the condition that Zenner must complete an ethics course as no optometric or medical ethics course was, at the relevant time, accredited or offered by the College. Zenner v. Prince Edward Island College of Optometrists, [2005] S.C.J. No. 80

College of Physicians and Surgeons - Investigations - Appeal process; Physicians and Surgeons - Disciplinary proceedings; Judicial review - Applications - Procedural requirements and fairness - Disclosure - Evidence
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. Litchfield v. College of Physicians and Surgeons of Alberta, [2005] A.J. No. 1771

Curling Federation - Disciplinary proceedings - Penalties - Suspension - Failure to provide reasons; Judicial review - Jurisdiction of court - Procedural requirements and fairness
Rankin and three other professional curlers were successful in their application for judicial review of the decisions of the Review Committee and the Appeal Committee of the Alberta Curling Federation ("ACF"). The Court held that the sanctions imposed were patently unreasonable and unsupported by reasons and should be set aside. Rankin v. Alberta Curling Federation Appeals Committee, [2005] A.J. No. 1759

Consent and Capacity Board - Adult in need of protection - Capacity; Substitute decision maker; Judicial review - Compliance with legislation - Standard of review - Correctness - Costs
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. Saunders v. Bridgeport Hospital, [2005] O.J. No. 5531

Human Rights Tribunal; Human rights complaints - Discrimination - Disability; Judicial review - Jurisdiction of tribunal - Parties, death of a party
The mother of a deceased disabled adult was unsuccessful in her appeal from a decision that the Human Rights Tribunal had no jurisdiction to continue to entertain the Human Rights complaint made on behalf of the disabled adult son where he had died before a hearing could be held. British Columbia v. Goodwin, [2005] B.C.J. No. 2593

Human Rights Tribunal; Human rights complaints - Discrimination - Gender; Judicial review - Compliance with legislation -
A post-operative male-to-female transsexual ("Nixon") appealed from a decision on judicial review which found that she was not discriminated against when the Vancouver Rape Relief Society ("Society") refused to allow her to volunteer as a peer counsellor with their organization. Vancouver Rape Relief Society v. Nixon, [2005] B.C.J. No. 2647

Securities Commission - Investigations - Director of corporation; Judicial review - Appeals - Procedural requirements and fairness - Reasonable apprehension of bias - Stay of proceedings - Standard of review - Correctness
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. Curtis v. Manitoba Securities Commission, [2006] M.J. No. 1

Securities Commission - Investigations - Director of corporation - Penalties; Judicial review - Abuse of public office - Procedural requirements and fairness - Disclosure - Relevance of information disclosed - No reasonable cause of action - Abuse of proc
The Court dismissed the Plaintiff's claim for damages against the Defendant British Columbia Securities Commission (the "Commission"), among others, on the basis that the action itself was an abuse of process. The Plaintiff had fully exhausted his right of review of the Commission's 1995 and 2003 decisions determining that he had failed to comply with his obligations as and officer and director of a publicly traded company and restraining him from acting in such a capacity in British Columbia for 17 years. This present action for damages was a collateral attack on those decisions and, as such was an abuse of the Court's process. Additionally, the Plaintiff's pleading that the Commission committed the tort of abuse of public office failed to set out the essential elements of the tort and, in any event, was vexatious, and should be struck out. Roeder v. Lang Michener Lawrence & Shaw, [2005] B.C.J. No. 2830

Prisons

Transfer of inmates; Remedies - Habeas corpus; Judicial review - Procedural requirements and fairness - Jurisdiction
The Supreme Court of Canada held that federal inmates were entitled to challenge the legality of a decision transferring the inmates from minimum to medium security in a provincial court by way of habeas corpus. In this case, the Court held that habeas corpus should be granted as the Correctional Service of Canada ("CSC") failed to disclose the scoring matrix for the Security Classification Rating tool upon which the transfer decision had been based. May v. Ferndale Institution, [2005] S.C.J. No. 84

For comments or suggestions, please contact: