Decisions of administrative tribunals

Financial Institutions Commission - Director of corporation - Removal - Notice; Judicial review - Procedural requirements and fairness - Failure to provide reasons
An order of the Superintendent of Financial Institutions (the “Superintendent”) removing Ripudaman Singh Malik (“Malik”)as a director of the Khalsa Credit Union was set aside where the Court found the Superintendent was in the breach of the rules of procedural fairness by failing to provide Malik with notice and an opportunity to be heard. Malik v. British Columbia (Financial Institutions Commission), [2006] B.C.J. No. 999

Energy and Utilities Board - Rates; Natural resources - Distribution - Contracts - Validity - Timing; Judicial review - Standard of review - Reasonableness simpliciter
Toronto Hydro Electric System Ltd. (“Toronto Hydro”) was successful in appealing from a Divisional Court decision that had concluded that the Ontario Energy Board (“OEB”) made an unreasonable decision in deciding that a lower hydro system rate should apply to the installation of the electricity distribution system in the Graywood building where Toronto Hydro and Graywood had agreed to a higher rate prior to the date of installation. Graywood Investments Ltd. v. Toronto Hydro-Electric System Ltd., [2006] O.J. No. 2030

College of Physicians and Surgeons - Disciplinary proceedings - Professional misconduct or conduct unbecoming; Judicial review - Bias - Jurisdiction
A family physician (“Dr. Au”) was unsuccessful in quashing an Amended Notice of Hearing regarding allegations of inappropriate touching. He alleged that new members of the Discipline Committee who would hear those allegations were tainted by their exposure to previous members of the Discipline Committee who were also members of the Patient Relations Committee (“PRC”) in respect of the same complainants. College of Physicians and Surgeons of Ontario v. Au, [2006] O.J. No. 1994

Human rights complaints

Discrimination - Gender; Decisions of administrative tribunals - Human Rights Commission; Judicial review - Legislation - Retrospective operation - Procedural requirements and fairness
An appeal by the University from a judge’s conclusion that the human rights complaint against the University was not defective, was dismissed. A finding of “probable cause” under the old Saskatchewan Human Rights Code was procedural in character. As such, the requirement did not survive recent amendments. The conclusion that the complaint was filed by a person was a finding of fact which was entitled to substantial deference. The judge’s decision on that point was reasonable. The Commission had no obligation to obtain the consent of the person aggrieved to hear the complaint and therefore did not err in failing to consider that question. University of Saskatchewan v. Women 2000, [2006] S.J. No. 231

Discrimination; Decisions of administrative tribunals - Statutory Benefits Tribunal - Statutory powers; Judicial review - Jurisdiction of tribunal to hear a complaint under the Human Rights Code - Compliance with legislation
The Ontario Statutory Benefits Tribunal (“SBT “)has jurisdiction to consider the Ontario Human Rights Code in determining whether the Appellants were eligible for support pursuant to the Ontario Disability Support Program Act (“ODSPA”). Statutory tribunals empowered to decide questions of law are presumed to have the power to look beyond their enabling statutes in order to apply the whole law properly to a matter before them. The matter was remitted to the SBT so it could rule on the applicability of section 5(2) of the ODSPA. Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] S.C.J. No. 14

Sexual harassment - Gender; Decisions of administrative tribunals - Human Rights Commission - Damages; Judicial review - Delay - Evidence - Procedural requirements and fairness - Abuse of process - test - Standard of review - Reasonableness simpliciter
The Nova Scotia Construction Safety Association (the “Association”) appealed from the decision of the Human Rights Commission awarding damages to an employee, Karen Davison (“Davison”), who successfully obtained an award for damages for incidents of sexual harassment during the course of her employment. The appeal was dismissed except that the Order of the Human Rights Board of Inquiry that exemplary damages should be awarded against the Association was overturned. Nova Scotia Construction Safety Assn. v. Nova Scotia (Human Rights Commission), [2006] N.S.J. No. 210

Municipalities

Property assessment; Decisions of administrative tribunals - Municipal Government Board; Judicial review - Evidence - Standard of review - Reasonableness simpliciter
Canada Lands Co. CLC Ltd. (“CLC”) was successful in having the Court set aside a decision of the Alberta Municipal Government Board (the “MGB”) as to the amount of a 2003 municipal tax assessment of lands owned by CLC where the Court found that the MGB acted unreasonably in using theoretical formulae in substitution for the evidence before it on rates and expenses. Canada Lands Co. CLC Ltd. v. Alberta (Municipal Government Board), [2006] A.J. No. 463

Pharmacists

Decisions of administrative tribunals - Ministerial orders - Policies - Statutory provisions - Pharmacy Participation Agreements; Judicial review - Procedural requirements and fairness - Legislation - Compliance with legislation - Statutory interpretation
The decision of the Respondent Deputy Minister of Health to terminate Pharmacy Participation Agreements made between PharmaCare and the Petitioner pharmacies was the exercise of a statutory power of decision; it did not arise from the common law powers that the Crown enjoys as a natural person. The Petitioners were entitled to seek judicial review of the decision under the British Columbia Judicial Review Procedure Act. The duty of procedural fairness owed to the Petitioners was not met by the Respondent. Certiorari was granted, the decision to terminate the Pharmacy Participation Agreements was quashed and the matter was remitted to the Respondent for reconsideration. Delivery Drugs Ltd. (c.o.b. Gastown Pharmacy) v. British Columbia (Deputy Minister of Health), [2006] B.C.J. No. 893

Police

Police Complaint Commissioner - Adjudication - Procedural fairness; Public hearings - Conduct of hearings - Rules of evidence; Judicial review - Appeals - Parties - Standing - Compliance with legislation
The Court held that the Complainant had no standing to appeal the decision of an adjudicator appointed by the Police Complaints Commissioner to conduct a public hearing into the conduct of a police officer relating to the death of the Complainant’s brother. Berg v. British Columbia (Police Complaint Commissioner), [2006] B.C.J. No. 1027

Disciplinary proceedings - Penalties and suspensions; Decisions of administrative tribunals - Civilian Commission on Police Services; Hearings - Evidence; Judicial review - Appeals - Standard of review - Reasonableness simpliciter
The Chief of Police appealed from a decision of the Ontario Civilian Commission on Police Services (“OCCPS”) reinstating a police officer (“Kelly”) where the Court found that the OCCPS articulated and applied the appropriate standard of review of reasonableness when overturning the decision of a Hearing Officer to terminate Kelly. Toronto (City) Police Service v. Kelly, [2006] O.J. No. 1758

Workers compensation

Benefits - Recurrence vs. deterioration - Validity and application of policies; Decisions of administrative tribunals - Workers Compensation Boards; Judicial review - Compliance with legislation - Interpretation of legislation - Standard of review - Pate
The Court quashed a policy decision of the Workers Compensation Board (“WCB”) Board of Directors (“BOD”) on the ground that it made a patently unreasonable interpretation of the word “recurrence” to include deterioration. Cowburn v. British Columbia (Worker’s Compensation Board), [2006] B.C.J. No. 1020

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