Vancouver City Sign Advertising Copy Not Contempt

Posted by Johannes Schenk on April 27th, 2007 — Posted in Municipal Law

Kollen v. Vancouver (City), 2007 BCSC 295, is a continuation of a long standing Vancouver City non-conforming use sign case. In this edition of the municipal saga, the City brought a contempt motion against the sign owners for placing new advertising copy on the sign. The contempt order was denied on the basis that the order was too vague to enforce in that regard.

Sikh Hard Hat Accommodation

Posted by Johannes Schenk on April 23rd, 2007 — Posted in Employment Law, Human Rights Law, Labour Law

A recent arbitration award deals with the matter of hard hat accommodation in safety sensitive positions on the basis of religious belief. The case, BCMEA , Neptune Bulk Terminals Ltd and PCT v. ILWU, Local 500, deals with Sikh longshoremen. The Sikh workers refused to wear the hard hats, as required by the employers and statutory provisions, due to religious beliefs. The issue turned on whether accommodation had to occur on site at the hands of individual employers or in the Association’s dispatch hall. The Arbitrator holds that the duty to accommodate lies on the employers group and that it could be satisfied in the dispatch hall or on the work site.

Municipal Inspection Powers

Posted by Johannes Schenk on April 12th, 2007 — Posted in Municipal Law

Municipal inspectors have tremendous powers under the legislative schemes that govern their inspection powers. Brewster v. City of New Westminster, 2006 BCSC 1837 is a case that concerns the powers of a City of New Westminster municipal fire inspector. The fire inspector made an order to remove a canoe from a parking space on the basis that the canoe was a fire hazard according to the New Westminster Fire Protection Bylaw.

The Fire Protection Bylaw adopts the National Fire Code and is similarily worded to fire safety bylaws in other BC municipalities such as Vancouver, Burnaby and Surrey.

The Judge in this case held that the fire inspector was subject to review on a standard of patent unreasonableness. The parties agreed that the inspector’s juridiction was to be reviewed on correctness and that his decison was to be reviewed on a patently unreasonable standard. I’m not quite sure how you do that, and in any event I’m not sure that someone like a fire inspector should always have the benefit and protection of a patently unreasonable standard of review (they get to be wrong to the point of unreasonableness). While an inspector will have inspection expertise, he is after all interpreting a statute/bylaw, something the Court can do, there is no privitive clause and a fire inspector’s decisions are often appealable under the Fire Safety Act. And in any event why agree to a review standard that is almost impossible to argue around?

I have noticed on several occassions now that the reasons in United Taxi have been adopted as a catchall response to standards of review to be applied to a municipal decision maker: if it’s municipal, review it on a patently unreasonable standard. This is not what Unted Taxi stands for and not the kind of power that should be granted to municipal officials in the absence of a legislatied basis. United taxi actually says:

The only question in this case is whether the freeze on the issuance of taxi plate licences was ultra vires the City under the Municipal Government Act. Municipalities do not possess any greater institutional competence or expertise than the courts in delineating their jurisdiction. Such a question will always be reviewed on a standard of correctness: Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 29. There is no need to engage in the pragmatic and functional approach in a review for vires; such an inquiry is only required where a municipality’s adjudicative or policy-making function is being exercised.

That certainly doesn’t take you to an automatic review on a patently unreasonable standard.

Concurrent Jurisdiction: Arbitrator and Human Rights Tribunal

Posted by Johannes Schenk on April 10th, 2007 — Posted in Employment Law, Human Rights Law, Labour Law

The Alberta Court of Appeal has now ruled in Amalgamated Transit Union, Local 583 v. Calgary (City of), 2007 ABCA 121, that under the Albert legislative regime Labour Arbitrators and the human rights tribunal have a concurrent jurisdiction to review a discrimination complaint brought under a collective agreement grievance. The matter of concurrent versus exclusive jurisdiction between these statutory bodies has long been a controversial issue that appears to be closed at this time.

Health Professions Act: Reasonableness Simpliciter

Posted by Johannes Schenk on April 9th, 2007 — Posted in Employment Law, Labour Law

Dr. Larre v. College of Psychologists of BC, 2007 BCSC 416 concerns the suspension of a psychologist from the College of Psychologists of British Columbia by the Inquiry Committee of the College pending further investigation or a hearing of the Discipline Committee of the College.

The case is interesting because the standard of review of the decision of the Inquiry Committee is reasonableness simpliciter.