Bias and Impartiality

Posted by Johannes Schenk on November 28th, 2008 — Posted in Employment Law, Human Rights Law, Labour Law, Municipal Law, Professional Discipline

Bias arguments are commonly made. Here is a case referred to me by my friend John Gesher, who is Counsel at the Regional Municipality of Peel. The case of Boardwalk Reit LLP v. Edmonton (City), 2008 ABCA 176 (CanLII), concerns a bias argument directed at Alberta Court of Appeal Justices. The decision on the recusal is written by Justice Cote and concurred in with additional reasons by Justice O’Brien. I might add that Justice Cote is the co-author of the Stevenson and Cote Civil Procedure Encyclopedia, an excellent and indispensable procedure resource, which in addition to his very well written judgments, underscores his status as an authority.

The judgment gives a definitive outline of a bias recusal analysis and is well worth the succinct read on this often misunderstood topic.

Post Dunsmuir Standard of Review

Posted by Johannes Schenk on November 27th, 2008 — Posted in Human Rights Law, Labour Law, Municipal Law, Professional Discipline

What’s a poor boy to do (or lawyer to do) when faced with Dunsmuir and the standard of review and the ATA standards of review. Well naturally you would rely on this case, Lavigne v. British Columbia (Workers Compensation Review Board), 2008 BCSC 1107, wherein the Court states:

89 Accordingly, if the wording of s. 58(2)(a) of the ATA is to apply then the standard of review of the WCAT decision of October 28, 2003 is patent unreasonableness where findings of fact or law or the exercise of discretion are involved.

90 I recognize that the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] SCC 9, March 7, 2008, collapsed the common law two standards of review of patent unreasonableness and reasonableness simpliciter, on judicial reviews, into one standard of “reasonableness”, leaving only the two standards of reasonableness and correctness, but the court did not suggest that the patent unreasonableness standard never existed. In fact it was its very existence that required the court to deal with it in its decision.

91 While the court said that the new standard of reasonableness for judicial review would apply even where an administrative tribunal has a strong privative clause, the court did not specifically deal with the situation where the privative clause is backed by a provincial statute such as the ATA that specifically assigns the standard of patent unreasonableness to tribunals which are making findings of fact or law or exercising discretion in matters where they have exclusive jurisdiction under privative clauses.

92 The court did say that the courts can rely on jurisprudence that has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category or question.

93 There were cases in this court prior to Dunsmuir that applied the standard of patent unreasonableness in the ATA to decisions of WCAT (Basura v. British Columbia (Workers’ Compensation Board), [2005] B.C.J. No. 590, Daniel v. British Columbia (Workers’ Compensation Appeal Tribunal), 2007 BCSC 1005, and Wyant v. British Columbia (Workers’ Compensation Board), [2006] B.C.J. No. 986), and there is at least one decision in this court that has continued to apply the standard in the ATA after Dunsmuir (see Carter v. Travelex Canada Ltd., 2008 BCSC 405).

94 However, in Howe v. 3770010 Canada Inc., 2008 BCSC 330, the learned trial judge determined that she could not use the definition of “patently unreasonable” found in s. 58(3) of the ATA because it was restricted to discretionary decisions of the tribunal.

95 Instead, she determined that it was necessary to look to the common law for the definition of “patently unreasonable” and she referred to Dunsmuir where “reasonableness” became the standard. She then applied that standard of reasonableness to the tribunal’s decision in her case.

96 This decision did not consider the fact that s. 58(2)(a) mandates a standard of patent unreasonableness for findings of fact or law or an exercise of discretion even if there is no definition of it for those purposes found in the section.

97 I accept that the learned trial judge was correct in looking to the common law for the definition of patently unreasonableness, but I conclude that its definition must be as it existed prior to the new standard of reasonableness established by Dunsmuir. The words of s. 58(2)(a) requiring a standard of “patently unreasonable” cannot be ignored.

98 Having the luxury of two competing decisions of this court to choose to follow, I choose to follow the Carter decision and apply the standard of patent unreasonableness to the October 28, 2003 decision of WCAT here, regardless of the decision in Dunsmuir, along with the ATA standard of fairness for natural justice and procedural fairness.

99 It may be the case that the ATA can be considered as part of the existing jurisprudence that the Supreme Court of Canada in Dunsmuir said can be used by the courts to determine the degree of deference to be accorded to a tribunal, but it is unnecessary to decide that here.

100 The WCAT review decision of February 8, 2007 will be considered on the correctness standard of whether it was correct in concluding that the WCAT decision of October 28, 2003 was not patently unreasonable and was procedurally fair.

One Person One Fare: That’s Fair

Posted by Johannes Schenk on November 23rd, 2008 — Posted in Human Rights Law

A Supreme Court of Canada appeal of the Canada Transportation Agency’s One Person One Fare ruling has been denied. Surprising how much press the decision has garnered. Surprising how out of it the airline spokespeople sound when they speak about the “implications” and “questions” the policy raises.

The ruling deals with all disabled travelers, including morbidly obese individuals. There is really not a lot new about the underlying principles to the ruling which is entirely in keeping with accommodation principles regularly enforced in other legal domains.

Perhaps the most interesting thing coming from this decision is the level of ignorance about disabilities and the state of Canadian law in that regard. I would have thought that most people would be in favour of enforcing correct legal principles that are the foundation of our society. Instead we have individuals like a Mr. Libin revealing their complete lack of understanding of any legal principle, or any principle for that matter.

Get a load of this Libin gem:

The most offensive thing about the ruling is that it downloads onto private businesses an unreasonable responsibility. Fact is, airlines don’t discriminate by requiring certain special needs individuals to buy extra seats: they just aren’t making exceptions. That’s different. Now, the court has spawned entire exception-making divisions of transportation companies. As a Westjet spokesman put it today, how is the airline to judge who is “morbidly obese” enough to deserve an extra seat, and who’s just really, really tubby, and can manage with one? Who really needs an attendant to fly along, and who just prefers it? Suddenly, airlines are put in the complicated and touchy position of having to size up the legitimacy of your too-fat-for-my-seat claim, while preventing the kind of abuse of this policy that is surely inevitable. This is not the business of airlines.

Pretty deep stuff. If you can’t say anything nice, don’t say it, but you can laugh.

Professional Associations: Natural Justice Rules

Posted by Johannes Schenk on November 19th, 2008 — Posted in Professional Discipline

Wang v. British Columbia Medical Association, 2008 BCSC 1559, is another recent analysis of fairness rules in the context of a voluntary professional association. The decision has an excellent summary of the law concerning rules of fairness in voluntary professional association conduct, the effect of the Society Act, and procedural rules concerning applications by association members.

Muncipal Declaratory Relief

Posted by Admin on November 19th, 2008 — Posted in Municipal Law

Gook Country Estates Ltd. v. Quesnel (City of), 2008 BCCA 407, deals with the issue of the Court’s discretion in granting declaratory relief. There is an excellent summary about the factors that the Court will rely on when considering whether or not to grant discretionary relief.

Keep in mind that discretionary remedies are just that, discretionary. Many times the parties are so busy attacking and defending positions that the discretionary part of the equation is overlooked.