B.C. COURT OF APPEAL
REASONS FOR JUDGMENT

CONSTITUTIONAL / ADMINISTRATIVE 2001

• 2001 BCCA 743 C.E.P. Union of Canada v. Power Engineers et al.
• 2001 BCCA 722    Mohl v. The Senate Committee on Appeals on Academic Standing
  Appeal from the decision of Mr. Justice Macaulay dismissing a petition under the Judicial Review Procedure Act seeking to set aside a decision of the Senate Committee on Appeals and Academic Standing and obtain a new hearing before a differently constituted committee. The appellant enrolled in a one-year teacher education program in the Faculty of Education at U.B.C. His appeal to the Senate Committee from the decision to award him a failing grade was unsuccessful. Held: There was no prejudice to the appellant from the decision of the Senate Committee declining to hear from a witness who could be of no further assistance to it. The Senate Committee also did not err in finding it was obliged to respect the academic judgment of the faculty. The appropriate standard of review is one which calls for a high degree of deference. Appeal dismissed.
• 2001 BCCA 620    Vancouver Marina v. HMTQ for BC
  Appellant applied for leave to appeal a decision of the Expropriation Compensation Board. The Board’s decision denying compensation resulted from its interpretation of three statutes and the appellant’s lease. Held: leave granted. The appeal was limited to questions of law involving the application of statutory provisions and statutory interpretation particularly important to the appellant; the appeal has some merit; the issue has not been considered by other appellate bodies; and the appellant was not required to seek judicial review or a private remedy before appealing the decision.
• 2001 BCCA 611    Aujla v. B.C.L.R.B. et al.
  The appellant appealed from the dismissal of his application for judicial review of decisions of the B.C. Labour Relations Board dismissing his complaint of unfair representation by his union, which refused to take his seniority grievance to arbitration. Held: Appeal dismissed. The primary ground of appeal was that the Board failed to consider the merits of the appellant’s grievance in determining whether his complaint was valid. A determination of whether a complaint is valid will require some reference to the factual context. The extent to which the merits of a grievance are relevant will depend on the circumstances of the particular case. The chambers judge made no error in law or principle in this case.
• 2001 BCCA 598   Coulson v. HMTQ
  OFFENCE ACT – CONTENTS OF VIOLATION TICKET   On appeal from the decision of a chambers judge refusing to quash a speeding violation ticket on the ground that it failed to comply with s. 14(4)(d) of the Offence Act; held that the appeal should be dismissed substantially for the reasons given by the chambers judge.
• 2001 BCCA 573    Schmirler v. Police Complaint Commissioner
  It is open to the court to address an appeal which is moot when the interests of justice require it and where it raises an important issue. Here, at issue are the reputation of a peace officer, found by the adjudicator to have "discharged his firearm without reasonable grounds, and when unsafe to do so" when he shot a pit bull dog attacking a fellow officer during a search for drugs and firearms, and the interpretation of the Police Firearm Regulation (Police Act), B.C. Reg. 203/98.   The adjudicator incorrectly asked himself whether in his opinion it was wrong to shoot the dog instead of asking whether doing so was unreasonable, and thereby committed an error in law.  Appeal allowed. Finding this peace officer guilty of the alleged disciplinary default was unreasonable.
• 2001 BCCA 572    Sekela v. Police Complaint Commissioner; Schmirler v. Police Complaint Commissioner
  Appeal by Police Complaint Commissioner from orders declaring s. 60.1(2) of the Police Act violates principles of natural justice in that it provides a process for the appointment of an adjudicator which created a reasonable apprehension of bias and quashing the decisions of the adjudicator on the grounds that the appointment process violated principles of natural justice in that it created a reasonable apprehension of bias. Appeal from declaration concerning s. 60.1(2) of the Police Act allowed; appeal from order quashing decisions of the adjudicator dismissed.  Southin J.A. dissenting as to appeal from order quashing decisions of the adjudicator.
• 2001 BCCA 499    Staufen v. British Columbia (Attorney General)
  The Court upheld a ruling that a man suffering from amnesia who had travelled from Ontario to British Columbia and whose only clue to his identity was an Ontario Health Card, was not entitled to compel the Director of Vital Statistics to provide him with a birth certificate indicating Vancouver as his place of birth. There was no jurisdiction to do so, either in the Vital Statistics Act or otherwise.
• 2001 BCCA 488    Elkview Coal v. United Steelworkers et al.
  The employer, Elkview, appealed the Order of a judge in Chambers dismissing the employee's application for judicial review of two decisions of the Labour Relations Board affirming an arbitrator's decision that he had jurisdiction to decide the grievance brought by the Union. The appeal was allowed because the arbitrator erred in finding jurisdiction under the Collective Agreement when the real dispute was between the Union and an insurer who provided benefits under an insurance policy paid for by the employer. The arbitrator confused the employee's obligation under the Agreement with the insurer's obligation under the policy. That was a fundamental error of law and the arbitrator's decision on jurisdiction should have been, and must be, set aside.
• 2001 BCCA 453    Money's Mushrooms Ltd. v. BC Marketing Board
  Appeal from judgment dismissing an appeal from a decision of the British Columbia Marketing Board. Issue of whether, under the British Columbia Mushroom Marketing Scheme, the Mushroom Board had the power to enact Order 2/98 concerning the transfer of shipments from one agency to another and requiring contracts between a grower and an agency to first be approved by the Mushroom Board. The Marketing Board held that the Mushroom Board had the power to vary the terms and conditions of agency contracts; that it was appropriate for the Mushroom Board to refuse to approve the proposed agency contract on the ground it interfered with the Board's authority to transfer product between agencies; and on the ground that para. 16 of the contract should provide for a 180 day notice period of termination.  Appeal dismissed.
• 2001 BCCA 446     Doern v. Morrison
  Appeal by Police Complaint Commissioner from order quashing Statements of Alleged Disciplinary Defaults issued against police Inspectors; prohibiting the adjudicator from proceeding with a public hearing; and declaring s. 60.1(2) of the Police Act violates principles of natural justice in that it provides for the appointment of an adjudicator in circumstances which create a reasonable apprehension of bias. Appeal allowed; petition dismissed.
• 2001 BCCA 437     Christian Labour Association v. BC Transportation Financing
  The appellant unions commenced an action alleging that the respondents breached the rights of their members to freedom of association under s. 2(d) of the Charter, and seeking relief under s. 24(1). The action related to the employment arrangement between the respondents in relation to a portion of the Skytrain project which had the effect of excluding the appellant unions. The appellants' action was dismissed on the basis that they lacked standing to bring it. Held: Appeal dismissed. Section 27 of the Labour Relations Code was restricted in scope and did not make the unions agents at large for their members for the purpose of seeking relief under s. 24(1) of the Charter. Further, the decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, did not justify the unions seeking Charter relief on behalf of their members except in relation to matters arising in relation to the collective agreement.
• 2001 BCCA 435    GVRD Employees' Union v. GVRD
  The issue on this appeal is whether the decision of the Supreme Court of Canada in McKinney v. University of Guelph stands for the proposition that all government mandatory retirement policies which do not violate provincial human rights legislation are, therefore, justified under s. 1 of the Charter. The issue arose in the context of an arbitration hearing brought by the union on behalf of an individual whose employment was terminated by the GVRD when it discovered he was over 65 years of age. The union challenged the GVRD's mandatory retirement policy on the basis that it violated s. 15 of the Charter and could not be saved under s. 1. The GVRD relied on the McKinney decision as providing a full answer to the s. 1 argument and did not call evidence with respect to s. 1. The arbitration panel found in favour of the grievor and concluded that the employer had not established that its policy was justified under s. 1 of the Charter. Held: Appeal dismissed (Mackenzie J.A. dissenting). The McKinney decision did not decide that all government mandatory retirement policies were saved under s. 1 of the Charter and the onus remained on a government employer to justify its policy of mandatory retirement under s. 1. In the alternative, the time had come for the Supreme Court of Canada to reconsider this issue.   Mackenzie J.A.: Dissenting
• 2001 BCCA 433    Office & Prof. Employees' Int'l Union, Local 378 v. Labour Relations Board of B.C. et al
  The Court restored an order of the Labour Relations Board interpreting s. 68(1)(b) of the Labour Relations Code.
• 2001 BCCA 418    Mousa v. Simon Fraser Health Region
  Dismissal of an appeal from the order of a Supreme Court justice refusing relief from the order of the Environmental Appeal Board. No basis in law or fact to disturb order.
• 2001 BCCA 411    Paul v. Forest Appeals Commission
  There are two issues in this appeal. There is a constitutional issue about whether the British Columbia Legislature has the constitutional capacity to confer on a District Manager, an Administrative Review Panel, and the Forest Appeals Commission an adjudicative function in relation to aboriginal rights and aboriginal title in a forest context. And there is a statutory interpretation issue about whether it has done so in the Forest Practices Code.   Mr. Justice Lambert decides that the appeal should be allowed on the constitutional issue. The Legislature does not have the constitutional capacity in question. Mr. Justice Donald agrees on that issue but would also allow the appeal on the statutory interpretation issue. Madam Justice Huddart dissents on both issues.
• 2001 BCCA 368    Trociuk v. Attorney General (British Columbia)
  Section 3 of the Vital Statistics Act is not unconstitutional.   Prowse J.A. dissenting.
• 2001 BCCA 262    Van Unen v. Workers'Compensation Board
  This appeal is from a decision of a judge of the Supreme Court of British Columbia rejecting a petition for judicial review of six decisions of the Appeal Division of the Workers’ Compensation Board. The appeal was dismissed. The Appeal Division did not fetter its discretion, did not breach the standard of "correctness with appropriate deference" and did not breach the rules of natural justice.
• 2001 BCCA 256    CUPE v.Canada Post Corp.
  Appeal from the refusal of a petition for judicial review. An arbitrator reinstated an employee with a bad absenteeism record on conditions. The issue on judicial review was whether some of the conditions properly accommodated the employee’s disability which caused most of the absences. HELD: the arbitrator did not err in jurisdiction. Appeal dismissed.
• 2001 BCCA 246    Storie v. Association of BC Professional Foresters
  The appellant appealed the dismissal of his petition, claiming that the policies and actions of the respondent Association, that prevented him from writing the registration examination a fourth time and cancelling his enrollment in the Association for a period of three years, were null and void. The appeal is dismissed. The actions of the Association were a valid exercise of its statutory powers; it did not fetter its discretion and it did not deny the appellant natural justice.
• 2001 BCCA 237    Reddy v. Association of Professional Engineers
• 2001 BCCA 216    Canadian Forest Products v. British Columbia
  The court found the trial judge erred in her application of s. 76(1)(c) of the Social Service Tax Act to labels. The labels were applied to lumber products packaged in opaque plastic for protection so the contents could be identified without opening the packages. The court distinguished the labels from the price tags at issue in Army and Navy Department Store Ltd. v. British Columbia (Commissioner of Social Service Tax) (1965), 53 W.W.R. 265.
• 2001 BCCA 209    Excel v. IWA
  Arbitration award raised no issue of ground law and therefore the court has no jurisdiction.
• 2001 BCCA 193    Hallam et al. v. ICBC
  Judicial review of a decision from B.C. Human Rights Tribunal. The Tribunal held that it did not have jurisdiction to entertain a complaint based on a retrospective application of the Human Rights Code. The reviewing judge, applying Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 353, remitted the complaint having found that the complaint required only a prospective application. HELD: The Tribunal’s decision restored. It was correct in its determination of retrospectivity.
• 2001 BCCA 169    Niessen v. Bread of Life Ministries
  Application to review judgment of Braidwood, J.A. refusing leave to appeal a decision of a Supreme Court judge who had before him an order made by a tribunal set up under the Residential Tenancy Act, determining a tenancy was at an end. A release referred to in Braidwood J.A.'s reasons for judgment was not before the court here or below and is irrelevant to the issue of whether leave should be given. Application to vary refused.
• 2001 BCCA 164    Young v. The B.C. College of Teachers
  The appellant teacher's certificate was cancelled because of a sexual relationship with a student. By consent, the decision of the College had to be set aside because of admitted bias. The Chambers judge reduced the suspension to one year because of special circumstances. Held: the circumstances were such that it could not be said the decision appealed against was wrong so the appeal was dismissed.
• 2001 BCCA 159    C.I.B.C. v. British Columbia (Director of Employment Standards)
  Lien given by Employment Standards Act for unpaid wages has priority over charge and claim of court-appointed Receiver-Manager for expenses and remuneration.
• 2001 BCCA 141    Northwood v. Forest Practices Board
  These proceedings were brought for judicial review of the powers of the Forest Practices Board when undertaking a compliance audit. A Supreme Court judge decided that the Board had power to make adverse findings and recommendations about a forest practice, notwithstanding that the practice was in compliance with the Forest Practices Code. The judge applied a standard of "correctness" to the interpretation of the Code.    The appeal was dismissed. Mr. Justice Lambert and Mr. Justice Mackenzie considered that the standard of review was "correctness" coupled with an appropriate measure of deference to the opinions of the Forest Practices Board about the interpretation of the Forest Practices Code. Mr. Justice Hall considered that the standard was simply "correctness".
• 2001 BCCA 116    Premanco v. Ministry of Environment, Lands and Parks
  Application for leave to appeal from decision of Expropriation Compensation Board concerning mining claims. Case bearing some resemblance to recently decided Casamiro case in this Court. Leave to appeal denied because no significant issues of law found, matter had recently been considered by Court and arguments not appearing to have any possibility of success.
• 2001 BCCA 115    Dyck v. Director of Adult Forensic Psychiatric Services
  APPEAL – B.C. Review Board – Criminal Code S. 67272  An appeal from a review disposition of the Board was dismissed on the ground that no error was demonstrated in the Board’s disposition.
• 2001 BCCA 109    Lord v. Warden
  Appeal from orders dismissing petitions. First appeal (from Coultas, J.) academic the petitioner having obtained the right sought and therefor dismissed. Second petition raising issue of constitutionality of orders under Corrections and Constitutional Act. Appeal allowed. Petition remitted.
• 2001 BCCA 104    McQuat v. Law Society of B.C.
  The appellant was disbarred by the Law Society in 1982 and sought reinstatement in 1994. A panel of benchers conducted a hearing in 1999 and refused the application. The appellant alleged that there was reasonable apprehension that the panel, for a number of reasons, was biased. He also argued that the decision was not supported by the evidence. This Court found no merit in any of the grounds of appeal and dismissed the appeal. A second appeal on the issue of costs was also dismissed.
• 2001 BCCA 77    Canadian Union of Public Employees, Local 394 v. Crozier et al.
  The Human Rights Tribunal does not have jurisdiction under the Human Rights Code to add a party.  Appeal allowed; order of Tribunal adding the appellant as a party set aside.
• 2001 BCCA 72     Callow v. BC Labour Relations Board
• 2001 BCCA 22    Collins v. Abrams et al.
  The B.C. Human Rights Tribunal has jurisdiction to decide the constitutionality of s.7(1)(b) of its enabling statute as well as issues of institutional bias and lack of independence. The Chambers judge did not err in the exercise of her discretion on a petition for judicial review to remit the case to the Tribunal so that it could complete its task by deciding these questions.
• 2001 BCCA 7    H.M.T.Q. v. Beach
  The chambers judge approved a proposal under the Bankruptcy and Insolvency Act that included a clause effectively exempting the debtor from tax liability under s.88 of the federal Income Tax Act. This court sent the matter back for reconsideration because of illegality of the clause.

YUKON JUDGMENTS

• 2001 YKCA 13      Reddoch v. The Yukon Medical Council
  Appeal from order dismissing doctor's appeal from findings of Inquiry Committee and the Yukon Medical Council that the appellant was guilty of "unprofessional conduct" concerning a patient suffering from botulism cared for by the on-call physician on the weekend and by the appellant upon his return to the hospital.    The words "unprofessional conduct" in the Yukon Medical Profession Act do not encompass the appellant's acts of omission, summed up as "a failure to exercise reasonable care and skill in the management of one patient whom neither he nor three other physicians believed to be gravely ill". The route which should have been followed was s. 22, an investigation into the standard of practice of the appellant, not s. 24. When the issue is one of a failure of reasonable care, "the conduct of the physician in order to constitute "unprofessional conduct" must have about it some quality of blatancy - some cavalier disregard for the patient and the patient's well being." There was no blatant disregard here. Appeal allowed.
• 2001 YKCA 7        Greka Energy Corp. v. Northsun Energy Ltd.
  In the Yukon Supreme Court the respondent obtained an order for an interim injunction under s. 243 of the Yukon Corporations Act. They Yukon Court of Appeal set aside the injunction on the basis that there was no application for this relief sought in the petition and no opportunity for the appellant to meet the argument that such relief should be granted.
• 2001 YKCA 2    Yukon Energy Corporation v. Yukon Utilities Board
  Administrative law – Yukon Public Utilities Board – Rate increase sought by appellant Yukon Energy Corporation – issue as to substantial bad debt of Corporation arising from agreement with Faro Mine – Board denying inclusion of bad debt in rate structure saying agreement and bad debt not prudently incurred – Corporation asserts error of law as to standard applied by Board to this bad debt – Corporation says correct standard is reasonableness – submissions before Board by Corporation referred only to prudent – Board deciding on basis of case put to it by Corporation – appeal dismissed.