Posted Tuesday, August 26, 2014:
Paldi Khalsa Diwan Society v. Cowichan Valley (Regional District),
2014 BCCA 335
Court of Appeal
The Court allowed the appeal from a decision that found that a commercial crematorium, which the appellants owned and operated, was not a permitted use under the zoning bylaws. The crematorium was an “institution” that served public needs, which was permitted in the zone. The bylaw did not distinguish between commercial and non-commercial institutions.
Posted Monday, August 25, 2014:
L.S. v. G.S.,
2014 BCCA 334
Court of Appeal
In 2011, a trial judge made an order for divorce and permitted the respondent mother to move the children with her to Israel. In April 2012, this Court allowed the appellant father’s appeal, set aside the mobility order made at trial, and ordered the children be returned to Vancouver. This Court also ordered joint custody with primary residence to the appellant and access to the respondent in Vancouver on a shared parenting basis, all under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), and joint guardianship under the Family Relations Act, R.S.B.C. 1996, c. 128.
The appellant and children returned to Vancouver, and the respondent followed. The Supreme Court of British Columbia then varied the respondent’s access to order access on an “equal parenting” basis on a seven-day rotation.
When the respondent had an episode of her bipolar disorder, a judge made an “interim” order that replaced the respondent’s access with supervised access. When the respondent recovered, another judge varied the “interim” order and reinstated access on a three-day rotation between the parties, with conditions for the respondent. The appellant appealed.
A month later, the appellant brought various applications under the Family Law Act, S.B.C. 2011, c. 25, based on the respondent’s failure to return the children to Vancouver in accordance with this Court’s April 2012 order. The judge dismissed the applications. The appellant also appealed from that order.
The two appeals were heard together.
Held: As to the first appeal, the judge correctly narrowed the issue before him to whether there had been a material change in circumstances since the respondent’s admission to hospital in light of her recovery and unconditional release from hospital. It was open to the judge to find the respondent’s recovery constituted a material change in circumstances since her admission to hospital, and to reinstate access on an equal parenting basis, on conditions.
As to the second appeal, this case was not commenced, litigated, or concluded under the Family Law Act. This Court’s discretion to address new issues not previously raised is generally exercised sparingly and only where the interests of justice require it. It is not in the interests of justice for this Court to engage in the exercise of statutory interpretation required to resolve issues of jurisdiction not argued before the trial court.
Posted Thursday, August 21, 2014:
Robertson v. British Columbia (Teachers Act, Commissioner),
2014 BCCA 331
Court of Appeal
In 2007, the British Columbia College of Teachers commenced an investigation into allegations of historic sexual misconduct on the part of the respondent, Mr. Robert John Robertson, a teacher. In 2011, following the investigation, the College’s Discipline Hearing Sub-Committee issued a citation notifying Mr. Robertson that a hearing would be held to inquire into his conduct.
Mr. Robertson applied to have the proceeding stayed on several grounds, including abuse of process by delay. The allegations of sexual misconduct had been reported in 1976 to the body that then had the authority to cancel a teacher’s certificate of qualification; however, for unknown reasons, the complaint was not adjudicated. Mr. Robertson argued that allowing the hearing to proceed was an abuse of process on account of the prejudice attendant to the thirty-five year delay between the time the allegations were first made and the citation being issued. The panel did not agree and dismissed his application. Mr. Robertson applied for judicial review.
The judge hearing the judicial review decided that the panel erred in its abuse of process by delay analysis in regards to the sexual misconduct allegations. She remitted the application to the panel for reconsideration in accordance with her reasons for judgment.
Held: Appeal allowed. The majority held, (per Garson J.A., Goepel J.A. concurring) that the decision of the panel be restored, and the application to strike the citation be dismissed. The cross-appeal is dismissed.
The majority decided that the standard of review was governed by the Administrative Tribunal Act, S.B.C. 2004, c. 45, (“ATA”). The question that was before the panel was a question falling under s. 58(2)(b) of the ATA : a question “about the application of common law rules of natural justice and procedural fairness [that] must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly”. This question requires a correct response.
Applying the principles set out in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, the court considered if Mr. Robertson had suffered individual prejudice or hearing prejudice, and agreed with the panel that he had not established such prejudice despite the 35-year delay in proceeding. As for the question of public prejudice, the court agreed with the panel holding that permitting Mr. Robertson to avoid facing a disciplinary hearing in these circumstances would carry with it a serious risk of bringing the regulatory process into disrepute.
Willcock J.A. dissented and would have dismissed the appeal.