2013-2014 Administrative Law Review: Dynamic Tension

1. 2013-2014 Administrative Law Review:Dynamic Tension Adele J. Adamic Barrister and Solicitor Labour, Employment, Human Rights Group Legal Services Branch Ministry of Justice Vancouver

2. Privacy, What Privacy? • Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 [2013] 3 S.C.R.733(SCC) • Charter Rights/Freedom of Expression/Labour Relations/Privacy. • Union videotaped and photographed individuals crossing its picket line at a casino for use on union website. • 305 day lawful strike. Union and employer videotaped those crossing the picket line. • Individual complained to Privacy Commissioner about union video taping. • Under PIPA “organizations” cannot collect, use, or disclose “personal” information without consent.

3. Issue: Whether PIPA achieves an acceptable balance between an individuals control of their privacy and the union’s freedom of expression during a lawful strike. • PIPA contained no balancing mechanisms between privacy and other protected interests. • Conclusion: The infringement of PIPA on freedom of expression is disproportionate to the legislative aim of protecting an individuals control of their personal information. • Alberta government, at their urging, given a period of time to re-work the statute.

4. Deference to Expertise of the Decision Maker • Mclean v. British Columbia (Securities Commission) [2013] 3 S.C.R.845(SCC) • Appeal by former corporate director from British Columbia Securities Commission against a 5 year ban in trading in securities, and a 10 year ban from acting as a director/officer of certain registered entities. • British Columbia order based on Ontario order against appellant, which was in turn based on her admissions to the Ontario body that she had been involved in improper activities as a director of Hucamp Mines Ltd. from 1996 to 2001. • In 2008 McLean consented to the Ontario Securities Commission making an order against her. • British Columbia found that the limitation period (6 years) ran from the date of the Ontario order

5. Found: • Where there are multiple “reasonable” interpretations of a statute, interpretation will often involve policy decisions that the legislature wanted the administrative law decision maker to make and not the courts. • Deference to any “reasonable” interpretation of the provision by the administrative law decision maker. • Administrative law decision makers are meant to interpret and apply their “home” statute, not the courts. • Goal of improving interprovincial co-operation.

6. Only questions that fall within an “exceptional category” warrant the courts applying a correctness standard of review (General questions of law of importance to the whole legal system, and outside expertise of the decision maker). • Limitation periods: must look at the purpose of the limitation and the purpose of the statute as a whole.

7. Broad and Vague? Sobeys West Inc. v. College of Pharmacists of British Columbia 2014 BCSC 1414 (Hinkson C.J.) • Sobeys owns Safeway in B.C., Jace Holdings owns and operates Thrifty Foods, both operate pharmacies in their grocery stores. • Issue: the use of customer benefit or loyalty programs (“incentive programs”) for the purchase of drugs and equipment from the pharmacies. • Pharmacies governed by the College of Pharmacists of British Columbia (Legislation: Health Professions Act and Pharmacy Operations and Drug Scheduling Act) • Petitioners sought an order to quash certain bylaws made by the college, the “Incentive Prohibition Bylaws”. • Incentive means “money, gifts, discounts, rebates, refunds, customer loyalty, schemes, coupons, goods or rewards.

8. Issues: • What evidence is there of actual harm that could justify a broad prohibition of incentives. • Prohibitions go beyond what is necessary to address the theoretical harms identified by the college - The net effect of the bylaws is harmful to the public interest • Statute gives college power to regulate pharmacies in the public interest

9. Few complaints ever filed with the college, and those were after the challenged bylaw came into effect. • Report commissioned by the College concluded that “there was no evidence loyalty programs harmed “patients” (customers) • Public response to the college opposed prohibition of incentive programs • Reasonableness of a bylaw determined by: • processes followed by College. • Whether outcome falls within a “reasonable” range of alternatives in light of the Legislative scheme. • Contextual factors relevant to the exercise of power.

10. Exercise of determination must be based on established facts • Conclusion: Colleges decision to pass the Bylaws falls outside a range of acceptable outcomes given completing public interests and ability to pass narrower bylaws.

11. Administrative Law “Writ” Large Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (Rotnslein J.) • Issue: Appropriate standards of review of commercial arbitral decisions made under the Arbitration Act (RSBC)? • Did the Arbitrator (Leon Getz) “reasonably” construe the contract as a whole? • Contractual interpretation: question of “law”, or “mixed fact and law”? • Matter goes up and down and sideways for a few years….

12. Contractual interpretation is a matter of “mixed fact and law” and: • Words of the contract • “Factual matrix” of the contract • Appeals of arbitration awards and judicial review of administrative decisions are “analogous in some respects” • Arbitrators reasoning's must meet the reasonableness threshold of: justifiability, transparency, and intelligibility (Dunsmuir). • Balance between reviewability and finality. • Consider knowledge that was, or reasonably ought to have been, within the knowledge of both parties at or before the date of contracting.

13. Arbitration is meant to provide a speedy and final dispute resolution mechanism tailor made for the parties. • Both commercial arbitration and judicial review involve a court reviewing the decision of non-judicial decision makers. • Expertise is a factor in both judicial reviews and commercial arbitration.

14. Vexatious Litigants : The End of the Spectrum Fearn v. Canada Customs 2014, ABQB 114 • Meads v. Meads – Part II (185 to 95 pages) • Issues: • Should Fearn receive the remedies he seeks? • Should Fearn’s access to the court be restricted, and if so in what manner? • Should costs be ordered against Fearn? • Should there be other responses to Fearn’s litigation documents and in court statements

15. Fearns arrested by Canadian Border Services in an incident October 11, 2013. Criminal prosecution ensues • Organized Pseudo legal Commercial Argument [“OPCA”]/Sold online by “Gurus”, “flights of conspirational fancy and wish fulfillment.” • Fearn part of Sovereign Citizens/Men, U.S. group with a past of illegal and violent action. • Court declined to award costs, but restricted right to file further materials in January 2014, with more detailed reasons to follow. • Collateral Attack/proper procedure (British Columbia (WCB) v. Figliola, 2011, S.C.C.) trying a different forum rather than the designated route

16. Pleading is frivolous if its substance indicated bad faith or it is factually hopeless. • Fearn was vigorous and meritless across many jurisdictions. • Vexatious litigation as an “attack” on the courts.