Litigation Brief

Court of Appeal upholds "reasonable" decision by Property Assessment Appeal Board

The Court of Appeal has upheld an order of the Supreme Court dismissing an appeal by Weyerhaeuser Company Limited (“Weyerhaeuser”) of a decision of the Property Assessment Appeal Board (the “Board”).

Weyerhaeuser owned two vacant waterfront properties, and the Board rezoned these lots from rural (RU) to CD-5, which resulted in increased property taxes. The issues on appeal were whether the Board’s decision, which turned on the interpretation of one of its own statutes, should be reviewed on a correctness or reasonableness standard and, correspondingly, whether the Board’s decision was incorrect or unreasonable.

In Weyerhaeuser Company Ltd. v. Assessor of Area No. 04 - Nanaimo Cowichan, 2010 BCCA 46,  the Court of Appeal applied the four-part analysis from Dunsmuir v. New Brunswick, 2008 SCC 9 to determine that the reasonableness standard of review applied, noting that under Nolan v. Kerry (Canada) Inc., 2009 SCC 39 the reasonableness standard requires deference to a tribunal interpreting its own statute. The Court then looked at the interpretation made by the Board and concluded that it was neither “indefensible” or “outside a range of reasonable possible outcomes.” Accordingly, the Court upheld the Chamber judge’s decision and dismissed the appeal.

To read the full decision of the Court of Appeal, click here.

BC Securities Commission holds it has power to review governance of self-regulatory body

Partners in Planning Financial Services Ltd. (“Partners”) applied under s. 28(1) of the Securities Act, RSBC 1996, c. 418 (the “Act”) for a hearing and review of the Mutual Fund Dealers Association of Canada (the “MFDA”)’s procedure for approving amendments to its bylaws.  Among other allegations of procedural impropriety, Partners maintained that the MFDA's board sought to increase term limits for directors during a time in which the board was composed in part by directors whose term limits had since expired, and that the MFDA pressured members to provide proxies for a special meeting through the participation of compliance staff in the proxy solicitation process.  

In a decision report as 2009 BCSECCOM 665, the British Columbia Securities Commission (the “BCSC”) held that "it is essential that  [regulatory organizations] operate, and are seen to operate in a manner that leaves no room to question the integrity of their governance, procedures and practices".  It held that the allegations at issue were precisely those that could raise such concerns, and allowed the hearing under s. 27(1) of the Act, which permits the BCSC to initiate such reviews when in the public interest to do so.  The BCSC did not make a decision as to the applicability of s. 28(1) of the Act, which enables a person to apply to the BCSC for a hearing and review if a person is affected by, among other things, a decision of a self-regulatory body.

To read the full BCSC decision, click here.

Clearly Contacts given 6 months to develop new business model

The College of Opticians has successfully obtained an injunction that could close Clearly Contacts, a popular online vendor of contact lenses, if it does not change the way it sells prescription products with the next six months.

Court of Appeal finds Workers' Compensation Board decision to have been reasonable but procedurally unfair

In Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, the Workers’ Compensation Board ("WCB") appealed a decision by the BC Supreme Court quashing four orders in which the WCB had found that Petro Canada was an “employer” at service stations that were actually operated by franchisees. The Court of Appeal held that the Supreme Court had erred in quashing the WCB orders on the grounds that they were unreasonable. The Court of Appeal nevertheless quashed two of the orders on the grounds that Petro-Canada had been denied procedural fairness in respect of the review of those orders.

To read the full decision, click here.