Sections Update | April 2019

  • April 01, 2019

Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision-makers such as a board, tribunal, commission, agency or minister.

Administrative Law 

With cannabis legalization, careful consideration was given to administrative law issues arising in the newly legalized cannabis industry during the November 29, 2018 Administrative Law Section meeting. The speakers brought their professional experiences in working in this field, with Sara Dubinsky of Lidstone & Company and Kirk Tousaw of Tousaw Law Corporation addressing municipal and administrative law issues relating to cannabis. Sara and Kirk identified guidelines for how practitioners should approach cannabis issues when they intersect with administrative law and spoke to administrative law issues and court challenges that are expected to arise in the future for cannabis.

Sara and Kevin predominantly discussed federal, provincial, local and third-party/private regulatory authority over cannabis; BC cannabis distribution scheme for operating rules and requirements; the role of local governments in regulating retail stores; the key intersection with administrative law; and upcoming legal/regulatory/industry challenges.

Watch a recording of this webinar online

Administrative Law with the Social Justice and Human Rights Law 

The Administrative Law Section joined with the Social Justice and Human Rights Law Section on October 25, 2018 to welcome Monique Pongracic-Speier, QC, Ethos Law Group, and Kevin Love, Community Legal Assistance Society to discuss recent developments in access to justice and tribunals. Conversations included higher court decisions regarding administrative tribunals (e.g. Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31), that have worsened the state of access to justice in Canada, especially for marginalized communities.

Referring to the large number of administrative decision-makers, one of the issues Kevin and Monique addressed was what an ordinary person must do to figure out the processes and who to talk to, especially where the jurisdictions of the various decision-makers intersect and overlap. The second theme discussed was how the administrative decision-making processes have/are becoming too complicated for the ordinary litigant. The speakers also spoke to statutes of general (or perhaps not so general) application – what are some of the challenges of arguing the Charter or the Human Rights Code before statutory decision makers? Kevin and Monique ended their session with a discussion on administrative tribunals and courts, and therein where the dividing lines be drawn.

Watch a recording of this webinar online

Charities and Not-for-Profit Law

Anil Aggarwal, Legal Counsel at College of Registered Nurses of BC, and Martha Rans, lawyer, joined the Charities and Not-for-Profit Law Section on September 18, 2018 to discuss the Civil Resolution Tribunal (“CRT”) process and the expansion of the jurisdiction of the Civil Resolution Tribunal to societies under the BC Societies Act. Anil and Martha provided several practice points for everyone who is working in this field. First, societies must be more attentive in keeping a membership Registry. Secondly, societies need a policy in place to address requests for access to information and a signed statement if a request for access is denied. Lastly, societies must have a privacy policy and provide the necessary related privacy training.

From this discussion, questions arose about the discipline process and how it does not really exist in Schedule B. An issue that arises on the matter of discipline involves occupational societies, because these societies often need the ability to discipline their members in order to receive insurance coverage, as seen with athletes for example.

Lastly, discussing if a lawyer is needed when facing the CRT, Anil expresses it is in the best interest to involve lawyers because it is directors and council members who are asked to defend claims that have been brought to the CRT. Anil reminds us that these people are volunteers, and it is asking a lot of them to defend the claims before them when considering all the time that is needed to go through the CRT process. Feelings of defensiveness are created, which can ultimately have the effect of dissuading people from sitting on boards and being directors – this is a societal negative.

Watch a recording of this webinar online

New Section: Workplace Investigations

On February 2, 2019, CBABC Provincial Council approved the formation of a Workplace Investigations Section. This Section will focus on improving the quality of workplace investigations by providing meaningful opportunities for lawyers to learn and discuss changes in relevant legislation, as well as case law updates, and best practices.

Lawyers in BC are increasingly required to be informed about the law and best practices in relation to workplace investigations, both in advising clients involved in an investigation, and where the lawyer is retained as an independent investigator. In addition to investigating allegations of bullying and harassment or misconduct generally, lawyers are now increasingly retained to investigate allegations of sexual harassment in the workplace. Workplace investigations can be lengthy and complex, and involve diverse areas of the law – human rights, privacy, workplace safety, evidence, privilege, administrative principles of fair process, and contractual elements involving employer policies. 

Workplace investigators synthesize a large amount of evidence, make factual findings and produce comprehensive reports that may also include legal advice. Best practices require awareness of bias, as well as considerations of implementing alternative dispute resolution.

Enroll into this Section