June 2011 – Important New Licensing Appeal Board Decision

On June 13, 2011, the Community Care and Assisted Living Appeal Board released its decision in Coleman v. Fraser Health Authority; an important decision setting out how the Appeal Board will approach all future appeals brought before it.

First of all, some background.  In 2008, the Supreme Court of Canada gave its decision in Dunsmuir v. New Brunswick which changed the law regarding the standard of review and the degree of deference which courts and administrative appeal boards should apply on any appeal before them.  Until the Coleman decision, the Community Care and Assisted Living Appeal Board had not made a decision about how the Dunsmuir case would affect proceedings before the Appeal Board.

In Coleman, the Appeal Board asked the Appellant and the Respondent to make submissions on how, if at all the Dunsmuir decision should affect an appeal before it.  In its decision, the Appeal Board ruled that the Dunsmuir case was inapplicable due to the wording in the Community Care and Assisted Living Act (the “Act”).  Section 29(11) of the that Statute provides:

“The Board must receive evidence and argument as if a proceeding before the Board were a decision of first instance but the applicant bears the burden of proving that the decision under appeal was not justified.”

Section 31.1 of the Act provides that:

“The Board has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in an appeal under section 29 and to make any order permitted to be made.”

In Coleman, the Appeal Board decided that the Supreme Court of Canada Dunsmuir decision did not apply to appeals before it for two reasons.

First, the Act in section 29(11) establishes the burden of proof and test which the Board must apply on appeals before it; namely whether the decision under appeal was not justified.

Secondly, sections 29(11) and 31.1 of the Act created a “mixed model appeal” with a hearing at first instance that invites both fact-finding and the exercise of discretion by the Appeal Board rather than just a narrow review of the decision made by the Licensing Officer.

This decision by the Appeal Board is of great significance for Licensing Officers under the Act as it clarifies how proceedings before the Appeal Board will be conducted from now on.  The complex analysis required by the Supreme Court’s Dunsmuir decision can be avoided and the Licensing Officers need only to focus on the clear provisions in sections 29(11) and 31.1 of the Act for their strategy and approach on any appeals made against their decision.