Anana v. Lakeland College Faculty Association, 2011 ABQB 313

Court of Queen ’ s Bench of Alberta Citation: Anana v. Lakeland College Faculty Association, 2011 ABQB 313 Date: 20110510 Docket: 1003 03880 Registry: Edmonton Between: Dr. Raymond Anana Applicant (Plaintiff) - and - The Lakeland College Faculty Association and the Lakeland College Faculty Association Professional Standards Committee Respondents (Defendants) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] In June 2009, the Lakeland College Faculty Association Professional Standards Committee (“PSC”) found the Applicant contravened the Code of Conduct and Ethics of the Lakeland College Faculty Association (“Association”), and imposed sanctions

against him. In September 2009, the Board of Directors of the Association (“Board”) denied the Applicant’s request for an appeal of the PSC’s ruling. The Applicant applies for judicial review of both decisions. II. Background Facts [ 2 ] The Applicant has been employed as a chemistry/biochemistry instructor with Lakeland College since 1997. He has been an active member of the Association since 1997. [ 3 ] At the Annual General Meeting of the Association on April 30, 2009, elections were held for various Board positions. The Applicant and Michael Crowe were candidates for the position of President.

The outgoing President, Neil Maclean, publicly endorsed Mr. Crowe. The election resulted in a tie vote between the Applicant and Mr. Crowe. Mr. Maclean broke the tie by voting in favour of Mr. Crowe. [ 4 ] The Applicant expressed the view that Mr. Maclean’s conduct and the election process constituted a breach of the Association’s Code of Conduct and Ethics (“Code”). He sent an email on May 1, 2009, to Audra Baddock (Executive Director of the Association), Mr. Maclean and Al Motley stating that he was “shocked by the blatant violation of the election process by Neil, our current President”.

On the same date, he sent a further email to the entire Lakeland College Faculty stating that it was not “ethically and morally right” for Neil Maclean to cast the vote that decided the outcome of the election and that Mr. Maclean’s statement that, “I don’t care, Raymond, you can do whatever you want” was a “mark of blatant arrogance and disrespect for rules and due process”. [ 5 ] On May 4, 2009, Mr. Maclean wrote to Ms. Baddock stating that he would like to file a grievance with the PSC against the Applicant on the basis that the email of May 1, 2009 “contained derogatory allegations and criticism” about Mr.

Maclean which compromised his “reputation as an honest, trustworthy and competent individual.” Mr. Maclean further suggested that all subsequent emails be examined. [ 6 ] The Applicant called for a re-election of the President “as soon as possible”. On May 7, 2009, the Association met and denied the request for a re-election of the President.

Members of the Faculty were advised of the decision by email on May 8, 2009. [ 7 ] On May 8, 2009, the Applicant sent another email to the entire Faculty encouraging support for the incoming President but also stating that: We cannot afford to continue to be complacent and allow an individual or a few individuals to hijack and run the Association, however they deem fit, using deceit, fear-mongering and intimidation to attain their ends. The Applicant acknowledged in Questioning that the “individual” referred to was Mr.

Maclean. [ 8 ] By letter dated June 9, 2009, the Respondents advised the Applicant that the PSC had received a grievance from Mr. Maclean alleging that the Applicant had publicly criticised him and that the criticism was a breach of the Code. The letter requested the Applicant’s attendance at a hearing of both parties on June 15, 2009, and set forth the following agenda: 1. Chair announces order of proceedings of the hearing and overview of grievance; 2. Neil Maclean provides a statement and a desired resolution/outcome; 3. Raymond Anana provides a statement and desired resolution/outcome;

4. Hearing Committee has the opportunity to ask questions; 5. Neil Maclean and Raymond Anana have the opportunity to make any other submissions regarding the grievance. [ 9 ] By letter dated June 11, 2009, the Applicant requested particulars of the grievance. He also indicated that he would be on holidays from June 15, 2009 to August 11, 2009, and that any hearing must be after August 11, 2009. [ 10 ] By email dated June 11, 2009, the Applicant was provided with copies of emails alleged by Mr.

Maclean to contain “derogatory allegations and criticisms” that compromised his “reputation as an honest, trustworthy and competent individual”. The grievance itself was not included in the materials attached to the email. [ 11 ] By email dictated June 15, 2009, Ms.

Baddock advised the Applicant that the PSC was “required to deal with grievances in a timely manner” and provided the alternate date of June 18, 2009 for the hearing. [ 12 ] By email response of the same date, the Applicant again advised that he would be on vacation from June 15, 2009 to August 11, 2009, and that it was “not possible” for him to attend the hearing on June 18, 2009. He confirmed that he was available any day after August 11, 2009, and that he was “very eager to attend the hearing”.

He further indicated that other instructors who might be called as witnesses were also on vacation at that time. [ 13 ] By email dated June 16, 2009, Ms. Baddock acknowledged that the Applicant was “currently away on vacation and involved in personal and family activities” but affirmed that the PSC had an obligation to complete the grievance process in a timely manner and that it would proceed on June 18, 2009.

The email further indicated that the Committee expected the Applicant’s presence at the meeting and that his “failure to attend will void your opportunity to participate in the hearing process”. [ 14 ] By return email dated June 17, 2009, the Applicant confirmed that he could not attend the hearing on June 18, 2009 while on vacation, and stated that he was “once again asking the Committee to wait until August 11, 2009, when I am back from my vacation.” [ 15 ] The hearing proceeded in the absence of the Applicant on June 18, 2009. The Minutes of the Meeting reflect the comments made by Mr.

Maclean which included: · the Applicant breached the Code by [criticizing] a colleague without first going to that colleague; · the Applicant’s emails said things that were untrue which could ruin a career and reputation if not corrected; · irreversible damage was done by calling the President into question. The Minutes indicate that the Hearing ended at 5:05 p.m. and the PSC then “reviewed all the email evidence and discussed email and Neil’s statement.” [ 16 ] The Minutes then reflect the following: Motion:

Ian Kossey/Dez Shubert move that upon review of the email evidence and listening to the statement of Neil Maclean at the June 18 hearing that Dr. Raymond Anana has contravened

Section 6 of the LCFA Code of Conduct and Ethics. Carried. Hearing Committee reviewed the list of possible sanctions and discussed these keeping in mind the amount of email evidence and the need to move on with Association business. Discussion. Motion: Ian Kossey/Arne Nelson move that Dr. Anana has to forward a public apology pre-approved by the PSC Committee to the Faculty Association members as a whole and further that Dr. Anana be sanctioned from holding office or attending any Association meetings for the period of June 18, 2009 to June 18, 2013 effective immediately.

This shall terminate any and all LCFA positions currently held by Dr. Anana. Carried. [ 17 ] By letter dated June 22, 2009, the PSC advised the Applicant that it had found that he had “contravened number 6 of the Lakeland College Faculty Association’s Code of Conduct and Ethics” and listed the sanctions imposed. [ 18 ] By letter dated August 12, 2009 attached to an email dated August 13, 2009, the Applicant advised the Association that he was appealing the decision of the PSC and requested a formal hearing of the appeal. [ 19 ] By email dated September 4, 2009, Ms.

Baddock advised the Applicant that a meeting of the Board of Directors had been scheduled for September 8, 2009, to review his letter requesting an appeal and “for the Board to determine the next step”. The Applicant was invited to attend the meeting to introduce his letter of appeal, explain the reasons for his decision to appeal and to have an opportunity to formally speak to the Board. The Applicant did attend and presented written and oral submissions to the Association in support of his request for an appeal. Mr.

Maclean had also been invited but declined to attend. [ 20 ] The only agenda item referred to in the Minutes of the meeting of September 8, 2009 was a “review of Dr. Raymond Anana’s appeal letter”. The Minutes are one page in length and indicate the following: Dr. Raymond Anana joined the meeting at 5:42 p.m. He presented his appeal to the Board of Directors, and left the meeting after he answered questions directed from Board members. MOTION: N. King/S. Pratt move that the Board of Directors denies Dr.

Raymond Anana’s request for an appeal of the rulings of the Professional Standards Committee as contained in their June 22, 2009 letter. Carried. MOTION: T. Rowat/A. Jones move that the chair of the Professional Standards Committee meet with Dr. Raymond Anana to explain the sanctions imposed by the Committee on Dr. Raymond Anana by September 22, 2009. Carried.

The Board of Directors had no objection to any or all of the members of the Professional Standards Committee being present for the sanction explanation. [ 21 ] On March 8, 2010, the Applicant filed the Originating Notice for his Application for Judicial Review of the decision of the PSC dated June 18, 2009, and the decision of the Board of Directors dated September 8, 2009. III. The Constitution of the Association

[ 22 ] The Constitution of the Lakeland College Faculty Association was adopted on September 17, 1978.

Article II lists the aims of the Association which include: 6. To create, renew and maintain professional conduct among the members of the Association in accordance with the Association Code of Conduct and Ethics. [ 23 ]

Article VII of the Constitution lists the various committees of the Association including the Professional Standards Committee. It sets out the general responsibility of the PSC as follows:

b) This Committee shall be responsible for procedures regarding faculty evaluation, Code of Ethics, and faculty selection. [ 24 ] The PSC has never set out practices and procedures for the hearing of complaints against faculty members for alleged breaches of the Code of Conduct and Ethics. [ 25 ] Appendix II to the Constitution is the Code of Conduct and Ethics. With respect to colleagues, the Code provides that the Association shall encourage its members to conform to the following: 6.

A member will refrain from unfavourable criticism of a peer except in confidence to the appropriate officials, after informing the colleague of the criticism. 7. A member will submit to the Professional Standards Committee disputes arising from professional relationships with colleagues which resist resolution by personal discussion.

The Board Faculty Board of Directors (sic) shall be the final arbiter of all such disputes. [ 26 ] Neither the Association, the Professional Standards Committee nor the Board of Governors has ever set out the practices or procedures to be followed by the Professional Standards Committee in hearing a dispute raising an alleged Code violation.

No process has been established to be followed when the Board of Directors is called upon to be “the final arbiter” of such disputes. [ 27 ] The Code of Conduct and Ethics is also attached as Appendix VI to the Collective Agreement between the Board of Governors of Lakeland College and Lakeland College Faculty Association. IV. Preliminary Limitation Issue [ 28 ] The Applicant is seeking Judicial Review of the decision of the PSC dated June 18, 2009 holding that the Applicant had contravened

Section 6 of the Code and imposing sanctions upon him. The Applicant filed the Originating Notice seeking Judicial Review on March 8, 2010, pursuant to

Part 56.1 of the Alberta Rules of Court as they then existed (“the Old Rules ”). [ 29 ] Rule 753.11(1) of the Old Rules imposed a six month limitation period for bringing an application seeking Judicial Review.

Section 753.11(2) provided that Rule 548, which permitted a court to enlarge or abridge the time appointed by the Rules , did not apply to Rule 753.11(1). [ 30 ] Similarly, Rule 3.15(1) of the Rules of Court which came into force on November 1, 2010 imposes a six month limitation period for bringing an application for Judicial Review. Rule 3.15(2) provides that Rule 13.5 which allows the court to extend or shorten a

time period does not apply to Rule 3.15(1)). [ 31 ] The Applicant failed to file his Originating Notice seeking Judicial Review of the decision of June 18, 2009 within the time limit prescribed by the Rules of Court . [ 32 ] The Applicant argues that the Board’s hearing on September 8 was, in fact, a continuation of the original hearing by the PSC, which, therefore, did not conclude until September 8, 2009. [ 33 ] The Respondents argue that a party cannot rely upon a later decision (September 8, 2009) as a doorway to challenging an earlier decision (June 18, 2009) thereby escaping the provisions of the limitations set out in the Rules ( Nguyen v.

Alberta (Appeals Commission for Alberta Workers’ Compensation ), 2008 ABQB 624 ). [ 34 ] The actual request by the Applicant was set out in his letter of August 12, 2009 which was stated to be in reference to: Re: Appeal of the Decision of the Professional Standards Committee on the Grievance Regarding Dr. Anana’s Public Criticism of Neil Maclean. [ 35 ] The Applicant then referred to the PSC decision and stated: The decision of the Professional Standards Committee is unacceptable to me. The decision is “biased, unfair, unjust and disrespectful” as further explained below.

I am therefore appealing the decision. [ 36 ] In its letter to the Applicant dated September 8, 2009, the Board stated that the purpose of the meeting was to review the Applicant’s letter “requesting an appeal and for the Board to determine the next step. This meeting is not a formal hearing”. [ 37 ] The Applicant firmly stated in his letter of August 12, 2009 that he was appealing the decision of June 18, 2009 of the PSC. He was not asking for permission to appeal the decision but rather, was advising the Board that he was doing so.

The Board denied the request to appeal. [ 38 ] When questioned on his Affidavit, the Applicant stated that he had used the opportunity of the meeting of September 8, 2009 “to appeal to the Board for a formal hearing so that they can hear both sides and then make an informed decision, which they declined”. [ 39 ] I interpret the correspondence from the Applicant and his statement during Questioning as a clear request for a formal hearing by the Board of an appeal from the PSC decision of June 18, 2009.

Therefore, it was not a continuation of the July hearing. [ 40 ] Alternatively, the Applicant argues that he could not seek Judicial Review of the July decision until he had exhausted all available appeal remedies which did not occur until the Board rendered its decision on September 8, 2009. [ 41 ] Generally, the existence of a right of appeal bars quashing by judicial review: W. Stevenson, J. Côté, Civil Procedure Encyclopedia (Edmonton: Juriliber, 2003) at 79-24 and authorities cited therein. Here, the Applicant was aware by September 9 of the outcome of his attempt to appeal the June 18 decision.

Therefore, the appeal process upon which he embarked was not an impediment to filing the Originating Notice in relation to the June 18 decision within the six month limitation period. [ 42 ] I find that the application for review of the June 18 decision is barred by the six month limitation.

[ 43 ] The Originating Notice applying for Judicial Review of the Board’s decision of September 8, 2009 was filed within the requisite six month time limit set by the Rules of Court . V. Judicial Review Issues [ 44 ] The following issues are raised regarding review of the September 8, 2009 decision. A. Is the September 8, 2009 Board decision subject to Judicial Review? B. Did the Board breach a duty of procedural fairness or err in rendering its decision? A.

Is the decision of the Board dated September 8, 2009 subject to Judicial Review? [ 45 ] In relation to the limitation issue, the Respondents argued that the letter of August 12, 2009 directed by the Applicant to the Board was a request for an appeal.

However, the Respondents also contend that the letter of August 12, 2009 directed by the Applicant to the Board was simply a request of the Board to reconsider the earlier decision of the PSC and the Board’s denial of the request for an appeal was nothing more than a decision not to reconsider, and as such is not amenable to review. [ 46 ] When questioned on his Affidavit, the Applicant stated that he had used the opportunity of the meeting of September 8, 2009, “to appeal to the Board for a formal hearing so that they can hear both sides and then make an informed decision, which they declined”.

The Respondents suggest that this indicates an acknowledgement by the Applicant that he was seeking a reconsideration of the original decision as opposed to seeking a hearing date for an appeal from that decision. Ordinarily, a reconsideration of one decision appealed in time would not resurrect the right to review an earlier decision for which a notice was not filed in time. [ 47 ] The Respondents argue that since no new evidence was presented to the Board for its review, a determination not to direct an appeal hearing is not subject to Judicial Review ( Videotron Telecom Ltee. v.

Communications, Energy and Paperworkers Union of Canada , 2005 FCA 90 at para. 10 ). Alternately, if fresh evidence was heard, then consideration of that fresh evidence by the Board concerning the same subject matter of the earlier decision constitutes reconsideration ( Dilcox v. Alberta (Workers’ Compensation Board) , 2006 ABQB 596 at para. 23 ). [ 48 ] In determining whether a decision of a panel is a refusal to reconsider or a reconsideration decision, the Court reviews the representations made to the parties respecting those decisions ( Esposito v.

Alberta (Workers’ Compensation Board) , 2009 ABQB 188 at paras. 62 to 64 ). [ 49 ] The decision of the Board was not a denial by the Board of a rehearing or reconsideration. The Board had not ruled on the matter, and therefore could not rehear or reconsider its ruling. Rather, it was a determination on the Applicant’s request for an appeal. The Board in declining to hear the appeal purported to exercise its jurisdiction “as final arbiter” under s. 7 of the Code. In my view, the Board’s decision “as final arbiter” is subject to judicial review. B.

Did the Board breach a duty of procedural fairness, or err in rendering its decision? [ 50 ] The Applicant submits that the refusal by the Board to hear an appeal is a question of jurisdiction and is subject to review on the standard of correctness. The Respondents submit that questions relating to jurisdiction arise only where the tribunal must explicitly

determine whether its statutory grant of power gives it the authority to decide a particular matter. In such a case, its decision to accept orreject jurisdiction is subject to review on a standard of correctness. [51] Both parties also made submissions regarding the reasonableness of the decision. [52] In my view, the issues in this case, regardless of how they are characterized, all lead back to the issue of procedural fairnessand therefore, that is where I will begin the analysis. [53] The standard of review analysis in Dunsmuir v.

New Brunswick, 2008 SCC 9 , 2008 S.C.C. 9, [2008] 1 S.C.R. 190does not apply to issues of procedural fairness or natural justice. The fairness of the proceedings is not measured based on whether theyare "correct" or "reasonable" in the Dunsmuir sense, but rather whether the proceedings complained about meet the level of fairnessrequired by law. In assessing fairness, both errors of fact and errors of law may contribute to an unfair hearing.

Because the court decideswhether the fairness standard has been met without affording deference, in that sense fairness is reviewed for "correctness" (Alberta(Information and Privacy Commissioner) v. Alberta (Freedom of Information and Protection of Privacy Act Adjudicator), 2011ABCA 36, Alberta (Securities Commission) v. Workum, 2010 ABCA 405, 493 A.R. 1; Nortel Networks Inc. v. Calgary (City), 2008ABCA 370, 440 A.R. 325 and cases cited therein). [54] Whether a duty of fairness is triggered, and the content of that duty, is determined having regard to various factors includingthose set out in Baker v.

Cananda (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817:

a) the nature of the decision and the decision making process;

b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

c) the importance of the decision to the individual affected;

d) the legitimate expectations of the party challenging the decision; and

e) the nature of the deference accorded to the body. [55] The Board decision relates to discipline and sanctioning of the Applicant. It is relevant to his employment. The appeal wasimportant to the Applicant. While the decision he sought to appeal did not directly affect his employment or his employability with theFaculty Association, it did result in a finding by a disciplinary committee that he had breached the Code of Conduct and Ethics.

Thesanctions imposed included a termination from any positions that he currently held, and a prohibition from serving, on any Associationboards, Executives or Committees for four years and a prohibition from attending or participating in any Association meetings for fouryears. [56] For an individual employed with the Association, lengthy prohibitions from participating in Boards, Executives or Committeesand participating in any meetings at all which may affect his employment are onerous and serious sanctions.

I find the proceedings wereakin to professional misconduct proceedings which are deemed to be quasi-judicial in nature: Dr. Q v. College of Physicians andSurgeons of British Columbia, [2003] 1 S.C.R. 226, [2003] S.C.J. 18, 2003 SCC 19, at para. 37. [57] No framework has been established outlining the Board’s (nor the PSC’

s) decision making process. The sum total of thescheme and terms pursuant to which the Board operates are contained in s. 7 of the Code: a member submits to the PSC disputes arisingfrom professional relationships with colleagues which resist resolution by personal discussion; the Board is the final arbiter of all suchdisputes. [58] The lack of a procedural framework cuts both ways with respect to legitimate expectations of the party challenging thedecision.

One might argue that because there is no framework contemplating process and procedures, the party can have no legitimateexpectations relating to procedural fairness. However, one might also argue that the complete lack of a framework means that theApplicant could expect that because of the nature of the proceedings, the process would be a quasi-judicial one with all of the attendantprocedural entitlements. I find that the Applicant was entitled, at a minimum, to expect some basic procedural fairness.

The Board cannotrely on its failure to spell out its procedures in order to deny the Applicant such basic fairness.

[ 59 ] As for deference, the Board is entitled to establish its own process and procedures relating to its function as final arbiter. However, where the Board has left a total void in terms of its process and procedures, its ad hoc process may be examined for basic elements of procedural fairness. [ 60 ] The Board had no statutory or other constraints on it in terms of how it chose to proceed in this matter. Although the PSC decision is not the subject of this review, I find the process and procedures adopted by the PSC are relevant to the degree of procedural fairness required of the Board in this case.

The Applicant was given relatively short notice by the PSC, was denied in absentia an adjournment (the minutes provide no reason for the refusal), and he had never had an opportunity to be heard or to “face his accuser” prior to being found by the PSC to be in contravention of the Code and sanctioned. Further, the PSC provided no reasons. Where the right of appeal exists, written reasons are necessary in order to ensure an effective appeal process ( Furst v. Alberta Motor Vehicle Industry Counsel , 2008 ABQB 530 at paras. 21-22 ).

All of these factors were relevant to the Board’s determination of a fair procedure for its final arbitration of this particular dispute. [ 61 ] In my view, the Board did not provide the Applicant with adequate notice of what was going to occur on September 9. The September 8, 2009 email from Ms. Baddock stated that the meeting was for the Board to review his letter requesting an appeal and “for the Board to determine the next step”. In addition, the meeting would not be a formal hearing, and he would be advised of the Board’s decision. A later email on that day stated that Mr.

Maclean had declined to attend “which is his right to do”, noting that he had already made his statement to the PSC (somewhat cryptically summarized in the June 18 minutes). [ 62 ] None of this information suggests that the Board was about to embark on a quasi-judicial process which would result in its ultimate decision as final arbiter. A reasonable person would perceive that the Board was unsure as to what steps to take at that point and wished to discuss the matter informally prior to deciding how to proceed.

There is no indication on the record that the Applicant was, in fact, ever advised as to how the Board would proceed with the appeal process. [ 63 ] The correspondence from the Applicant to the Board clearly indicated his desire to appeal the decision of the PSC. This evidences an expectation that the Board would act as “final arbiter”. This was a legitimate expectation of the Applicant.

The Code of Conduct and Ethics of the Lakeland College Faculty Association provides in clause 7 that the Board “shall be the final arbiter of all such disputes.” The term “arbiter” is defined in The New Collins Dictionary and Thesaurus as “a person empowered to judge in a dispute; referee.” [ 64 ] The Board rendered the following decision, recorded as a motion in the Minutes of the meeting: Motion: N. King/S.Pratt move that the Board of Directors denies Dr. Raymond Anana’s request for an appeal of the rulings of the Professional Standards Committee as contained in their June 22, 2009 letter.

Carried. [ 65 ] There is nothing in the Minutes of the Board meeting of September 8 which explains the decision making process generally or how the Board arrived at its decision in this case. The Minutes simply provide that the Applicant requested that “he be allowed to make a presentation regarding his letter of request for an appeal.” He did so and then left the meeting after answering questions directed from Board members.

There is nothing else which might indicate how the decision of the Board was reached other than the motions which were passed: first, denying the Applicant’s request for an appeal; and secondly, obliging the chair of the PSC to explain the sanctions to him. [ 66 ] In Lor-al Springs Ltd. v. Ponoka (County) , 2000 ABCA 299 at paras. 12-15 the Alberta Court of Appeal set out guidelines for determining the adequacy of a tribunal’s reasons. The reasons must show why or how the board reached its conclusion. (See also Miraculous Growth Investments Inc. v.

Safety Codes Counsel , 2010 ABQB 620 at para. 31 .) Where a decision of an administrative tribunal has important significance for the individual, written reasons must be provided ( Baker v. Canada (Minister of Citizenship and Immigration) at para. 43 ).

[ 67 ] In Dunsmuir , the Supreme Court emphasized the importance of justification, transparency and intelligibility within the decision making process. The Board’s failure to provide reasons prevents the Applicant from understanding the underlying justification for its decision. It also further obscures the process engaged in by the Board. The Supreme Court in Baker at para. 38 emphasized that reasons are particularly useful in ensuring fair and transparent decision-making.

It is impossible to discern from the Minutes of the Board meeting of September 8, 2009 how the Board reached its decision and particularly the criteria it used and the reasons for which it decided not to entertain the appeal. [ 68 ] Although the Board might have been of the view that the Applicant’s breach of the Code was self-evident, the Board breached its duty of procedural fairness in providing virtually no elements of procedural fairness in its process, other than allowing the Applicant to address the Board in a vague, purportedly informal meeting called for the purpose of determining “the next step”.

The Applicant was reasonably entitled to expect that the Board would finally arbitrate his matter in a fair and transparent process. It failed to do so. [ 69 ] Given my finding that the Board breached its duty of procedural fairness, it is unnecessary to address the other issues raised by the parties. VI. Conclusion [ 70 ] The Applicant failed to file his Originating Notice seeking Judicial Review of the decision of the Professional Standards Committee of June 18, 2009 within the time limit prescribed by the Rules of Court .

His application is dismissed with respect to that decision. [ 71 ] The Applicant did file his Originating Notice on a timely basis with respect to the Application for Judicial Review of the Board’s decision of September 8, 2009. [ 72 ] The Board breached its duty of procedural fairness in the process relating to its September 8, 2009 decision. [ 73 ] I direct that the matter be remitted back to the Board of Directors for it to properly consider, as final arbiter, an appeal by the Applicant from the decision of the Professional Standards Committee of June 18, 2009. Heard on the 27 th day of April 2011.

Dated at the City of Edmonton, Alberta this 10 th day of May 2011. Eric F. Macklin J.C.Q.B.A. Appearances:

Appearances: Alexandra Bochinski Davis LLP for the Applicant (Plaintiff) Simon Renouf, Q.C. Simon Renouf Professional Corporation for the Respondents (Defendants)