Oct 27, 2020

Under the new standard of review of tribunal decisions, findings of fact are reviewed on the basis of whether there was a palpable and overriding error (unless there is a question of mixed fact and law where there is an extractible legal error). In Miller v College of Optometrists of Ontario, 2020 ONSC 2573, http://canlii.ca/t/j6sbk the Court was reluctant to compare the palpable and overriding error test with the reasonableness review test. However, it did closely review the credibility findings where a finding of historical sexual abuse was made.

While showing deference to the tribunal, the Court concluded that the practitioner’s evidence was scrutinized more closely than that of the patient for a number of reasons including:

  • The tribunal used the assertion of a weak submission by the self-represented practitioner that the touching could not have taken place as undermining the practitioner’s credibility. Such an inference would not have been made if the argument was made by the practitioner’s legal counsel.
  • The tribunal used the demeanour of the practitioner when the patient testified (e.g., the practitioner did not look at her) as supporting an adverse finding of credibility. Demeanour generally applies to how a witness acts when testifying, not to how a party behaves when others testify, and, in any event, such a conclusion based on a lack of eye contact was particularly fragile.
  • The tribunal appeared to treat the lack of responsiveness to questions by the practitioner more negatively than a similar lack of responsiveness by the patient. In particular, the hesitancy of the practitioner to acknowledge that he had been in practice for almost fifty years was given undue weight. So was the request by the practitioner to cross-examine counsel on the meaning of the word “close”.
  • The tribunal appeared to be overly suspicious about the inability of the practitioner to produce a portion of the chart that was unlikely to contain relevant information and was not required to be retained by the practice’s retention policy.
  • Mischaracterizing the practitioner’s position as that the patient was fabricating the allegations when it was more accurate to say that the practitioner’s position was that the patient’s evidence was mistaken.

The Court concluded as follows:

The Merits Decision and the record disclose a sufficient unevenness of approach to the evidence adduced by the two sides for me to conclude that the appellant’s defence was subjected to a higher level of scrutiny than the case against him. That is an error of law. It, combined with the other errors I have identified, resulted in an unfair proceeding.

Regulators are closely watching to see if the new standard of review of credibility findings is markedly different than the deference shown in pre-Vavilov decisions.