Oct 27, 2020

Ever since the Supreme Court of Canada in Vavilov changed the way that courts review regulatory decisions (at least where there is a statutory right of appeal), regulators and courts have been determining how the new test applies to different types of decisions. In Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039, http://canlii.ca/t/j883c, the Divisional Court of Ontario put some effort into applying Vavilov to appeals of disciplinary penalties. Dr. Mitelman was found guilty of professional misconduct for a number of standard of practice and ethical issues. It was his second finding. The appeal was limited to the penalty order of a twelve month suspension of his licence and various terms, conditions and limitations for periods of up to five years.

The Court stated that the standard of review involved considerable deference:

It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.

The Court went on to say that when looking at the “reasonableness” of a penalty decision, the Court is really referring to the proportionality of the decision compared to other similar cases. Thus the word “reasonableness” is not describing the standard of review generally.

The appeal raised concerns about the adequacy of the reasons on penalty. The Court noted that the reasons on finding were detailed and provided an important context to the penalty decision, including concerns about impairment of public safety. Though brief, the reasons on penalty identified the factors taken into account. The Court said:

The basis for the Committee’s conclusions on penalty is readily apparent to anyone with even a passing familiarity with the background to this case. I am not prepared to conclude that the reasons on penalty are so deficient as to amount to an error of law.

Because context is everything, the decision on penalty was upheld.