Oct 27, 2020

Sometimes when an appeal from a discipline decision is successful, the court returns the case to be reconsidered by a differently constituted panel. However, when a court is silent on the matter, can the same panel that made the earlier, incorrect decision, reconsider it? Generally the answer is yes because that panel has heard the evidence and argument, has detailed familiarity with the case, and is in the best position to consider the matter again. In Zuk v Alberta Dental Association and College, 2020 ABCA 162 (http://canlii.ca/t/j6tjc) the Court also found that, absent special circumstances, having the same panel members reconsider the matter does not create an appearance of bias.

In Zuk, there were 21 findings of misconduct. The appellate Court set aside two of the findings and stated that one finding had been overemphasized. The upheld findings were deemed by the Court to be serious and included grave attacks against the integrity of the regulator. The tribunal reconsidered the sanction and costs and imposed a significantly reduced period of suspension and costs. The practitioner appealed again.

The Court held that the standard of review remained deferential:

Pre-Vavilov, it was clear that deference was owed to professional disciplinary bodies on the fitness of sanctions and the fact findings underpinning them: Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 42 [Ryan]; Groia v Law Society of Upper Canada, 2018 SCC 27 at paras 43, 57. As Vavilov does not directly address the question of standard of review for sanctions imposed by professional disciplinary bodies, this Court was asked to provide guidance on this point. In our view, the appropriate standard of review remains reasonableness. Vavilov provides a “revised framework that will continue to be guided by the principles underlying judicial review… articulated in Dunsmuir v New Brunswick, 2008 SCC 9” [Dunsmuir]: para 2. The longstanding principles articulated in Dunsmuir and Housen have not been displaced: Vavilov at para 37. As noted in para 13 above, the standards of review on statutory appeals are the same as those applied in other appeals. The focus is on the type of question in dispute. The question of what sanction Dr Zuk should face as a result of his misconduct is a question of mixed fact and law: Ryan at para 41. This calls for a deferential standard where the decision results from consideration of the evidence as a whole, but a correctness standard ought to be applied when the error arises from the statement of the legal test, or where there is an extricable question of law: Housen at paras 33, 36; Constable A v Edmonton (Police Service), 2017 ABCA 38 at para 41.

Similar considerations applied to the costs order.

In terms of bias, the Court held that the legislative provision precluding individuals involved in the investigation and referral of matters to discipline had no application to the reconsideration of the matter returned by the Court. After reviewing the reasons of the panel reconsidering the matter the Court also found no appearance of bias:

We are not persuaded the Appeal Panel was permanently “invested” in its earlier reasons, to the degree that it was incapable of fairly reconsidering the matters directed by this Court. “Where a matter is remitted back, the law presumes that a tribunal will give full weight to the decision of the reviewing court”: Walton at para 9. As noted above, there is nothing on the record to rebut this presumption; quite the opposite. Further, whether the issue “on which a reconsideration has been directed would raise considerations of impartiality in the mind of a reasonable person is a matter of degree”: Walton at para 9. In light of the cogent, even-handed, transparent and considered approach of the Appeal Panel’s reconsiderations reasons, this case does not raise any considerations of impartiality.

In sum, there is no reason to believe that the Appeal Panel did not reconsider sanction and costs having full regard to the decision of this Court. Moreover, the Appeal Panel had the advantage of a detailed knowledge of the evidence behind the affirmed charges, and considerations of efficiency supported its continuing involvement.

The appeal failed.