Nov 12, 2020

Is the Standard of Review of Discipline Decisions Becoming Clearer?

Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (CanLII)

Ever since the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), http://canlii.ca/t/j46kb there has been much debate as to whether courts will scrutinize discipline decisions more closely, particularly where there is a statutory right of appeal. Clearly the answer is “yes” where the discipline tribunal has to address a general question of law (e.g., a constitutional question or a general principle of evidence). However, in the Divisional Court of Ontario decision of Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (CanLII), http://canlii.ca/t/jb3pv, the answer seems to be “no” for most other issues.

The facts of the case are interesting. The practitioner attended at the home of a client after performing veterinary surgery. The meeting escalated into a verbal argument and a physical interaction resulting in injuries to both participants. In upholding the finding of professional misconduct, the Court noted the following:

1. Factual findings are reviewed on the deferential standard of whether there was a palpable and overriding error.

2. A similar standard applied to a finding that the conduct of a practitioner constituted professional misconduct. In the absence of a statutory interpretation issue, a finding that the “conduct constituted a significant departure from his professional obligation amounting to professional misconduct” would be afforded deference.

3. A similar standard applied to the review of the sanction imposed by the discipline tribunal. So long as no improper considerations were taken into account, significant deference was owed to the core competence of the tribunal. The decision should only be set aside where the decision was “clearly unreasonable” or “demonstrably unfit”.

4. On the matter of costs, the Court said: “As costs are a discretionary remedy, an appellate court should only set aside a costs award if the trial judge has made an error in principle or if the award is plainly wrong.”

The Court in this case treated the standard of review issue as becoming routine in this context.