Oct 5, 2020

A Nice Summary of the Standard of Review in Discipline Sanction Cases

Gutman v. College of Physicians and Surgeons of Ontario, 2018 ONSC 6936 (CanLII)

Just as the Supreme Court of Canada is on the eve of considering the standard of review of administrative decisions generally, an Ontario Court has provided a nice summary of the current state of the law in respect of judicial review of discipline orders. In Gutman v College of Physicians and Surgeons of Ontario, 2018 ONSC 6936, http://canlii.ca/t/hw5wq a physician, found to have breached a prior discipline order, challenged the sanction imposed. In upholding the order, the Court summarized the standard of review as follows:

1. A decision is reasonable if it falls within a range of possible acceptable outcomes (see: Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, at para. 47).

2. A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result (see: Law Society of New Brunswick v. Ryan, 2003 SCC 20 (CanLII), [2003] 1 S.C.R. 247, at paras. 48-56).

3. Reasons must be taken as a whole. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (see: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), [2011] 3 S.C.R. 708, at para. 16).

4. If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law. The Court should not substitute its own reasons, but assess reasonableness on the record (see: Newfoundland, at para. 15).

5. Deference is owed, especially with respect to sanctions for breaches of professional standards, in that they the tribunal had greater experience than the Court (see: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 (CanLII), 424 D.L.R. (4th) 613, at para. 31; Mast v. College of Nurses of Ontario, 2015 ONSC 5854 (CanLII), at p. 5; and Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal(2005), 2005 CanLII 24217 (ON CA), 76 O.R. (3d) 321 (C.A.), at para 108).

Pithy yet helpful.