CLEAR
News - Summer 2003
The
Importance of Reasons for Decision
Reprinted with Richard Steinecke's permission from Grey Areas,
Steinecke Martin Maciura, April 2003. Subscribe
to Grey Areas at no charge by sending an email to rsteinecke@sympatio.ca
It is not very often that
professional regulators have decisions from the Supreme Court of
Canada to guide them. Earlier this month, the Supreme Court issued two
companion decisions dealing with the amount of deference that
appellate courts ought to give to decisions of discipline committees.
While regulators will take comfort from the Supreme Court’s general
approach of deference to disciplinary decisions, the most significant
point is the importance of the reasons for decision of tribunals.
In Dr. Q v. College of Physicians and Surgeons of British Columbia,
2003 SCC 19, the Discipline Committee had found that Dr. Q had a
sexual relationship with his patient. It believed the patient’s
evidence and disbelieved Dr. Q’s denial of the allegations. In
addition to commenting on the relative demeanour and responsiveness of
the two primary witnesses, the committee found that the detailed
observations by the patient of Dr. Q’s physical characteristics and
his new office supported her evidence. The committee also interpreted
a letter by Dr. Q to the patient as consistent with more than a
platonic relationship. Some other witnesses corroborated additional
details of the patient’s evidence.
Deference on Appeal
The Discipline Committee applied the standard of proof of “clear
and cogent evidence”. All, including the Supreme Court, supported
that standard. The Supreme Court said:
The standard of clear and cogent evidence does not permit the
reviewing judge to enter into a re-evaluation of the evidence. Indeed,
… findings of fact or credibility are generally due considerable
deference …. The requirement for "clear and cogent
evidence" is a matter relating to the standard of proof employed
at the Committee level, ensuring that the Committee is alive to the
gravity of the consequences of their decision. … It does not
instruct a reviewing court on how to scrutinize the decision of the
administrative decision-maker.
The Supreme Court then analyzed how much deference ought to be shown
to the findings of the Discipline Committee even though a very broad
right of appeal to the courts existed. The court held that there were
only three categories of review:
- Correctness (no
deference);
- Reasonableness
(deference); and
- Patent
unreasonableness (significant deference).
In choosing which standard
to apply, courts are not to look at simplistic legal categories or
minor differences in statutory language. Rather the court should
perform a functional analysis as to whether the administrative
tribunal or the court is best able to make that particular type of
decision. The functional analysis considered four factors:
- Was there a broad
right of appeal or did the statute restrict judicial scrutiny
(i.e., called a primitive clause)? A broad right of appeal tends
to favor less court deference.
- Who was more expert
on the issue under appeal, the court or the tribunal? Expertise
can come from the qualifications of the tribunal or their
experience in the area from dealing with many cases.
- Does the purpose of
the legislation indicate how much deference should be shown? The
policy aspects of professional regulation suggests deference.
However, this is balanced somewhat by the court’s expertise in
formal adjudication of disputes.
- What is the nature
of the question in issue? A legal issue suggests a greater
judicial role. A factual or policy issue suggest a greater
tribunal role. Here, the finding of facts after hearing witnesses
testify greatly favors deference to the Discipline Committee.
On balance, the court
found that for this issue, there was a balance of deference and
non-deference considerations such that the “reasonableness”
standard of review applied. On the reasonableness standard of review,
the appellate court’s view of the evidence is beside the point.
Rather, the court only asks itself if there is some basis in the
evidence to support the conclusion of the tribunal.
Importance of Reasons
The companion case of Law Society of New Brunswick v. Ryan,
2003 SCC 20, was released on the same day as the case of Dr. Q.
Mr. Ryan misled his clients. Retained in a wrongful dismissal
action, he did nothing for five and a half years. To “disguise his
inattention” he “spun an elaborate web of deceit”, leading his
clients to believe that there were numerous delays outside of his
control. He also prepared forged court documents leading them to
believe the matter was before the courts and, in fact, decided in
their favor. Everyone agreed that this behavior constituted
professional misconduct. On the issue of what order to impose, the
Discipline Committee disbarred Mr. Ryan. The Court of Appeal felt
that, in light of some medical evidence about Mr. Ryan, a suspension
was more appropriate.
The Supreme Court of Canada considered the four factors listed above
and again decided that the “reasonableness” standard applied to a
review of the penalty decision of the Discipline Committee. The
Supreme Court of Canada then emphasized the importance of the reasons
for decision of the Discipline Committee in deciding the appeal. It
said:
How will a reviewing court know whether a decision is reasonable given
that it may not first inquire into its correctness? The answer
is that a reviewing court must look to the reasons given by the
tribunal.
A decision will be unreasonable only if there is no line of analysis
within the given reasons that could reasonably lead the tribunal from
the evidence before it to the conclusion at which it arrived. If
any of the reasons that are sufficient to support the conclusion are
tenable in the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable and a
reviewing court must not interfere …. This means that a
decision may satisfy the reasonableness standard if it is supported by
a tenable explanation even if this explanation is not one that the
reviewing court finds compelling ….
This does not mean that every element of the reasoning given must
independently pass a test for reasonableness. The question is
rather whether the reasons, taken as a whole, are tenable as support
for the decision. At all times, a court applying a standard of
reasonableness must assess the basic adequacy of a reasoned decision
remembering that the issue under review does not compel one specific
result. Moreover, a reviewing court should not seize on one or
more mistakes or elements of the decision which do not affect the
decision as a whole.
Thus, it is crucially important that the reasons of administrative
tribunals explain why it is making the particular decision. Simply
summarizing the facts and stating the conclusion is not sufficient.
The tribunal must explain why it found certain evidence compelling, or
not compelling, or why a particular penalty was an appropriate one for
that particular case. If this is done, the risk of an appellate court
changing the decision is greatly reduced.
One last word. Not necessarily all decisions will be reviewed on the
“reasonableness” standard. It may still depend somewhat on the
type of issue. For example, a decision by a tribunal that a provision
of its enabling statute is constitutional may still be reviewed on the
“correctness” standard, depending on the circumstances.
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