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:
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: 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 courts 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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