March 20, 2009

Nova Scotia College of Physicians and Surgeons prompts “Nice” demonstration of Dunsmuir standards

Filed under: 1 — ruleswatch @ 4:14 pm

The just released Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 (Saunders J.A. for the Nova Scotia Court of Appeal), rejecting an appeal from a disciplinary decision of a hearing panel of the Nova Scotia College of Physicians and Surgeons, has given a handy and concise summary and application of the new, Dunsmuir standard of review (as some would have it “SOR”) analysis in a statutory appeal (under the new Nova Scotia Civil Procedure Rules  –and elsewhere– explicitly under the category of “judicial review”) of an administrative decision.* [Dunsmuir 2008 SCC 9; Pezim [1994] 2 S.C.R. 557]

The passage is particularly helpful because it presents the Dunsmuir process in a brief and organized way and, then, fits it into it a “reasonableness” assessment that combines the older Pezzim statement of the content of the reasonableness with the transparency and the line of reasoning statement of the test contributed by the Dunsmuir majority.

Justice Saunders writes:

[51] …there are now only two standards of review applicable to the decisions of administrative tribunals: correctness and reasonableness. Abandoning its customary model used to gauge the bandwidth of
appropriate judicial deference as being “too difficult to apply to justify its
retention,” the Court has adopted a framework referred to as the “standard of
review analysis.”

[52] The Supreme Court explained the steps to be followed in conducting such
an analysis:

[62] In summary, the process of judicial review involves two steps. First,
courts ascertain whether the jurisprudence has already determined in a
satisfactory manner the degree of deference to be accorded with regard to a
particular category of question. Second, where the first inquiry proves unfruitful,
courts must proceed to an analysis of the factors making it possible to identify
the proper standard of review.
. . .

[64] The analysis must be contextual. As mentioned above, it is dependent on
the application of a number of relevant factors, including: (1) the presence or
absence of a privative clause; (2) the purpose of the tribunal as determined by
interpretation of enabling legislation; (3) the nature of the question at issue, and;
(4) the expertise of the tribunal. In many cases, it will not be necessary to
consider all of the factors, as some of them may be determinative in the
application of the reasonableness standard in a specific case.

[53] The Court provided a working definition for “reasonableness” at ¶ 47:

47 . . . Tribunals have a margin of appreciation within the range of acceptable
and rational solutions. A court conducting a review for reasonableness inquires
into the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned with
whether the decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.

[54] The Court went on to define “correctness” as:

50 . . . When applying the correctness standard, a reviewing court will not show
deference to the decision maker’s reasoning process; it will rather undertake its
own analysis of the question. The analysis will bring the court to decide whether
it agrees with the determination of the decision maker; if not, the court will
substitute its own view and provide the correct answer. From the outset, the court
must ask whether the tribunal’s decision was correct.


[55] Dunsmuir explains that the reasonableness of a tribunal’s decision must be
tested from two perspectives: the first deals with transparency in the sense that the
tribunal’s reasoning path must be apparent; the second deals with outcomes, in
other words whether the conclusion fits within a tolerance or “margin of
appreciation” accorded the tribunal. In this case there is no challenge to the first
aspect, that being the transparency or intelligibility of the hearing committee’s
decision-making process. We are able to restrict our inquiry to whether the
committee’s findings and conclusions fall within a range of possible, acceptable
outcomes which are factually and legally defensible.

*The decision deserves to be well read on a series of other grounds as well. It gives a skillful analysis of what it ultimately dissects as the substantive issues on the appeal and it gives a “nice’ demonstration of h0w to integrate past authority into the standard of review analysis executing the SCC’s Dunsmuir direction. As first-rate by-products, the decision also gives a glimpse of both a nicely drafted College hearing notice and a solid and responsible penalty decision of the College’s hearing panel.


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