September 7, 2020

Vavilov and our 2019 Professional Regulation Round-up

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Here is a quick recap of significant developments in professional regulation in 2019, starting with the “big bang” that occurred at the end of the year with Supreme Court of Canada’s decision in Vavilov.

1.0 A new framework for “standard of review” under Vavilov

In December 2019, the Supreme Court of Canada revised the review framework that courts must apply when carrying out judicial reviews or statutory appeals of tribunal decisions, respecting how they must determine the “standard of review”, and what they may look to when deciding if a tribunal has acted reasonably: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”).

Vavilov involved Canada’s Registrar of Citizenship revoking the Canadian citizenship of Mr. Vavilov, who was born in Canada, but whose parents who had been Russian spies. The Registrar interpreted and relied on a provision of Canada’s Citizenship Act that denies citizenship to the children of representatives or employees of a foreign government. The SCC ultimately decided, however, that the provision, which applies to representatives enjoying diplomatic privileges and immunities and to their employees, did not apply to Mr. Vavilov’s parents, who — as secret intelligence agents — did not enjoy diplomatic immunities.

The Vavilov decision has two main branches:

(1) why and when courts owe deference to tribunals during judicial review and statutory appeals; and

(2) what “reasonableness” means when a court reviews a tribunal decision on a standard of reasonableness.

1.1 The revised framework for judicial reviews

The branch of Vavilov determined how courts must decide on what standard of review they must apply to specific kinds of decisions made by tribunals. Most notably, where the legislature has not stipulated a particular standard of review, courts will apply different standards to “reviews” on the one hand, and “appeals” on the other hand. This distinction is significant to colleges under B.C.’s Health Professions Act, since s. 40 provides for an “appeal” from decisions of discipline committees to the court. This “appeal” provision also applies to decisions of inquiry committees that take extraordinary action (pursuant to HPA s. 35(1) and (5)).

Under the Vavilov framework, a court must start with the presumption that a standard of reasonableness applies, [16] other than when a court is reviewing an alleged breach of natural justice or procedural fairness. [23] This presumption is grounded in legislative intent, which is in turn based on the legislature’s “institutional design choice” of delegating authority through statute to a tribunal. [36] The presumption is rebutted, however, in specific circumstances:

1. Where the legislature explicitly prescribes a different standard of review. [17 and 35]

2. Certain categories of questions, where the “rule of law” requires that a tribunal be correct:

a. Specific kinds of constitutional questions, e.g., regarding division of powers, the relationship between the legislature and other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and other constitutional matters requiring and final and determinate answer from the courts. [55 and 56] (This does not, however, necessarily apply to whether action by a tribunal violates a respondent’s rights under the Charter of Rights and Freedoms, in which case the deferential approach developed in the Dore case (2012 SCC 12) still applies. [57])

b. General questions of law of central importance to the legal system as a whole. [58]

c. Questions regarding the jurisdictional boundaries between two or more administrative bodies. [64]

3. Where the legislature signals an “appellate function” through the presence of a statutory appeal mechanism, [36] in which case courts must apply the appellate standards that appellate courts apply to lower courts.

a. This means that courts on “appeals” must apply a “correctness” standard questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority. [37]

b. This means that courts are not, during “appeals”, to defer to how discipline committees may interpret theHealth Professions Act, or college bylaws.

c. But the impact of the “appellate standards” on how discipline committees interpret written standards or codes of conduct, or the meaning of “professional misconduct” under the HPA, may be more complicated.

Since the revised framework in Vavilov supersedes previous approaches, previous cases on standard of review may have limited limited value. [143]

Vavilov is a decision that applies to how courts must decide on their standard of review. The extent to which Vavilov applies to “internal” tribunals, like BC’s Health Professions Review Board, remains to be seen, and is a matter currently before the B.C. Court of Appeal.

1.2 How tribunals must be “reasonable” under Vavilov

The second branch of Vavilov is of special interest to regulatory committees. Vavilov clarifies what “reasonableness” means, by outlining the legal constraints that apply to administrative tribunals.

What “reasonableness” means: Vavilov says that courts, when deciding if tribunal decisions are reasonable, may look to the following factors:

1. Rationality: tribunals’ reasons should be “based on reasoning that is both rational and logical”, [102] meaning they should show a line of analysis that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived – courts are not assisted by reasons that simply summarize arguments and “state a peremptory conclusion”; [102]

2. The governing statutory scheme: tribunals are constrained by the governing statutory scheme, [108] including the scope of any authority conferred; [109]

3. Principles of statutory interpretation: tribunals must interpret laws using the “modern principle” of statutory interpretation (meaning they must read the words of a statute ““in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”); [117-118]

4. Statutory and common law: tribunals are constrained by private law governing the rights of parties, and any common law standards specified their governing statutes; [111]

5. Binding precedents: where a court has interpreted a provision, a tribunal should “explain or justify a departure from a binding precedent”; [112]

6. Evidence before the decision maker: tribunals should consider all relevant evidence; [126]

7. Submissions of the parties: tribunals must “meaningfully account for the central issues and concerns raised by the parties”, [127] meaning they must “grapple with key issues or central arguments”; [128]

8. Past practices and decisions: tribunals “must be concerned with the general consistency of administrative decisions”, [129] and should justify departures from long standing practices or established internal authority; [131] and

9. Impacts on affected individuals: especially where the impact of decisions on individual rights and interests is severe, tribunals’ reasons should “demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law”. [133-135]

The relevance of reasons: Vavilov emphasizes the importance of written reasons in justifying decisions as reasonable, at least where a statute requires that a decision-maker provide reasons. Not all decision-makers, however, have a statutory obligation to provide reasons, and some may have obligations only for specific kinds of decisions. For example, an inquiry committee under BC’s Health Professions Act has an express duty to provide “reasons” when taking extraordinary action (under s. 35(2)(b), but for other kinds of dispositions, the HPA refers to something less, e.g., “a written summary of the disposition” (s. 34)).

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”).

2.0 Government moves towards centralized oversight of regulators

2019 involved many proposed structural changes to professional regulatory authorities in British Columbia, including changes to government oversight of regulatory authorities (although such changes have presumably been delayed somewhat by the COVID-19 pandemic):

  • On Nov. 1, 2019, BC announced the BC Financial Services Authority, to replace FICOM, to regulate BC’s financial sector, and to take in the Real Estate Council of BC (here). UPDATE: The amalgamation is expected to be fully implemented in 2021.
  • In November 2019, BC released a consultation paper for updating the Health Professions Act, through steps that could include amalgamating many HPA colleges into a single College of Health and Care Professions, and a new oversight body for colleges (here). UPDATE: On August 27, 2020, the Steering Committee on Modernization of Health Professional Regulation released a new set of recommendations (here). Under these recommendations, existing college are to be amalgamated into a total of six colleges, i.e.,  medicine, nursing and midwifery (this amalgamation occurred on September 1, 2020), pharmacy, oral-health professions (with dental surgeons, denturists, dental hygienists and dental technicians), and two colleges covering the balance of the health professions:
    • the “Regulatory College of Allied Health and Care Professionals” (dietitians, occupational therapists, opticians, optometrists, physical therapists, psychologists, and speech and hearing professionals, as well as “diagnostic and therapeutic professions in the future); and
    • the “Regulatory College of Complementary and Alternative Health and Care Professionals” (chiropractors, massage therapists, naturopathic physicians, and traditional Chinese medicine practitioners and acupuncturists).
  • Steps to transition five natural resource professions, including APEGBC, to the Professional Governance Act continued in 2019, with the new regime to include regulatory authority supervision by a superintendent (we summarized the Acthere, in our 2018 regulatory round-up; also see the implementation page on the website of the Office of the Superintendent of Professional Governance, here). UPDATE: On July 14, government announced that the profession of architecture would also be moving under the Professional Governance Act, beginning with a transfer of responsibility from the Ministry of Advanced Education, Skills and Training to the Ministry of the Attorney General (to occur in the fall of 2020). The PGA is expected to take the place of the Engineers and Geoscientists Act in November 2020.

3.0 A need to revise regulatory laws to recognize the rights and needs of Indigenous peoples

In November 2019, the BC legislature passed the Declaration on the Rights of Indigenous Peoples Act (“DRIPA”) (here). DRIPA requires that the BC government “take all measures necessary to ensure the laws of British Columbia are consistent with” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) (which is a schedule of DRIPA; also see the United Nations website page on UNDRIP here).

We wrote about the relevance of UNDRIP to some regulatory authorities, as part of Lisa Fong’s 2019 CNAR presentation on “Current Trends” here. DRIPA heralds a coming need for regulatory bodies to address how professional regulation intersects with the rights of Indigenous peoples, including their right to self-government; their right to practice their cultures and customs; and their right to distinct political, legal, economic, social and cultural institutions.

One step towards regulatory bodies addressing the rights of Indigenous peoples is illustrated by the Law Society of British Columbia’s announcement, on December 6, 2019 (here), that lawyer competence includes knowledge of the history of Aboriginal-Crown relations, the history and legacy of residential schools and specific legislation regarding Indigenous peoples of Canada. Accordingly, beginning in 2021, all practising lawyers in BC will be required to take an Indigenous intercultural competency training course.

4.0 Medical Assistance in Dying (MAiD)

The law of Medical Assistance in Dying (or “MAiD”), which became legal in 2016, evolved in 2019, due to a decision by Quebec’s superior court on September 11, 2019, which struck down portions of the federal and Quebec legislation on MAiD in Truchon and Gladu v. Canada, 2019 QCCS 3792 in a 177-page (French) decision. The issue related to a condition for eligibility that natural death be reasonably foreseeable. Two plaintiffs suffered from serious degenerative illnesses, but they did not qualify for MAiD under legislation. The Quebec court agreed that the failure of the legislation to allow MAiD to persons lacking any immediate or specifically predictable end in sight infringed some of their Charter rights.

Lisa Fong and Lauren Riva discussed the Truchon and Gladu case, and other developments relating to MAiD, as part of their CBA Health Law presentation here.

5.0 Reserved titles and unauthorized practice

In 2019, the Supreme Court of British Columbia decided that s. 12.1(1) of B.C.’s Health Professions Act, which prohibited non-registrants from using titles (reserved for exclusive use by registrants) to describe their work, or as part of another title describing their work, violated non-registrant’s freedom of expression (under the Charter) and was not justifiable: College of Midwives of British Columbia v. MaryMoon, 2019 BCSC 1670. The College of Midwives and the Attorney General of British Columbia appealed that decision, however, with interventions by a number of other colleges, including the College of Speech and Hearing Health Professionals. UPDATE: The Court of Appeal has since overturned the lower-court decision (2020 BCCA 224), with that court ordering an injunction against the use of the title, “death midwife”. We look at the Court of Appeal’s decision elsewhere on a blog!

2019 also saw attempts by colleges to obtain relief against non-professionals carrying out restricted activities. However, proof of unauthorized practice can sometimes be difficult to prove, as illustrated in the Chik case (College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v. Chik, 2019 BCSC 1135), investigators observed a respondent attending at various private residences for 45-minutes at a time, carrying a black Nike bag. Several months later, pursuant to a search and seizure order, the College found a black Nike bag with 7,000 acupuncture needles and 2,000 single-use alcohol swabs. But although the College of Traditional Chinese Medicine Practitioners and Acupuncturists of BC (the “CTCMA”) asserted that the respondent had been practicing TCM and/or acupuncture, the court found that it could not that the respondent had violated an order against practicing TCM beyond a reasonable doubt, given the five-month gap between his attending at private residences, and the results of the search. For more on that case, go here.

Lisa C. Fong and Michael Ng