September 23, 2010

When discipline panels must be correct, and not merely reasonable

Administrative Law
Professional Regulation

While a tribunal’s substantive decision-making under its home statute may survive a judicial review merely by being reasonable, a tribunal must still be correct about questions of general law, and must still reach decisions on a foundation of procedural fairness; legislatures do not authorize tribunals to decide matters through unjust processes (Dunsmuir at 128-129).

Accordingly, while panels may depart from strict rules of evidence, evidential issues may be subject to review on a standard of correctness. This was the conclusion of the Nova Scotia Court of Appeal in Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 (March 19, 2009), where the court examined the standard of review applying to six types of issues:

  • Issue #1: Admissibility of evidence and inclusion of charges based on such evidence
  • Issue #2: Misapprehension of relevant evidence relating to credibility
  • Issue #3: Sufficiency of evidence to establish professional incompetence
  • Issue #4: Allowing charges based on a compulsory assessment
  • Issue #5: Costs
  • Issue #6: Penalty

The court decided to review Issues 2, 3, 5 and 6 on a “deferential standard of reasonableness,” but applied correctness to Issues 1 and 4: “While I acknowledge that in the administrative law context a tribunal may develop its own procedures as to admissibility without the recognized strictures found in the judicial rules of evidence, whereas issues # 1 and # 4 principally involve specific questions of law and concurrent issues involving breaches of natural justice or procedural fairness, I will apply a standard of correctness. The law is clear that issues of procedural fairness do not involve any deferential standard of review.” [78] The court found, however, that administrative tribunals “may receive evidence of doubtful relevance and admissibility.” [82]. Indeed, tribunals may decide admissibility and weight in deliberations after the hearing is complete. [82] Accordingly, Osif may illustrate that, practically speaking, a tribunal may face more scrutiny about evidence it excludes than evidence it admits.

Osif v. College of Physicians and Surgeons of Nova Scotia, 2009 NSCA 28 (March 19, 2009)