Originally published in The Lawyers Weekly
Health law litigators are well-versed in the language of "standard of care." However, in 2008, the Supreme Court of Canada released two decisions on the "other" standards — standard of review and standard of proof — that are relevant to those who practise before administrative tribunals.
In Dunsmuir v. New Brunswick,  S.C.J. No. 9, the Supreme Court attempted to simplify the law on standard of review by creating a single standard of "reasonableness" for reviewing issues of fact, discretion and policy, thereby eliminating the confusing "patent unreasonableness" standard.
Deference, which imports the notion of respect both for the legislative decision to grant powers to administrative tribunals and for the decisions of those tribunals, is the underlying principle of the reasonableness standard. The court, however, will continue to review jurisdictional, constitutional and most legal issues on a correctness standard.
While the reasonableness standard is not new to the health law field, the practical implication of the Dunsmuir articulation of the standard has yet to be fully addressed. Fortunately, some guidance has been provided in the recent Ontario Divisional Court decision in Yar v. College of Physicians and Surgeons of Ontario,  O.J. No. 1017.
In Yar, the court relied on previous decisions establishing that, on judicial review, the reasons of the tribunal as a whole must be evaluated. Like the palpable and overriding error test for reviewing findings of fact made by a trial judge, individual errors or mistakes by a tribunal will not necessarily result in the decision being found unreasonable unless they affect the overall conclusion.
Following Dunsmuir, the court in Yar noted that there is often a range of acceptable and rational outcomes from a tribunal that can be defended on the evidence and the law. While the court in Dunsmuir noted that reasonableness is "concerned mostly with the existence of justification, transparency and intelligibility with the decision-making process," it also stated that, on judicial review, a court should consider whether the tribunal's decision falls within that range of possible outcomes. If it does, it will likely be found to be a reasonable decision.
One can compare Yar, in which the tribunal's decision was upheld, to Dr. V.L. v. College of Chiropractors of Ontario, 2008 CanLii 56709, in which the Divisional Court quashed the college's decision as unreasonable. There, the issue was whether a chiropractor, who had an existing intimate relationship with the complainant before she became a patient, was guilty of sexual abuse. The court reviewed whether the treatment was "incidental" to the relationship and found that the college's interpretation of "incidental," as referable to frequency of treatment, was unreasonable.
Applying the language from Dunsmuir quoted in Yar, this decision arguably either means that the college's interpretation was not within the range of defensible outcomes or that this question lent itself only to one specific result. Leave to appeal has been granted.
In addition to the effect of Dunsmuir on future judicial review applications, the recent statement on standard of proof by the Supreme Court in F.H. v McDougall,  S.C.J. No. 54 will affect future tribunal decisions at first instance. Since the Divisional Court's decision in Bernstein v. CPSO,  O.J. No. 2182, the standard of proof for matters involving professional misconduct has required that the evidence be "clear, cogent and convincing."
The premise of the "Bernstein standard" was that the potential impact on career and reputation was so serious that the evidence must meet a certain, arguably heightened, standard. In F.H., the Supreme Court appears to try to eliminate that interpretation of Bernstein by clearly stating that there is a single standard of proof, namely balance of probabilities, for all civil cases, including cases in which the allegations are of professional misconduct.
Rather than reject the requirement of clear, cogent and convincing evidence, the court integrated it, finding that regardless of the nature of the civil case, evidence "must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test." The decision finds it inappropriate to have different levels of scrutiny of the evidence depending on the gravity of the allegations.
While the Supreme Court specifically rejects any formulation of standard of proof other than balance of probabilities, the application of the balance of probabilities test will not happen in a factual vacuum. Thus, tribunals will inevitably consider whether the potential outcomes to the health professional are relevant to the consideration of whether the evidentiary threshold is met.
In the year ahead, courts and tribunals will need to integrate the "other" standards into their decisions and, in doing so, determine whether the effects of Dunsmuir and F.H. will change the existing law or, in the health law context, amount only to a restatement of it.
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