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Absent a misdirection in law or on the facts, an appellate court will not intervene in a discretionary decision of a professional regulatory regarding penalty unless the decision on penalty is so wrong as to amount to an injustice

Manitoba

,

Canada

Appellate Intervention In Dhalla v College of Physicians and Surgeons of Manitoba, 2022 MBCA 7, the Manitoba Court of Appeal dealt with an appeal from a decision of the Inquiry Committee of the College of Physicians and Surgeons of Manitoba. The decision found that he had committed acts of professional misconduct. The appellant appealed the suspension of his license and the costs decision. Standard(s) of Review Per Vavilov, where a legislature has provided for an appeal from an administrative decision to a court, the appellate standards of review are applied, and the applicable standard is to be determined by the nature of the question (para. 43).Where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with [Housen] at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable) (para. 47). An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it and is overriding if it has affected the result (para. 48).Aside from the civil standards described in Housen, there are decisions that are discretionary in nature. Appellate review of a discretionary decision calls for deference absent error in principle or palpable and overriding error of fact, or unless the decision is so clearly wrong as to yield an unjust result (paras. 49-50). Penalty Decisions Standard(s) of Review Per Vavilov, where a legislature has provided for an appeal from an administrative decision to a court, the appellate standards of review are applied, and the applicable standard is to be determined by the nature of the question (para. 43). Pre-Vavilov, penalty decisions of professional disciplinary bodies were reviewed on the standard of reasonableness (para. 51). Historically, decisions concerning penalty have been considered discretionary decisions. That is, they involve a number of considerations, including issues of law, fact, and mixed fact and law. The final decision involves a balancing exercise requiring the College to choose among a range of remedial choices. Thus, the civil deferential standard would apply post-Vavilov (para. 59).Pursuant to Perth Services, the standard for intervention in a discretionary decision is very high (para. 49). Absent direction from the Supreme Court or a duly constituted panel of five members of the Manitoba Court of Appeal reconsidering the decision in Perth Services, the deferential standard applicable to discretionary decisions made in the civil context should continue to be applied by this Court (para. 69). Costs Standard of Review A court should set aside a costs award on appeal only if the administrative body has made an error in principle or if the costs award is plainly wrong. This standard is highly deferential (para. 88). Decision Absent a misdirection in law or on the facts, an appellate court will not intervene in a discretionary decision of a professional regulatory regarding penalty unless the decision on penalty is so wrong as to amount to an injustice (paras. 70-71).

April 14, 2022
Dhalla v College of Physicians and Surgeons of Manitoba, 2022 MBCA 7