Has Vavilov Made a Difference?

The Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653 fundamentally altered the criteria for judicial scrutiny of administrative decisions. Three years in, it’s fair to ask: Has it made a difference?

Some involved in professional regulation speculated that Vavilov would have a significant impact. Disciplinary findings of professional misconduct or incompetence might be particularly vulnerable as they are typically subject to a statutory right of appeal, and Vavilov changed the way in which such appeals would be determined. Following Vavilov, legal issues including the interpretation of the enabling statute would now be reviewed on a correctness standard rather than the more deferential reasonableness standard. Would reasons for decision of a disciplinary panel, generally drafted by non-lawyers, be subject to more intense scrutiny? There were also questions about whether more or less deference would be given to factual issues on appeal, since these would now be subject to the palpable and overriding error test (instead of being reviewed for reasonableness).

In order to gauge the level of impact, we compared pre- and post-Vavilov disciplinary appeal decisions of the Ontario Divisional Court. A quantitative review of decisions of this Court in a defined area of law over the past three years compared to the three years before Vavilov should provide some information as to the degree that the altered standard of review has impacted administrative law.

Methodology

The Divisional Court of Ontario is a quasi-specialist court that, among other things, hears almost all statutory appeals from professional discipline decisions. There is a degree of continuity for judges sitting on the Court that helps ensure a level of expertise in this area. The Court routinely cites Vavilov in its decisions on appeal from disciplinary findings when discussing the standard of review.

To minimize extraneous factors, we used the following criteria:

  • Only statutory appeals were considered.
  • Only discipline decisions from statutory regulators of professions were included.
  • Only appeals of decisions on the issue of finding were counted. The test for reviewing penalty (sanction) decisions (namely, whether the order is unfit, or contains an error in principle) was unchanged by Vavilov.
  • Appeals of rejected joint submissions were excluded as there is a different legal test for scrutinizing them.
  • Appeals by the regulator (there were very few) were disregarded to avoid any implicit hesitancy to reverse a panel’s conclusion in favour of a registrant.
  • Where a decision was appealed to the Court of Appeal or the Supreme Court, we used the decision of the highest level of court.
  • Where an appeal was partially successful, these were characterized as a reversal by the Court. We made one exception (for a pre-Vavilov decision) where the appeal was substantially unsuccessful.

Findings

We located 30 qualifying decisions post-Vavilov (to February 14, 2023). Of those, 27 (90%) were upheld and three (10%) were reversed in whole or part. Of those reversed, two (6.7%) contained both errors of law and errors of fact. One (3%) was reversed on the basis of procedural unfairness.

In the three years immediately prior to Vavilov, of the 30 most recent qualifying decisions, 24 (80%) were upheld and six (20%) were reversed. In five of the reversed decisions (17%) the ground was unreasonableness. For one of those five decisions, there was also an error of law. In the remaining reversed decision (3%) there was procedural unfairness.

As a comparison, we examined Divisional Court decisions on the issue of penalty (sanction) before and after Vavilov. As noted, the test for scrutiny of penalty decisions did not change. In the three years since Vavilov we located 20 decisions, of which only one (5%) was reversed. However, of the 20 most recent decisions on penalty before Vavilov, there were five (25%) reversals. Therefore, in both appeals of the findings and penalty appeals, there were fewer reversed decisions post-Vavilov than before. A possible alternative explanation for the decrease in penalty reversals is that, shortly before Vavilov, the Court of Appeal reversed the Divisional Court and reinstated a disciplinary penalty in the case of College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 (CanLII), which might have reduced any interventionist tendencies on penalty matters.

Interestingly, the Alberta Court of Appeal has reversed a much higher percentage of disciplinary appeals since Vavilov than in Ontario (but fewer cases were heard than in Ontario). The Alberta Court of Appeal has decided seven cases since Vavilov, of which three (43%) were reversed. Of the seven most recent such cases before Vavilov, only one (14%) was reversed. Obviously, that is a very small sample. However, if this pattern holds, Vavilov may have had more of an impact in Alberta.

Discussion

Even with the Ontario data, the sample sizes are small. In addition, a quantitative review can only tell part of the story. Each case is decided on its own facts and circumstances. Thus, it is difficult to make any definitive statements about the impact of Vavilov on statutory appeals of professional discipline decisions. However, based on this data, the concerns about disciplinary decisions becoming more vulnerable on appeal do not seem to have borne out. If anything, deference may even be enhanced in Ontario post-Vavilov, with 90% of disciplinary decisions being upheld, compared to 80% pre-Vavilov.

Whether factual issues, including credibility assessments, are being scrutinized more closely remains an open question and is not clear from a purely quantitative review (Professor Paul Daly has written that the palpable and overriding error standard is more deferential than reasonableness, and also that there may be a push for the two standards to converge: Paul Daly, Unresolved Issues after Vavilov, 2022 85-1 Saskatchewan Law Review, 2022 CanLIIDocs 1412). The Divisional Court has made a point of emphasizing that the palpable and overriding error test is different from reasonableness review (for example in Houghton v. Association of Ontario Land Surveyors, 2020 ONSC 863 (CanLII) and Miller v. College of Optometrists of Ontario, 2020 ONSC 2573 (CanLII)). However, under both standards, a high level of deference will be shown to the initial decision-maker’s assessment of a witness’ credibility.

It is also worth monitoring whether the scrutiny of disciplinary decisions is variable across Canada. If so, there may be further evolution over the short term.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.

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