Probably the best way to see the level of scrutiny of disciplinary decisions since the decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), https://canlii.ca/t/j46kb is to read current decisions of the Divisional Court. A recent example in a sexual abuse case is: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 (CanLII), https://canlii.ca/t/jfrsz.
One thing that becomes immediately obvious is the level of detail of the discussion of the credibility findings and sanction ordered. In pre-Vavilov cases, the courts often provided much shorter reasons essentially expressing deference to the tribunal that heard the evidence. In the Schwartz case the Court conducted a detailed analysis of the credibility findings and the sanction considerations.
For the credibility analysis the Court provided guidance on the palpable and overriding error test:
Palpable and overriding error is a deferential standard that recognizes the expertise and competence of the original trier of fact…. “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered to identify it, and is overriding if it has affected the result.” It is not in the nature of a “needle in the haystack, but of a beam in the eye” [citation omitted]….
In upholding the credibility findings the Court noted the following:
- The hearing panel does not need to address every credibility issue raised by the parties.
- There is a distinction between peripheral issues (e.g., the date of an event) and a central aspect of the event. The panel is entitled to put more weight on consistency on the central aspects of the event.
- There is also a distinction between applying different levels of scrutiny to the credibility of a party (which is not permitted) and finding one party credible and the other party not credible based on a similar level of scrutiny.
- The Court will give deference to the expertise of the panel in assessing significance of what is and is not recorded in the records and whether specialist terminology is being misused.
In upholding the sanction of revocation the Court noted the following:
- A determination that a practitioner is ungovernable, or unwilling to be remediated, is a finding of fact that is given deference by the courts. In this case the practitioner had participated in ethics and boundaries remediation before engaging in the conduct.
- In determining the proportionality of the sanction compared to other cases, the panel can consider more than just the actual behaviour.
In this case, while Dr. Schwarz’s misconduct may not have been as serious as some, it did persist over a number of years (2010 to 2012 and again in 2015), it did involve multiple occasions with 4 different people, one of whom was a vulnerable patient, and, most importantly, there was evidence to support the finding that Dr. Schwarz was not capable of being rehabilitated.
- The Court also said that a hearing panel can take into account changing societal norms in increasing the usual range of penalties, particularly where there was supporting evidence.
Furthermore, as the Committee found, the decision of the Ontario Court of Appeal in Peirovy does allow a College tribunal to take into account changing societal norms to justify a penalty that may be a departure from the range of penalties imposed in the past. In Peirovy, the Court was clear that it was not up to the Court to “change the penalty range for an entire category of behavior.” This was “not to suggest that penalty ranges cannot change”, but that “[t]he Discipline Committee was in the best position to assess whether a deviation from the range of penalties previously imposed for similar misconduct or a wholesale change was required”: Peirovy, at para. 83. The evidence of the change in societal norms that the Committee used was a task force report on sexual abuse in the medical profession that was released in the same year that Dr. Schwarz’s sexual misconduct towards Patient A occurred (2015). Thus, the norms were in place at the time that Dr. Schwarz committed the most serious offenses that led to the revocation of his certificate.
This case suggests that while the Courts will examine the evidence and arguments in more detail than in the past, the actual level of scrutiny is not much higher than before Vavilov.