What does it mean for courts to review a decision on the basis of reasonableness? And how does the concept of deference fit into the review process? These are questions that administrative law lawyers, including those working in professional regulation, have been asking since the courts revised its approach to judicial scrutiny in 2019. The decision of Thibert v. Health Professions Appeal and Review Board, 2022 ONSC 7045 (CanLII), discusses these questions at some length.
In that case the regulator directed a registrant, a plastic surgeon, to participate in remediation related to the care of a patient whose fingers were amputated in an accident. The regulator’s concern, which was affirmed by the independent review Board, was that the registrant should have come to see the patient rather than simply rely on an emergency room physician to do the surgery, and the registrant should have communicated greater urgency in referring the patient to another specialist the next day. The registrant argued that the decisions of the regulator and reviewing Board were unreasonable in all of the circumstances, which included uncontradicted expert opinion tendered by the registrant on the appropriateness of the course of care.
On judicial review, the Court indicated that, in general terms, deference requires:
- Recognition by the Court of the expertise of the tribunal;
- The Court not to impose its view as to how it would have decided the matter where the tribunal’s decision was reasonable; and
- That the challenging party bear the onus of proving that the decision is unreasonable.
The Court went further and stated that, in the professional regulation context, deference requires the Court to consider the regulatory intent of the legislation, which was the protection of patients, including future patients.
In applying the concept of deference to the facts of the specific case, the Court noted that there was a distinction between the regulator (and reviewing Board) not considering the registrant’s expert opinion at all and their taking it into account but not fully accepting it. The Court also found that the expert report was not “determinative” in the sense that it was for the regulator, not an expert witness, to ascertain whether remedial action was warranted in all of the circumstances.
The Court also said that deference necessitated the reviewing Court to consider all of the reasons for the regulatory decision as a whole. It was not sufficient for the registrant to challenge some of the reasons in isolation. For example, in this case it was open to the regulator to simply not accept the registrant’s version of events where there was significant inconsistent information. Similarly, it was open to the regulator to interpret the registrant’s actions in trying to contact the subsequent treating specialist several times as indicating that the referral was urgent.
To paraphrase Mark Twain, reports of the death of judicial deference are greatly exaggerated.