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Judicial Review - SOR - Expertise (1)

. BCE Inc. v. Québecor Média Inc.

In BCE Inc. v. Québecor Média Inc. (Fed CA, 2022) the Federal Court of Appeal considered the role of a tribunal's expertise in assessing reasonableness in a JR, and how that expertise may alleviate the detail required by reasons for decision:
[61] The Supreme Court emphasized the use of specialized knowledge by decision makers, as demonstrated in their reasons. Sensitivity to a tribunal’s demonstrated expertise may reveal to a reviewing court that conclusions (or reasoning) that are puzzling or counterintuitive on their face may nevertheless accord with the purposes and practical realities of the relevant administrative regime. This demonstrated experience and expertise may also explain why a given issue is treated in less detail than it would perhaps be in a judicial decision.

....

[63] All of this to say that the Commission’s decisions are not to be read without reference to the Commission’s practices and procedural guidelines. It is also worth noting that the Commission often deals with sophisticated litigants, like Bell and Québecor, who are very knowledgeable with respect to its policies and procedures. In this case, the Commission has a Broadcasting and Telecom Information Bulletin CRTC 2013-637 which deals with "“Practices and procedures for staff-assisted mediation, final offer arbitration and expedited hearings”". Similarly, the Wholesale Code deals with the factors which assist in the determination of the fair market value of a service. These documents shed light on the Commission’s analysis. The conclusion to be drawn from the Supreme Court’s comments about tribunal reasons is that they cannot be read as though all relevant considerations must be addressed within the four corners of the decision itself.

[64] In particular, the Commission does not have to explain to the parties what they already know. For that reason, the Commission’s decisions in these cases were brief. The Commission’s reasons reflect the fact that it is writing for sophisticated parties who have access to its procedural and substantive documentation.
. Nagy v. University of Ottawa

In Nagy v. University of Ottawa (Div Court, 2022) the Divisional Court considered the issue of judicial review standard of review deference and expertise:
[9] As the court said in Vavilov, in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, the court held that correctness was the standard of review of an arbitrator's decision regarding whether the union was entitled to relitigate an issue that had been decided against the griever in a criminal proceeding. It said that the body of law dealing with the relitigation of issues finally decided in previous judicial proceedings is complex and lies at the heart of the administration of justice; and that the application of the governing principles of res judicata and abuse of process is clearly outside the sphere of expertise of a labour arbitrator.[1]

[10] I do not think that what the court said about the standard of review in Toronto (City) v. C.U.P.E survives Vavilov. In Vavilov, the Supreme Court made it clear that it was revising the framework of judicial review of administrative bodies. It also made clear that the starting point was the legislature’s intent, not the expertise of the tribunal.
. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered expertise in an medical investigative body as it determines standard of review:
(ii) The Clinical Issues were Beyond the Expertise of the ICRC Panel

[46] The Applicant also complains that the ICRC did not have expertise in the clinical issues before it and did not obtain an independent opinion from an ophthalmologist as past HPARB decisions encourage. He submits that the ICRC did not understand the information on the record.

[47] The reasonableness of the Board’s affirmation of the remedial action taken by the ICRC is not, as submitted by Dr. Maini, affected by the surgical specialties of the individual members of the ICRC panel deciding this matter.

[48] The Board has recognized that the composition of the ICRC is within the discretion of the College (KW, para. 21), and that the ICRC itself is in the best position to determine whether its members have sufficient expertise to assess the complaints that come before it (DSH v. RP, 2021 CanLII 75026 (ON HPARB), para. 56; KW, para. 21).

[49] There is no requirement that all members be from different specialties or from specialties similar to that of the member subject to the complaint (KW, para. 21). That a physician disagrees with the ICRC’s assessment or has researched the issues himself and provided academic studies to support his opinion, is not a sufficient reason to conclude that the ICRC lacked the knowledge required to consider the complaint where, as here, the record supports the conclusions it reached (DSH, paras. 58, 68).

[50] As the Board noted in its reasons, the ICRC’s knowledge and expertise had to be assessed considering the complaint screening function it performed. At paragraphs 30 and 32, the Board concluded that the ICRC possessed the requisite medical knowledge to assess the sufficiency of Dr. Maini’s process for obtaining informed consent for surgery - a matter applicable to all surgeons regardless of specialty. We agree with that finding.

[51] Surgical Panels of the ICRC, regardless of the qualifications of their individual members, are well-placed to consider issues that are of general application across surgical specialties, such as obtaining informed consent (SVK v. CPC, 2020 CanLII 36281 (ON HPARB), para. 34); professional communication with patients and their families (MF v. KS, 2015 CanLII 106293 (ON HPARB), paras. 28-30); reviewing medical imaging, assessing progress notes, considering opinions from consulting specialists (DCW et al. v. SC, 2014 CanLII 39861 (ON HPARB), paras. 27, 30, 46-47, 65); and post-surgical follow-up care (AA v. CG, 2017 CanLII 15519 (ON HPARB), para. 40).

[52] The ICRC’s may also obtain an independent medical report if it is necessary and appropriate to do so in a particular case (KW, para. 21; KW, paras 21, 56; MF, para. 26).

[53] The ICRC is similarly free to reject the opinions of independent experts whose reports it obtains, even those that are favorable to the member, so long as it explains its reasons for doing so (DCW, para. 48).

[54] Deference is owed to the College’s expertise in determining what is relevant to the subject matter of its investigation and its determination of the scope of its investigation, including its requests for information (Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658 (Div. Ct.), para. 40). Exercising its discretion not to obtain an expert opinion does not render an ICRC’s decision unreasonable. The ICRC made no error in exercising its discretion in this case not to obtain an expert opinion.
. Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers

In Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers (Div Court, 2022) the Divisional Court considered the role of the expertise of a tribunal (here a labour relations arbitrator) with respect to the deference (SOR) it should be accorded on judicial review:
[28] In particular, Vavilov, at para. 93, cautions judges conducting a reasonableness review to be attentive to the application by decision makers of specialised knowledge. In the context of labour relations cases, in Electrical Power Systems Construction Association v. Labourers' International Union of North America, 2022 ONSC 2313 (Div. Ct.), at paras. 14 and 15, this court recently observed:
[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that "the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction" (Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353, at para. 42).

[15] The interpretation of collective agreements is at the very heart of the Board's jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.



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