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Review - Grounds - Failure to Engage with Party's Position. Um v. College of Naturopaths of Ontario
In Um v. College of Naturopaths of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a combined RHPA appeal, this from professional misconduct rulings by the Discipline Committee of the College of Naturopaths of Ontario that alternatively suspended, and revoked, Certificates of Registration.
The court considered what I characterize as a 'procrustes' issue, here where the court justified the College in avoiding the appellant's legal submissions on a specific issue:d. Misconduct Allegations Based on Standards of Practice that had no Legal Authority
[60] The appellants argued that the allegations of misconduct were based on breaches of standards of practice that were not passed into regulation. The appellants relied upon The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario [16] and that this breached s. 95(1.1) of the Code.
[61] That section provides that:Standards of practice
(1.1) A regulation under clause (1) (n) may adopt by reference, in whole or in part and with such changes as are considered necessary, any code, standard or guideline relating to standards of practice of the profession and require compliance with the code, standard or guideline as adopted. [62] The College submits that the General Regulation[17] under the Naturopathy Act, 2007, establishes enforceable statutory Standards of Practice (“SOP”) and no further evidence was required to confirm these standards. With respect to other SOP tendered,[18] the College states that these SOP either incorporated statutory references or contained information so obvious that expert evidence was not required to demonstrate the standard.
[63] The appellants state that, as the Panels did not address these arguments, the Panels reasons are deficient, constituting an error of law.
[64] As the College notes, tribunal reasons “do not have to consider and comment upon every issue raised by the parties in their reasons”.[19] As the Supreme Court observed in Vavilov, “the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.”[20]
[65] In this case, it does not. The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario decision makes it clear that SOP may be used as evidence of professional standards in support of an allegation of professional misconduct.[21] The submissions made by the College were correct. The arguments raised by the appellants were obviously incorrect. That the Panels did not address these meritless submissions of the appellants does not cause this Court to lose confidence in the outcomes reached by the Panels. . Evashkow v. Melia
In Evashkow v. Melia (Div Ct, 2025) the Divisional Court dismissed an OBCA oppression [s.248] appeal, here brought against a court order that removed a joint corporate CEO/director.
Here the court noted that grounds for review exist where the court fails to engage with a 'relevant consideration':[9] Appellate intervention in a discretionary decision is also appropriate where a lower court has given no weight, or insufficient weight to a relevant consideration: Aquam Corp. v. Coffey et al, 2019 ONSC 7218, at para. 6, citing Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC), [1992] 1 S.C.R. 3, at pp. 76-77. . Zoghibi v. Air Canada
In Zoghibi v. Air Canada (Fed CA, 2024) the Federal Court of Appeal considered an appeal of a JR challenging a CHRC decision, here stemming from a complaint by an airline passenger seeking 'financial relief' for alleged discrimination.
Here the court considers practice when a tribunal fails to consider an argued issue - that is, can it be argued as a fresh law issue on review (appeal/JR), or should it be remitted back to the tribunal for re-hearing on that issue (it's the latter):[29] Issue (6) was raised before the Commission but, as mentioned above, the Commission never dealt with it. The Federal Court dealt with it on its merits. On the authority of Alberta Teachers, it should not have done so: see paragraphs 26-27, above, in these reasons.
[30] The fact that issue (6) is a constitutional issue does not change the situation. Where the issue is one of constitutional law and the administrative decision-maker has the jurisdiction to deal with it, the administrative decision-maker, as the merits-decider, is the forum to raise it. In those circumstances, an applicant on judicial review cannot bypass the power of a tribunal to decide an issue, and proceed directly to the reviewing court: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257 at paras. 28-55.
[31] Where, as here, the administrative decision-maker failed to deal with a constitutional issue placed before it and an applicant submits that the administrative decision-maker had jurisdiction to decide it, an applicant should attack that failure and ask for the constitutional issue to be remitted back for redetermination. The Commission, not a reviewing court, has the power to consider whether it has jurisdiction to assess the constitutional issue and, if so, whether the constitutional issue, along with any other issues, should be sent to the Tribunal for adjudication. .... . Pham v. Qualified Metal Fabricators Ltd.
In Pham v. Qualified Metal Fabricators Ltd. (Ont CA, 2023) the Court of Appeal held that a 'failure to engage with a party’s position' is a legal error:[24] However, the motion judge operated on the mistaken understanding that both parties agreed to proceed by way of motion for summary judgment. Because of this mistaken assumption, the motion judge did not determine whether it would be fair and just to proceed in summary fashion. Nor did he acknowledge that the appropriateness of summary judgment was in dispute. The failure to engage with a party’s position is an error in principle: Singh v. Concept Plastics Limited, 2016 ONCA 815, at para. 24.
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