In College of Physicians and Surgeons of British Columbia v. Health Professions Examination Board2022 BCCA 10, the British Columbia Court of Appeal (BCCA) clarified how courts should review decisions of administrative appeal bodies that are subject to statutory review standards.
In that case, the Review Board’s statute required it to review the “adequacy” of the College of Physicians and Surgeons of British Columbia’s (CPSBC) investigation into a complaint against a physician, and to review the “reasonableness” of the CPSBC’s decision on the complaint.
A five-judge BCCA panel overturned its previous authority that an “adequate” standard of review amounted to a deferential standard of “reasonableness” under administrative law principles. The Court held that if Parliament had intended the Review Board to defer to the CPSBC, it would have used the well-known language of “reasonableness”. Rather, the use of the term “adequacy” indicated that Parliament intended the Review Board to make its own assessment of the investigation.
The Court also clarified that where an administrative appellate body applies a deferential standard of review, on judicial review, a court should not “stack” another deferential standard on top of the decision. For example, the Court ruled that it did not have to consider whether the Review Board acted patently unreasonably in concluding that the CPSBC disposed of the complaint unreasonably. The Court ruled that it could take a “shortcut” and directly assess the reasonableness of the CPSBC’s decision.
This decision thus provides the following framework for how courts should review the decisions of administrative review bodies subject to statutory review standards:
a) If the criterion of statutory control does not do not require the appellate body to defer to the original decision maker (for example, in the case of an “adequacy standard”), then the reviewing tribunal applies the applicable standard for judicial review (for example, reasonable or patently unreasonable decision); corn
(b) If the statutory standard requires the appellate body to defer to the original decision maker (for example, in the case of a “standard of reasonableness”), then the reviewing court must apply the standard of deference that the review body was expected to apply (eg, the Review Tribunal considers the reasonableness of the original decision).
Interestingly, the BCCA also took the opportunity to expressly decline calls from commentators who, following Vavilovthe Court should clarify the “patently unreasonableness” standard that continues to exist under British Columbia law. Administrative Tribunals Act. While the Court recognized that the common law standard of reasonableness has continued to evolve, it noted that the standard of patent unreasonableness has remained stable as the most deferential standard of review in Canada.