The Implications of Using a Standard of Reasonableness versus Correctness: A Case Comment on Pomarenski v. Saskatchewan Veterinary Medical Association

September 14, 2020

Danielle R. Nichols*

 

SUMMARY

 

This comment discusses the implications of a remark made by the Court of Queen’s Bench for Saskatchewan in Pomarenski v. Saskatchewan Veterinary Medical Association Professional Conduct Committee, in which a disciplinary decision of the Saskatchewan Veterinary Medical Association was substantively reviewed. This comment also discusses how the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, which significantly alters the standard of review framework, will impact decisions such as Pomarenski.

 

I. INTRODUCTION

In Pomarenski v. Saskatchewan Veterinary Medical Association Professional Conduct Committee,[1] Justice Currie of the Court of Queen’s Bench for Saskatchewan substantively reviewed a disciplinary decision of the Saskatchewan Veterinary Medical Association. Pomarenski presents an opportunity to discuss the implications associated with determining whether a reasonableness or correctness standard of review should be applied.

 

II. FACTS

Dr. Tiffany Pomarenski, a veterinarian in Saskatchewan, was charged with “professional incompetence and/or professional misconduct” by the professional conduct committee (“the Conduct Committee”) of the Saskatchewan Veterinary Medical Association (“the Association”).[2] The Association governs the province’s veterinarians pursuant to the authority provided by The Veterinarians Act, 1987.[3] The Conduct Committee had received multiple complaints about Dr. Pomarenski related to different incidents and consequently commenced an investigation.[4] She was charged based on the findings from the investigation in relation to one particular incident.[5] The incident in question involved Dr. Pomarenski’s treatment of a dog that was injured after being hit by a quad.[6] The owner of the dog had brought it to Dr. Pomarenski’s home for evaluation.[7] However, Dr. Pomarenski was licensed as an ambulatory practitioner, which meant that she “was licensed to travel to animals needing care, but…was not licensed to treat animals at a clinic or at her home.”[8] In addition, Dr. Pomarenski’s license restricted her from “perform[ing] major surgery or…administer[ing] general anesthesia.”[9]

When the injured dog was brought to Dr. Pomarenski’s home, she suspected that the dog had a dislocated hip, so “[s]he administered a general anesthesia drug” and “attempted to manipulate the limb to reverse the dislocation.”[10] The limb manipulation was unsuccessful, so Dr. Pomarenski advised the pet owner to take the dog to a veterinary clinic.[11] The owner followed Dr. Pomarenski’s instructions, and the veterinarian who later assisted the dog made a complaint about Dr. Pomarenski’s treatment of the dog at her own home.[12] Dr. Pomarenski was charged by the Conduct Committee and the charge was prosecuted in a hearing before the Association’s discipline committee (“the Discipline Committee”).[13]  The Discipline Committee found Dr. Pomarenski guilty of a breach as alleged in five particulars and set a penalty including a letter of reprimand and payment of costs but no fine.[14] Dr. Pomarenski appealed the guilty finding as well as the penalty of costs.[15] The scope of this comment relates specifically to the standard of review applied to the Discipline Committee’s decision of Dr. Pomarenski’s guilt.

 

III. THE STANDARD OF REVIEW

Both Dr. Pomarenski and the Conduct Committee agreed that the applicable standard of review for the appeal was reasonableness, and when the decision was reviewed by the Court of Queen’s Bench for Saskatchewan, Justice Currie came to the same conclusion.[16] Dr. Pomarenski argued that the Discipline Committee’s decision concerning her guilt was unreasonable for two reasons:

• The discipline committee failed to appreciate the unique, emergent situation that Dr. Pomarenski was in when she decided to treat the dog at her home, and so the committee failed to appreciate the reasonableness of Dr. Pomarenski’s actions in those circumstances.

 

(b)       The discipline committee erred in relying on the expert opinion evidence of Dr. Judith Currie rather than relying on its own knowledge and expertise.[17]

 

Dr. Pomarenski’s argument surrounding the Discipline Committee’s alleged failure to appreciate the situation hinged on the fact that it did not “take [the] circumstances into account when determining whether she was guilty of an offence,”[18] and it “effectively ruled that any deviation from perfect practice is a failure to meet the standard of practice – but in real life perfection cannot reasonably be the standard of practice.”[19] Currie J. found that the Discipline Committee did, in fact, take the context of Dr. Pomarenski’s decision into consideration, and concluded that its decision was therefore not unreasonable.[20] However, Currie J. also stated the following:

The arguments advanced by Dr. Pomarenski on this appeal are good, logical arguments that would be appropriate to advance if the standard of review were correctness. Since the arguments essentially assert that the discipline committee’s decision was wrong, however, they are not persuasive where – as here – the standard of review is reasonableness.[21]

 

IV. ANALYSIS

While I agree with the use of the reasonableness standard due to the state of the law on the standard of review at the time the decision was made, I am left feeling uneasy regarding the Court’s comment that Dr. Pomarenski’s arguments held merit but were unpersuasive due to the standard selected. It is unclear as to how Dr. Pomarenski’s arguments and reasons were “good” and “logical,” but only appropriate in an argument under a correctness standard. Correctness and reasonableness are two different standards, but regardless of the standard chosen, it is likely that Dr. Pomarenski’s lawyer would have made very similar—if not the same—arguments.

Brendan Van Niejenhuis, an intervenor on behalf of the Queen’s Prison Law Clinic in Bell Canada v. Canada (Attorney General),[22] made a similar argument before the Supreme Court of Canada, stating that “there is no special way to argue that something is unreasonable and there is no special way to identify something that’s unreasonable without thinking it through the same way we do when we ask whether a question of law is correct or not.”[23]

Currie J.’s comments could additionally suggest to Dr. Pomarenski that her case would have been decided differently had the law instead allowed for a standard of correctness. The Court merely said that her arguments were “persuasive”. This is not to say that her arguments would have substantively changed the outcome of the decision had the standard been different. However, the suggestion is there, nonetheless.

It is important to note that, after Pomarenski was decided, the standard of review framework was significantly changed by Canada (Minister of Citizenship and Immigration) v. Vavilov.[24] Now, there is a “default position of reasonableness review”[25] which can only be rebutted in certain circumstances.[26] One circumstance is an application for judicial review where the enabling statute provides a right of appeal,[27] which was the case in Pomarenski.[28] According to Vavilov, a court hearing a statutory appeal is to use the appellate standard of review as set out in Housen v. Nikolaisen.[29]

When a decision involves a pure question of law, the applicable standard of review is correctness; whereas if it involves a question of fact, or a question of mixed law and fact, the standard of review is palpable and overriding error.[30] The issue on review in Pomarenski appears to be one of mixed law and fact. However, a standard of palpable and overriding error is unlikely to have helped Dr. Pomarenski. Therefore, even if this case was decided after Vavilov, the outcome would likely have been the same.

 

V. CONCLUSION

When a litigant loses a case, it is of utmost importance for the court to demonstrate that the litigant was listened to, that their arguments were considered, and that the outcome was legally justified. The rationale from Dunsmuir v. New Brunswick,[31] which gives deference to administrative bodies if specific parameters are met, is valid; however, a lack of explanation of those parameters may leave litigants—such as Dr. Pomarenski—feeling confused, frustrated, and questioning why, if they had a “good” and “logical” argument, they didn’t win. Although Vavilov has made the standard of review clearer and more concise, it is still vital for courts to ensure that litigants understand the judgments they receive and the reasons behind those judgments.

 

*           JD Candidate (Saskatchewan), MBA Candidate (Saskatchewan), BComm Marketing (Saskatchewan).

[1]           2019 SKQB 264 [Pomarenski].

[2]           Ibid at para 6.

[3]           SS 1986-87-88, c V-5.1.

[4]           Pomarenski, supra note 1 at para 1.

[5]           Ibid.

[6]           Ibid at para 2.

[7]           Ibid.

[8]           Ibid.

[9]           Ibid.

[10]         Ibid at paras 3–4.

[11]         Ibid.

[12]         Ibid at para 5.

[13]         Ibid at para 7.

[14]         Ibid at paras 7–8.

[15]         Ibid at para 10.

[16]         Ibid at para 11.

[17]         Ibid at para 14.

[18]         Ibid at para 16.

[19]         Ibid.

[20]         Ibid at paras 21, 23.

[21]         Ibid at para 22 [emphasis omitted].

[22]         Bell v Canada (Attorney General), 2019 SCC 66, 441 DLR (4th) 155.

[23]         “Supreme Court Hearings: Bell Canada, et al v Attorney General of Canada” (6 December 2018) at 01h:28m:50s, online (video): Supreme Court of Canada <www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=37896&id=2018/2018-12-06–37896-37897-37748&date=2018-12-06>.

[24]         2019 SCC 65, 441 DLR (4th) 1 [Vavilov].

[25]         Ibid at para 30.

[26]         Ibid at para 17.

[27]         Ibid at paras 17, 36–52.

[28]         The Veterinarians Act, 1987, supra note 3, s 28(1).

[29]         Housen v Nikolaisen, 2002 SCC 33 at paras 8, 10, 19, 26–37, [2002] 2 SCR 235, cited in Vavilov, supra note 24 at para 37.

[30]         Vavilov, supra note 24 at para 37.

[31]         2008 SCC 9, [2008] 1 SCR 190.