Administrative law – Barristers and solicitors – Disciplinary proceedings – Disbarment – Boards and tribunals – Judicial review – Standard of review – Reasonableness simpliciter
Law Society of New Brunswick v. Ryan,  S.C.J. No. 17, Supreme Court of Canada, April 3, 2003, McLachlin C.J. and Iacobucci, Major, Binnie, Arbour, LeBel and Deschamps JJ.
The respondent, Mr. Ryan (“Ryan”), engaged in conduct which all of the parties admitted amounted to an egregious departure from professional standards of practice. The Discipline Committee of the Law Society of New Brunswick imposed a sanction of disbarment.
Approximately one year later, Ryan brought medical evidence before the Discipline Committee in an attempt to establish that he had been suffering from a mental disorder at the time of the admitted misconduct. The Discipline Committee held that Ryan did not suffer from any psychiatric illness that could be diagnosed and confirmed that disbarment was the appropriate sanction.
Ryan appealed to the New Brunswick Court of Appeal. The Court of Appeal determined that the standard of review to be applied was “on the spectrum” between correctness and patently unreasonable, but closer to correctness.
In applying the standard of review, the Court of Appeal suggested that the penalty of disbarment was unusual when compared to penalties in similar cases. The Court of Appeal allowed the appeal and ordered that Ryan be suspended indefinitely with conditions to be met should he seek reinstatement.
The Supreme Court of Canada allowed the appeal of the Law Society of New Brunswick and held that there were only three standards of judicial review of administrative decisions: correctness, reasonableness and patent unreasonableness. The Court further held that the pragmatic and functional approach to judicial review of administrative action should be applied and that the standard of reasonableness simpliciter is not a floating standard that changes according to the circumstances but always involves asking the same question about the challenged decision, namely whether the reasons, taken as a whole, are tenable as support for the decision.
With respect to the three standards available in judicial review of administrative decisions, the Court said that additional standards “should not be developed unless there are questions of judicial review to which the three existing standards are obviously unsuited”.
The Court reviewed the four factors that must be considered in determining the appropriate standard of review:
…(1) the presence or absence of a privative clause or a statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question — law, fact, or mixed law and fact.
The Supreme Court of Canada found that there was no privative clause in the Law Society Act and in addition, there was a broad right of appeal provided in section 68 of that Act. However, the Court noted that:
The absence of a privative clause does not imply a high standard of scrutiny where other factors bespeak a low standard.
The Supreme Court of Canada held that the Law Society’s Discipline Committee does have greater expertise than a court in the choice of sanction for breaches of professional standards, in that members of the public are appointed to the Discipline Committee and may be in a better position to understand how particular forms of conduct and choice of sanctions would affect the general public’s perception of the profession. The Discipline Committee had relative expertise generated by repeated application of the objectives of professional regulations set out in the Act to specific cases of alleged misconduct. The expertise factor militated in favour of a higher degree of deference.
The purpose of the Law Society Act was held to suggest a higher degree of deference to the decisions of the Discipline Committee, because the Act involved policy issues and the balancing of multiple sets of interests.
The question of what sanction Mr. Ryan should have faced as a result of his misconduct was held to be a question of mixed fact and law, but one that involved a more fact-intensive approach, such that the degree of deference to be afforded should have been high.
The appropriate standard of review was reasonableness simpliciter. The Court of Appeal should not have substituted its own view of the correct answer but should have intervened only if the decision could be shown to be unreasonable. The Supreme Court of Canada found that the reasons given were tenable and grounded in the evidence, and supported the penalty of disbarment.
The appeal was allowed and the judgment of the New Brunswick Court of Appeal set aside, with the order of the Discipline Committee of the Law Society of New Brunswick being restored.
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