Administrative law – Physicians and surgeons – Competence – Decisions of administrative tribunals – Universities – Evaluation of residents – Labour law – Working conditions – Judicial review – Compliance with legislation – Standard of review – Patent unreasonableness
Pearlman v. University of Saskatchewan,  S.J. No. 618, Saskatchewan Court of Appeal, September 27, 2006, Cameron, Lane and Richards JJ.A.
Dr. Pearlman was a resident at the University and was funded by the Crohn’s and Colitis Foundation of America. During his third year of residency, Dr. Pearlman failed one of his rotations. The Orthopaedic Residency Training Committee placed Dr. Pearlman on probation for six months. An Investigation Committee was convened to examine the appropriateness of the decision. After some significant delay, the hearing of the Investigation Committee took place, after which the Committee rendered a report to the Acting Associate Dean. The Dean concluded that Dr. Pearlman should be placed on probation with strict terms. Dr. Pearlman appealed the Acting Dean’s decision to the Appeal Committee.
The Appeal Committee upheld the decision to place Dr. Pearlman on strict probation.
The University took the position that Dr. Pearlman’s program could not be reactivated until he had obtained acceptable third party funding for the remainder of his training, as per the University’s Funding Policy. Dr. Pearlman requested the intervention of the Lieutenant Governor of Saskatchewan, in her role as Visitor of the University. Dr. Pearlman’s position was that by requiring him to obtain external funding, the University was essentially refusing to implement the decision of the Appeal Committee. The Lieutenant Governor requested that a judge of the Court of Queen’s Bench act as a Visitor in relation to this matter, as permitted pursuant to the Queen’s Bench Act, 1998 S.S. 1998, c. Q-1.01.
The Visitor saw Dr. Pearlman’s application as turning on whether it was reasonable for the College of Medicine to insist on new third party funding as a precondition to resumption of his residency program. The Visitor concluded that the University had not acted reasonably because the object of the funding policy was to prevent wealthy students from buying their way into a program. The Visitor found that the purpose had been met when Dr. Pearlman was originally accepted into the College. The Visitor held that the Appeal Committee’s decision be implemented by the College of Medicine on certain strict conditions.
The University sought to quash the Visitor’s decision by way of judicial review application.
The first issue the Court decided was whether the Visitor’s decision was subject to judicial review, as the Visitor was an office created by The University of Saskatchewan Act, 1995. It was therefore just like any other statutory decision-maker that was subject to review by the courts on a standard dictated by the functional and pragmatic analysis established in Dr. Q. v. College of Physicians and Surgeons of British Columbia,  1 S.C.R. 226.
The second issue the Court decided was whether the Visitor erred by not requiring Dr. Pearlman to exhaust his appeal avenues. Dr. Pearlman could have pursued an appeal to the Faculty Council, but decided not to. The Court held that while the Visitor was no doubt reluctant to enter into an inquiry in most cases until the relevant appeal procedures have been played out, it did not mean that this was a formal legal imperative which invalidated the decision.
The third issue the Court decided was whether the Visitor employed the proper standard of review when examining Dr. Pearlman’s situation. It held that the approach which the Visitor applies in adjudicating a complaint, depends on context. The Court held that in this case the patent unreasonableness standard urged by the University was inappropriate for purposes of the Visitor’s consideration of the Funding Policy issues. The Court explained that the standard was so deferential that the Visitor would have effectively denied his institutional role by refusing to intervene unless the College had acted in such an unreasonable fashion.
The fourth issue the Court considered was what standard of review was appropriate in considering the Visitor’s decision. After considering the four factors of the functional and pragmatic approach adopted by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration),  1 S.C.R 982, the Court of Appeal concluded that the proper standard of review in relation to the Funding Policy was patent unreasonableness. The key to its conclusion was the third factor of the Pushpanathan test, the purpose of the legislative provision. The Court explained that the nature of the Visitor’s office, created by statute, was an independent vehicle for ensuring compliance with the domestic rules of the University. That role carried with it an expectation that the courts will interfere only exceptionally with decisions of the Visitor made within its jurisdiction. According to the Court of Appeal, patent unreasonableness is the standard of review which best reflects that expectation.
The Court of Appeal essentially overturned the Visitor’s decision on its interpretation of the Labour Standards Act. It held that the Visitor’s decision did not comply with this Act.
The Court explained that the conditions set out by the Visitor as prerequisites to the implementation of the Appeal Committee’s decision could not be reconciled with the Labour Standards Act. It held that the conditions prescribed by the Visitor put the College in a position where it would have been required to act in a manner contrary to the terms of the Labour Standards Act and the Regulations and put Dr. Pearlman in a position where he could not claim the benefit of that Act and the Regulations.
The Court of Appeal set aside the Visitor’s decision and remitted Dr. Pearlman’s complaint to the Visitor for further consideration.
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