Hyperlawhypertext legal database Zenner v. Prince Edward Island College of Optometrists 2005 SCC 77

← Cases

Zenner v. Prince Edward Island College of Optometrists

2005 SCC 77 [2005] 3 SCR 645 Court SCC Decision date 2005-12-16 Docket 30422 English

PartiesRainer Zenner Appellant·Prince Edward Island College of Optometrists Respondent

Judges McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise

Delivered by Major J. (McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)

On appeal from Prince Edward Island

Subjects Administrative law

Contents

Reasons for Judgment — Major J. (McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)

I. Introduction

Major J. —

This appeal is the result of the difficult relationship between the appellant (“Zenner” or “Dr. Zenner”) and the Prince Edward Island College of Optometrists (the “respondent” or the “College”).
In 1996, the College refused to renew the appellant’s licence, concluding that he had not complied with the requirements of the Optometry Act, R.S.P.E.I. 1988, c. 0-6 (the “Act”), and its Regulations (Licensure Regulations, P.E.I. Reg. EC473/95), to provide evidence of continuing education (“CE”).
In 2001, the appellant filed an application for judicial review of the 1996 decision not to renew his licence and, in the meantime, applied to have a new licence issued by the College. On November 26, 2001, the College agreed to issue the appellant a new licence but, as permitted under s. 15(7) of the Act, imposed four conditions:
(1) provide evidence of active practice;
(2) pay fines totalling $14,000;
(3) complete an ethics course;
(4) pass the College jurisprudence examination.

Not content with the conditions imposed for the issuance of the new licence, the appellant amended his original application for judicial review to also include judicial review of the November 26, 2001 decision. Both judicial reviews were dismissed by the Prince Edward Island courts.

The College properly exercised its jurisdiction for the 1996 decision, but misinterpreted s. 15(4) of the Regulations. Dr. Zenner was not required to demonstrate proof of his 1994 hours of CE, or proof of 24 hours for 1994 and 1995. However, the request made for proof of 12 hours of CE for 1995 was valid. This request was repeatedly made but never complied with. Relying on his erroneous interpretation of the law, Dr. Zenner refused to provide proof of any hours and this was the immediate cause of the College’s refusal to renew his licence. With regard to the 2001 decision, the College improperly imposed condition 3 of its decision. For the following reasons, the appeal is allowed in part.
The appellant has been a practising optometrist in Ontario and Prince Edward Island since the late 1970s. In 1994, the Act was amended and required proof of 12 credit hours of CE in the preceding year or 36 hours in the preceding three years before a licence to practise optometry could be renewed under s. 15(1) and (4) of the Regulations. The amendments to the Act received Royal Assent on May 19, 1994, but the amendment to the Regulations only came into force on July 8, 1995.
The appellant received his licence for 1995, but failed to provide the respondent with proof that he had obtained four hours of CE in 1994, as required under the old provisions of the Act. A curious aspect of the former requirement is that it was apparently never enforced, as it was considered to be a disciplinary matter. In a series of letters to the appellant, the College stated its requirements for CE in 1994 and informed him of the pending changes to the legislation. These changes explain the new approach of the College and its appropriateness.
At the end of 1995, the College refused to renew the appellant’s licence for 1996 because he had failed to submit the evidence of CE for both 1994 and 1995. Nevertheless, despite numerous letters sent by the College informing him that his licence had expired, the appellant continued to practise optometry in Prince Edward Island until July 1997 when the College issued a public notice that his licence had expired on January 1, 1996.
In late 1995, the appellant sought legal advice. From 1995 until October 2000, he spoke to his lawyer almost weekly and was assured by her that she was dealing with the College and proceeding to court on his behalf. Instead, it turned out that she forged two court decisions in his favour. In fact, his counsel had taken no action and was subsequently disciplined by her law society. It was also revealed that someone at the College had stated to his counsel that it would be “over their collective dead bodies that they would ever reinstate Dr. Zenner”.
When the appellant became aware of his counsel’s failure to deal with the College for his licensing problems, he immediately met with the College Registrar to explain the problem and to provide copies of his CE courses to date.
In November 2000, the appellant retained another lawyer and applied for reinstatement of his licence. He did not receive a reply. His new counsel, as instructed, sent a letter of application to the College. The College’s response on February 12, 2001 was that, as more than two years had passed since the appellant had been licensed, he was required to apply as though for an initial licence, by paying a fee and submitting evidence that he had practised in another jurisdiction.
On February 16, 2001, the appellant sent the fee but did not send evidence that he had been practising in another jurisdiction. On November 26, 2001, the College informed the appellant of the four conditions of his reinstatement, pursuant to s. 15(7) of the Act. They were: (1) that he provide evidence of 900 hours of practice within the last five years or 450 within the last three years (which he provided satisfactorily on December 7, 2001); (2) that he pay fines totalling $14,000 for having contravened s. 18(1)(a) of the Act (this condition was removed at trial); (3) that he complete an accredited optometric or medical ethics course, the curriculum of which was to be provided in advance to the College for approval; (4) that he pass the provincial jurisprudence examination set by the Prince Edward Island College of Optometrists, which is an examination on the knowledge of the Act and Regulations applicable to the practice of optometry.
On April 12, 2001, prior to the College’s letter setting out the four conditions, the appellant sought judicial review of the 1996 decision not to renew his licence in the Trial Division and requested mandamus “directing the respondent to issue its decision on the [appellant]’s application for licensure” and directing the College to issue a license to the appellant. Later, an amended application sought judicial review of the conditions imposed in the November 26, 2001 letter.
The relevant provisions of the Act and Regulations are attached in the Appendix.
Campbell J. dismissed the application for judicial review with respect to the 1996 decision because it was barred by s. 3(1.1) of the Judicial Review Act, R.S.P.E.I. 1988, c. J-3. He refused to grant an extension of time and noted that the application had not been filed until more than six months after the appellant became aware that his initial counsel had not taken the required action.
As to the 2001 decision, Campbell J. reviewed the respondent’s actions and its legislative authority and found that the conditions imposed by the respondent were within the authority granted by the Act and the Regulations passed under it. He dismissed the application for judicial review.
Webber J.A. held that the power to grant extensions of time was discretionary. Deference had to be shown to the College’s decision, but its discretion had to be exercised judicially. In this case, the appellant had a bona fide intention to challenge the College’s decision and his original counsel’s conduct provided him with a more than reasonable explanation for the delay up to October/November 2000.
Webber J.A. applied the pragmatic and functional approach to the standard of review and held that the appropriate standard was reasonableness. On the substance of the application, she held that the respondent did not have the authority to demand that the appellant prove that he had met the CE requirements for 1994 when the appellant sought renewal for 1996. For 1996, the amendments were in force and required that Dr. Zenner prove that he had met the CE requirements for the preceding year, but not that he prove that he had met the requirements for the 1995 renewal. Webber J.A. understood that the respondent was attempting to enforce its previous demands, but found that those demands were not relevant to the 1996 renewal.
The appellant’s success on that point did not resolve the issue in his favour because he failed to prove that he had met the requirements for the 1996 licence: the appellant was required to demonstrate to the College’s satisfaction that he had met the CE requirements. Thus, Webber J.A. held that the College did not exercise its power arbitrarily or unreasonably. As for the 2001 decision, she held that the respondent correctly required the appellant to apply as if for initial licensing in 2001. The issue then was whether the respondent was entitled to impose all the conditions set out in its letter of November 26, 2001. While the trial judge did not state a standard of review for the 2001 decision, Webber J.A. decided that the reasonableness standard should be applied. She found that the respondent had authority to require that the courses and exams be taken, and that there was evidence upon which the trial judge could have found that the College’s interpretation of the legislation was reasonable. The appeal was dismissed.

V. Issues

This appeal raises the following issues:
(1) the appropriate standard of review of the College’s decisions; and
(2) whether the standard of review was correctly applied.

VI. Analysis

A. The Standard of Review

The first issue is the standard of review that should be applied to the College’s decisions? The analytical framework to answer this question was set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, and re‑stated in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19. The factors are: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (c) the purposes of the legislation and the provision in particular; and (d) the nature of the question.
On the first ground, the Act does not provide a statutory right of appeal except for disciplinary matters not applicable here, nor does it contain any privative clause. The absence of a privative clause (or a statutory appeal) does not necessarily imply a high standard of scrutiny, where other factors dictate a lower standard. The specialization of duties intended by the legislature may warrant deference notwithstanding the absence of a privative clause: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 29.
The analysis of the expertise of the tribunal has three dimensions. The court must: (i) characterize the expertise of the tribunal, (ii) consider its own expertise relative to the tribunal; and (iii) identify the issue relative to that expertise: Dr. Q, at para. 28. In dealing with licensing, the College will logically and necessarily be versed in matters relevant to licensing, including standards of practice, initial educational requirements and CE requirements. In none of these areas would the court ordinarily be expected to have expertise.
The purpose of the College is to regulate the practice of optometry in Prince Edward Island, to promote a high standard of care and to safeguard the public’s welfare. An important purpose of the College is to protect the public, in assessing qualifications of persons to practise optometry. A review of the Act and Regulations as a whole suggests that the College is to play an important role in setting standards and ensuring that the principles of the profession are upheld. This responsibility sets a higher level of deference.
In this specific case, it is the nature of the questions that will be largely determinative of the standard of review applicable. There are two different decisions subject to judicial review in this case: the 1996 decision and the 2001 decision. The nature of the first decision relates to the jurisdiction of the College, initially, to impose specific requirements of CE for the renewal of a licence and, second, to exercise the discretion not to renew the licence in 1996. The question in the 2001 decision relates, at the outset, to whether the College properly exercised its discretion in imposing conditions to the new licence application of the appellant and, second, to whether the conditions imposed were reasonable.
Generally, for the first three factors of the pragmatic and functional analysis, no specific factor warrants the lowest deferential standard but, on the other hand, the expertise of the College, the purpose of the provision and of the Act as a whole are not so specific as to favour the most deferential standard. The applicable standard of review will turn on the fourth criterion of the pragmatic and functional analysis, the nature of the question.
(1) The 1996 Decision

(1) The 1996 Decision

The appellant submitted that in 1996, the College did not have jurisdiction to require evidence of any CE. Even if the College had such jurisdiction, the appellant claims that it exercised this discretion in an arbitrary manner. Whether the College possessed this authority is a question of law, suggesting the least deferential standard of review, while the exercise of the discretion itself, within its jurisdiction, suggests a higher standard. The Supreme Court of Prince Edward Island, Appeal Division, was correct in concluding that the standard of review should be reasonableness.
(2) The 2001 Decision

(2) The 2001 Decision

In 2001, the College agreed to re-issue a licence to the appellant, but with specific conditions, namely, that he pass an ethics course and a jurisprudence exam. This decision of the College on both points was discretionary, pursuant to s. 15(7) of the Act, in that the College could impose any special terms and conditions it considered appropriate; the basis for determining whether the conditions are appropriate can be found in s. 12 of the Act.
This Court has held that it is no longer sufficient, in determining the standard of review, to slot a particular issue into a pigeonhole of judicial review (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and Dr. Q, at para. 25), and that it is not sufficient to merely identify a single error by the administrative decision maker. Therefore, the standard applicable to the College’s exercise of its discretion is not necessarily patent unreasonableness, as “the review for abuse of discretion may in principle range from correctness through unreasonableness to patent unreasonableness”: Dr. Q, at para. 24; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at para. 54, per Binnie J.; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 37.
The Supreme Court of Prince Edward Island, Appeal Division, had to determine if the conditions imposed were within the power of the College. Second, if they were, it then had to assess how the College’s discretion was exercised. The decision is intricately bound to many factual findings and inferences about the facts surrounding the new application of Dr. Zenner and the interests of the public and the profession. All this suggests that a higher degree of deference should be afforded to the College. This indicates that the standard of review of the 2001 decision should be reasonableness.

B. Was the Standard of Review Applied Correctly?

The remaining issue is whether the standard of review was applied correctly. It is on this point that the appellant succeeds or fails. Was the College unreasonable in requiring proof of CE for the 1996 renewal, in exercising its discretion not to renew his license, and in requiring the conditions for the 2001 application for an initial licence?
(1) The 1996 Decision

(1) The 1996 Decision

Prior to the amendments to the Regulations which came into force in mid-1995, the College required four hours of CE per year. It appears, however, that the College never actually required proof of CE before renewing the licences, as this was dealt with as a disciplinary matter. The appellant’s licence was thus renewed for 1995 without such proof. However, as of July 8, 1995, the amendments to the Regulations (s. 15(1) and (4)) required proof of 12 credit hours of CE in the preceding year or 36 hours in the three preceding years. It appears that some of the confusion resulted from the College’s requirement for the 1996 renewal of 12 hours of CE in the preceding year plus additional amounts for preceding years, which was invalid. The College was entitled to demand evidence that Dr. Zenner completed 12 hours of CE in 1995, but it was unreasonable to demand additional proof of CE for preceding years. The College, by imposing the 1994 requirement, was trying to retroactively enforce the CE requirements for a 1995 renewal. However, once Dr. Zenner received his licence for 1995, the College was entitled to require evidence of 12 hours of CE for 1995 for the renewal of his licence in 1996. Thus, Dr. Zenner was only obliged to provide proof of his 12 hours of CE in 1995.
This, however, does not affect the 1996 renewal in that the appellant did not prove that he met the requirement of 12 hours of CE in 1995. In these circumstances, did the College have jurisdiction to require this amount of CE for the 1996 renewal? Pursuant to s. 15(4) of the Regulations, effective mid-1995, the College could require proof of 12 hours of CE. Notwithstanding its error in requiring an additional amount, the appellant never complied with the valid requirement to submit evidence of CE. Under s. 13(2) of the Regulations and s. 15(4)(b) of the Act, the College had a discretion not to renew the licence for 1996 because the appellant had not complied with the requirement to provide proof of CE. The College did not exercise its discretion in an arbitrary manner. It sent numerous letters in 1995 to the appellant requiring him to submit evidence for CE in 1995. The appellant should have known that, even if he was right that under the old abrogated provisions of the Act that the College could not require proof of CE in 1994 for the renewal in 1995, the College could, under the new requirements, require proof of CE in 1995 for the renewal in 1996.
This is not a case where the licence was suspended without notice. The appellant knew what was required of him, the College had jurisdiction to make that requirement (i.e., the CE for the year preceding) for the 1996 renewal, and the appellant failed to oblige. The College was within its jurisdiction and could refuse the renewal. The decision was reasonable. The appellant argued that the decision was arbitrary, but he brought no valid argument in support of this allegation.
Because Dr. Zenner never applied to have his licence renewed in 1997, 1998, 1999 and 2000, he was unable to have his licence continued for 2001. Success on the 1996 renewal would be limited as his licence would, in the circumstances, here have been expired for more than two years. The 2001 decision is his only recourse for a new licence.
(2) The 2001 Decision

(2) The 2001 Decision

The 2001 conditions for a new licence were governed by the Act and provided that if the original licence had lapsed for a period of more than two years, which was not contested by the appellant, he had to apply as though applying for an initial licence, and the College could re-issue according to special terms and conditions (s. 15(7)).
The two impugned conditions, outlined in the College’s letter dated November 26, 2001, state:
3. You are required to complete an accredited optometric or medical ethics course, the curriculum of which is to be provided in advance to the College for approval.
4. You must challenge and pass the provincial jurisprudence exam set by the Prince Edward Island College of Optometrists.
In deciding whether the College properly exercised its discretion in imposing the conditions, the basis for doing so must initially be determined. Section 15(7) of the Act provides that the College may impose any special terms and conditions it considered appropriate. Those conditions cannot be outside the jurisdiction of the College, as set out in s. 12 of the Act. Given that s. 12 exhaustively outlines the conditions required of persons seeking to be licensed to practise for the first time, the purpose of s. 15(7), which allows “special terms and conditions” to be imposed for the re-issuance of licences, is to authorize the College to impose less stringent conditions on a previously licensed optometrist seeking the re-issuance of a licence. It follows that the College cannot impose conditions, pursuant to s. 15(7), that could not be required of applicants for a first licence.
There are several relevant sections in the Regulations. Section 18 provides that in assessing an application for a licence to practise, the College or the Registrar may seek and take into account detailed information from the applicant and from other persons or bodies concerning the applicant’s training, credentials and experience, including verification of course work, examination results, standing with another regulatory body or professional organization, circumstances of previous practice and the like. This section allows the College to take various factors into account in exercising its discretion under s. 15(7) of the Act. In imposing conditions before issuing a licence, the College may consider a host of factors, including past practice. The College may look to its past experiences with the applicant to determine conditions, if any, for issuing the licence. Those conditions must always remain within the jurisdiction of the College, and be imposed to fulfil the College’s purposes and ensure protection of the public.
There have been constant and various issues between the College and the appellant. The record identifies three specific problems. First, the appellant never agreed that the amendments to the Act and Regulations permitted the College to require evidence of CE. Second, the appellant was in violation of s. 18 of the Act by continuing to practise while his licence had expired, despite numerous letters from the College to that effect. Third, the appellant was reluctant to recognize the authority of the College, and he was seen by it to be unmanageable (Transcript of Proceedings before Campbell J., February 11, 2002 (reproduced in Appellant’s Record, Tab 18, at pp. 54-56)). It is obvious that it was reasonable for the College to impose some conditions on Dr. Zenner’s application.
(a) The Reasonableness of Condition 3

(a) The Reasonableness of Condition 3

In this case, all the paragraphs of s. 12(1) of the Act are prescribed by Regulation except s. 12(1)(b). Section 12(1)(a) and (b) may be the legal ground to provide for some type of “course” work, as required by condition 3. As for condition 4, for example, under s. 12(1)(d), a person seeking an original licence shall provide proof of knowledge and acceptance of prescribed standards of practice and ethical guidelines, as demonstrated in such a manner as may be prescribed. Compliance is subject to successful completion of an examination. For condition 3, the College could have prescribed and imposed a course of lectures in ethics. However, as correctly conceded by the respondent, no “optometric or medical ethics course” was, at the relevant time, accredited or offered by the College or prescribed in the Regulations pursuant to s. 12(1)(b). In those circumstances, the exercise of the College’s discretion in imposing completion of such a course as a condition was unreasonable. It follows that condition 3 is of no effect and is quashed.
(b) The Reasonableness of Condition 4

(b) The Reasonableness of Condition 4

As discussed above, the College imposed condition 4 requiring that Dr. Zenner pass a jurisprudence examination. Contrary to condition 3, the jurisprudence examination is provided for in s. 12(1)(d) of the Act, and prescribed in s. 5 of the Regulations. In accordance with s. 17 of the Regulations, which essentially provides that the College shall appoint an Examination Committee to set and administer the examination, this examination should demonstrate that Dr. Zenner had knowledge of the requirements under the Act directly applicable to the practice of optometry, and of prescribed standards of practice and ethical guidelines. Clearly, the College had jurisdiction to impose such a condition.
What remains is whether the College was reasonable in imposing the condition on the appellant. Section 18 of the Regulations permitted the College to consider the three specific problems outlined above. But were such factors serious enough to impose condition 4? In reviewing the exercise of discretion, a reviewing court should not re-weigh the facts of the administrative decision maker and the courts below: Suresh, at para. 37.
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence to the conclusion it reached. If any of the reasons used to support the conclusion are tenable in the sense that they can stand scrutiny, then the decision is not unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even though the reviewing court itself may not have reached the same conclusion: Ryan, at para. 55; see also Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 56 and 79.
The record shows that a jurisprudence exam is a normal requirement for the issuance of an initial optometry licence. The College was not singling out Dr. Zenner (Appellant’s Record, Tab 18, at pp. 97-98). Moreover, a jurisprudence examination demonstrates knowledge of the applicable laws and ethics. Consideration of a number of important factual circumstances supports the conclusion that the imposition of a jurisprudence examination was reasonable in this case: (1) the Act and Regulations had been amended while Dr. Zenner was practising in Ontario; (2) he had challenged the College’s interpretation of its jurisdiction in the past on the requirement of proof of CE; (3) he was investigated for having associated with Zellers Optometry, which was presumably something prohibited by the College (Appellant’s Record, Tab 18, at p. 97); (4) he continued to practise without a licence in 1996 and 1997 despite the warnings of the College and in breach of its ethical guidelines; (5) he had not practised full time in the province for many years; (6) as it is normal that applicants for an initial licence have to pass the jurisprudence examination, it shows the purpose of that requirement. While it appeared that the College could waive the latter requirement, it decided not to (Appellant’s Record, Tab 18, at p. 98). The College submits that had Dr. Zenner been knowledgeable of the applicable legislation, he would have known what was permitted and prohibited (Appellant’s Record, Tab 18, at pp. 96-97). The College could, pursuant to s. 18 of the Regulations, consider all the past experiences with the appellant in deciding which conditions to impose prior to the issuance of his licence. In imposing the conditions, the College was fulfilling its responsibility towards the public, while also respecting Dr. Zenner’s right to seek and obtain his licence following the successful completion of the jurisprudence examination.
As a result, the College properly exercised its discretion and was not unreasonable in requiring that Dr. Zenner take the examination.

VII. The Other Grounds of Appeal

The appellant also submitted that he relied on legal advice that assured him that he was within his rights not to file evidence of CE to the College in 1996 and, in addition, that the College was biased against him in 2001. These submissions were not accepted in the Supreme Court of Prince Edward Island, Appeal Division. We agree with the court’s disposition. There was no evidence or submissions indicating any error in that court’s assessment.

VIII. Conclusion

The appeal is allowed in part with costs awarded to the appellant. Condition 3 requiring that the appellant pass an ethics course is quashed. This matter is returned to the College with directions that it be resolved in a timely manner in accordance with its usual practice, which is apparently four to six months.

Cases cited

Statutes and regulations cited