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Appeal - Standard of Review - Expertise. Kitmitto v. Ontario (Securities Commission)
In Kitmitto v. Ontario (Securities Commission) (Div Court, 2024) the Divisional Court considers (and dismissed) related appeals from two Capital Markets Tribunal (CMT) decisions, one respecting 'merits' and one respecting 'sanctions' [under Securities Act (SA), s.10(1)], here addressing SA 76 "which prohibits insider trading and tipping" ['Part XVIII - Continuous Disclosure ' ('Trading where undisclosed change' and 'Tipping')].
Here the court considers the role of a tribunal's expertise, as it feeds into the deference to be accorded it by an appeal court:[29] While an appellate court is empowered to replace a tribunal’s findings on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute are to be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31; Vavilov, at para. 36. . Essex (County of) v. Enbridge Gas Inc.
In Essex (County of) v. Enbridge Gas Inc. (Div Court, 2023) the Divisional Court considered an appeal from the decision of the OEB where it had "found that the pre-existing 1957 [SS: natural gas] franchise agreement between Essex and Enbridge had expired by operation of the common law rule against perpetuities" and ordered it's renewal under the Municipal Franchises Act (MFA).
In this quote the court considers the role of the OEB's 'expertise' as an appellate SOR issue:[30] While the court is empowered to replace a tribunal’s opinion on questions of law with its own, the correctness standard does not detract from the need to respect the tribunal’s specialized function. The tribunal’s subject matter experience and expertise relating to the requirements of its home statute should be taken into account: Reisher v. Westdale Properties, 2023 ONSC 1817 (Div. Ct.), at paras. 9-10, citing Planet Energy (Ontario) Corp. v. Ontario Energy Board, 2020 ONSC 598 (Div. Ct.), at para. 31, in which the court stated as follows:While the Court will ultimately review the interpretation of the [Ontario Energy Board] Act on a standard of correctness, respect for the specialized function of the [Ontario Energy] Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). . Reisher v. Westdale Properties [for numbered case cites see main link]
In Reisher v. Westdale Properties (Div Court, 2023) the Divisional Court endorses deferring to a tribunal's expertise even under an appeal correctness standard (here in an RTA appeal):[10] The correctness standard does not detract from the need to respect a tribunal’s specialized function. The expertise and familiarity of the Landlord and Tenant Board with the requirements of the Residential Tenancies Act is to be taken into account:While the Court will ultimately review the interpretation of the Act on a standard of correctness, respect for the specialized function of the Board still remains important. One of the important messages in Vavilov is the need for the courts to respect the institutional design chosen by the Legislature when it has established an administrative tribunal (at para. 36). In the present case, the Court would be greatly assisted with its interpretive task if it had the assistance of the Board’s interpretation respecting the words of the Act, the general scheme of the Act and the policy objectives behind the provision.[8]
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