By John Shevchuk, C. Arb, Barrister & Solicitor, Member, Appeal Committee
Appeal hearing Standard of Review
R egulation 5.52 of the Consolidated
Regulations of the Appraisal Institute
of Canada (the ‘Regulations’) is
entitled Standard of Review at Appeal Hearing.
Implicit in the title is the fact that hearings before
the Appeal Committee are not new hearings.
“A member appearing
before the Appeal
Committee needs to
appreciate that the
standard, there will often be no single right
answer to the question under review.
As noted earlier, reasonableness differs from
patent unreasonableness by the ‘immediacy or
obviousness of the defect.’ A patently unreason-
able decision is ‘clearly irrational’ or ‘evidently not
Regulation 5.52.6 confirms this: “An appeal hear- committee’s role is limited in accordance with reason’ – ‘so flawed that no
ing is not a hearing ‘de novo.’” In other words, the amount of curial deference can justify letting it
Appeal Committee simply reviews the decisions to a review process which stand.’ A decision may be unreasonable without
made by others – it does not adjudicate afresh. depends upon which of being patently unreasonable, when the defect
In the review process, the Appeal Committee in the decision is less obvious and might only be
is bound by three standards of review described the three standards of discovered after ‘significant searching or testing.’3
under Regulation 5.52: review apply.“ When the reasonableness standards apply, the
a. correctness; appellant must demonstrate how the evidence
b. unreasonableness; and cannot support the appealed decision.
c. patent unreasonableness. Committee concludes that, on the evidence or in The standard of review case law has moved
These standards are borrowed from the common the circumstances, the decision-maker could make on.4 The number of standards has been reduced
law as it existed prior to a recent Supreme Court the decision. from three to two (correctness and reasonableness),
of Canada decision.1 The standards of review Under the Regulations, correctness is the unless the rules of a tribunal dictate otherwise.
dictate the deference the Appeal Committee must default standard. Regulation 5.52.1 states: “In Since our Regulations dictate otherwise, the law
give to the decision-makers whose decisions are an appeal hearing, the standard of review to