HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Khawar Hanif Applicant
-and-
The College of Veterinarians of Ontario Respondent
DECISION
Adjudicator: Ruth Carey
Indexed as: Hanif v. College of Veterinarians of Ontario
APPEARANCES
Khawar Hanif, Applicant
Gerhard Pyper, Counsel
The College of Veterinarians of Ontario, Respondent
Bernard LeBlanc, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to membership in a vocational association because of race, colour, place of origin, and ethnic origin.
2The applicant self-identifies as a Pakistani Muslim immigrant. As a veterinarian he is subject to regulatory oversight by the respondent under the Veterinarians Act, R.S.O. 1990, c. V.3. For several years he has been involved in on-going discipline proceedings before the respondent’s Discipline Committee. The primary allegations of the applicant are that he is a victim of selective prosecution because of his personal characteristics; and the respondent is wrongfully preventing him from raising discrimination as an issue during the course of the discipline proceedings.
3On December 14, 2012, the Registrar issued a Notice of Intent to Dismiss (“NOID”) the Application as it appeared to be outside the Tribunal’s jurisdiction because:
a respondent is an individual who appears to be the lawyer for another party in another legal proceeding. The HRTO has stated that the relationship between a lawyer and an opposing party is not covered by the Code: Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390.
a respondent is Crown Counsel or Crown Attorney. The HRTO has found that, in light of the principle of prosecutorial immunity, it has no jurisdiction in most cases to hear applications against Crown Attorneys or Crown Counsel: see Oliphant v. Ontario (Attorney General), 2009 HRTO 1902; S.M. v. Ontario (Community Safety and Correctional Services), 2010 HRTO 1705.
a respondent is an arbitrator, adjudicator or judge. The HRTO has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: see Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180.
a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s).
4The applicant retained counsel and on February 11, 2013, filed notice of intent to dismiss against counsel for the respondent who was originally named as a personal respondent. At the same time he provided submissions to identify the specific allegations of discrimination in the Application, which I would summarise as follows:
During the course of the litigation before the respondent’s Discipline Committee, the respondent overtly discriminated against the applicant through the actions of its counsel, and in the rulings it made concerning the issues before it. The applicant’s submissions of February 11, 2013, take particular issue with how the respondent dealt with a guilty finding involving the flea medication on appeal and following.
The respondent practices selective prosecution in that Caucasian veterinarians who have committed similar or more serious breaches of their professional obligations have not been subject to the vigorous prosecution that the applicant has experienced.
5Based on the applicant’s submissions of February 11, 2013, the Tribunal did not dismiss the Application based on the NOID. Instead, the Tribunal noted that the applicant’s submissions failed to address the issue of adjudicative immunity. By Case Assessment Direction (“CAD”) dated February 22, 2013, the Tribunal scheduled the Application for a summary hearing. The CAD said the questions to be addressed during the summary hearing were:
Does the doctrine of adjudicative immunity apply to the actions of the respondent placing them beyond the jurisdiction of the Tribunal?; and
Otherwise, is there a reasonable prospect of success; meaning, is there “likely to be sufficient direct or indirect evidence available to connect any unfair treatment” the applicant experienced with his race, colour, place of origin, or ethnic origin?
6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.
7Details about the nature of a summary hearing were described as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
8The issues considered at the summary hearing for this Application involve the first type of analysis described above.
9The summary hearing took place by teleconference on May 28, 2013.
PROCEDURAL ISSUES
10Having reviewed the Application and the materials filed by the parties prior to the summary hearing, it seemed to me that it was possible that in addition to the doctrine of adjudicative immunity, the doctrine of collateral attack might be relevant. So at the beginning of the summary hearing, I asked the parties if they were prepared to address that issue during the hearing or needed additional time to prepare. In response to my question, the parties both indicated that they were ready to make submissions during the summary hearing regarding the issue of collateral attack. The hearing proceeded on that basis.
11I also noted that the Application refers several times to the applicant’s religious beliefs but creed was not one of the grounds selected. The parties agreed that for the purposes of the summary hearing, creed would be included as an additional ground.
12Through inadvertence, the respondent’s book of authorities was not received by the Tribunal until the morning of the summary hearing. The applicant did not object to the late filing so I have considered those authorities in reaching this Decision. The applicant filed four volumes of evidentiary material but no authorities. However, during the course of the hearing the applicant relied on two cases that originated in British Columbia. The respondent did not object to his doing so and offered some submissions concerning those authorities. As a result, I consider those cases as being properly before the Tribunal for the purposes of the summary hearing and refer to them below.
FACTUAL BACKGROUND
13In 2006 the respondent received complaints about the applicant from two people whose pets had been treated by the applicant. Those complaints were considered by the respondent’s Complaints Committee. The functions of the Complaints Committee include investigating complaints and where appropriate, referring allegations of professional misconduct to the respondent’s Discipline Committee for a hearing.
14In 2007 the Complaints Committee referred the complaints to the Discipline Committee for a hearing pursuant to subsection 24(2) of the Veterinarians Act. The hearing before the Discipline Committee was a lengthy one. After approximately 11 days of hearing the Discipline Committee issued its decisions on March 24, 2010. All of the allegations of misconduct against the applicant were dismissed save one. He was found guilty of misconduct for having prescribed a flea medication to a cat that is intended only for dogs.
15The respondent then appealed the decisions of its Discipline Committee to the Divisional Court pursuant to section 35 of the Veterinarians Act. The applicant did not cross-appeal with respect to the one finding of misconduct concerning the flea medication. On February 28, 2011, the Divisional Court granted the respondent’s appeal on the basis that the reasons of the Discipline Committee were inadequate and ordered that a different panel re-hear the complaints in question. (See College of Veterinarians of Ontario v. Hanif, [2011] O.J. No. 890.) The applicant then unsuccessfully sought leave to appeal the Divisional Court’s decision to the Court of Appeal. He also filed an Application with this Tribunal concerning the way the respondent dealt with the complaints against him. In 2011 HRTO 1916, the Tribunal dismissed that Application on the basis that it had been filed more than one year after the events complained of and the applicant had not shown a good faith reason for the delay. The applicant sought reconsideration of that decision which was refused, 2011 HRTO 2277.
16After the Court proceedings concluded a new panel of the Discipline Committee was constituted which proceeded to re-hear the complaints that were the subject of the successful appeal. After 13 more days of hearing, the Discipline Committee completed the re-hearing and its decision is pending. The current Application before the Tribunal contains allegations about the respondent’s decision to appeal to Divisional Court, its implementation of the Divisional Court`s decision, and events that occurred during the re-hearing before the Discipline Committee.
ANALYSIS
The Doctrines of Adjudicative Immunity and Collateral Attack
17There are a significant number of decisions from the Tribunal that support the proposition that the decisions and actions of an adjudicator exercising his or her adjudicative functions are beyond the jurisdiction of the Tribunal because of the doctrine of adjudicative immunity. Examples of those cases were referred to in the Registrar’s NOID quoted above, and in the CAD directing the summary hearing before me.
18The principle these cases stand for is that although an adjudicative body like the Discipline Committee provides services within the meaning of section 1 of the Code, not all of its actions can be the subject of an application to the Tribunal. Decisions and actions of an adjudicator exercising his or her adjudicative function are beyond the jurisdiction of the Tribunal because of the doctrines of adjudicative immunity and collateral attack and the application of s. 23(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, as amended. But decisions and actions of an adjudicative body not related to the adjudicative function may be within the jurisdiction of the Tribunal. The Tribunal explained the difference between these two types of decisions in Hazel, above, at paras. 72-74, as follows:
The “service” is the dispute resolution process. Where an individual has a dispute, and pursuant to a statute or contract, that dispute may be referred to dispute resolution, the process is a service within the meaning of the Code. The requirement in section 1 of the Code is that every person should have a right of equal access to the dispute resolution process, and be able to participate in an effective, meaningful way, without discrimination and regardless of a proscribed ground.
In relation to disability, the obligation placed on the service provider may include, for example, the requirement to provide an accessible built environment or a hearing or mediation facility which is physically accessible, subject to the defence of undue hardship. The right to equality in the provision of services may also mean accommodation in the way materials (including decisions) are provided, and the proceeding is conducted, so as to enable a party, counsel or witness to effectively participate in the hearing or mediation process.
The right under section 1 to equal treatment in the provision of services relates to access to the decision-making or mediation process, not the outcome. An arbitrator does not discriminate on the basis of age in the provision of services under the Code because she upholds a mandatory retirement clause. A mediator does not discriminate on the basis of disability in the provision of services because a settlement provides that the grievor will attend an IME. No claim lies against Arbitrator Kaplan under section 1 on the basis that the settlement agreement is alleged to be contrary to the Code. A claim against an arbitrator or mediator which alleges the outcome in a decision or settlement is contrary to, or not in accordance with the Code, is not a claim that falls within the scope of section 1, and is not a claim over which the Tribunal has jurisdiction.
19The concept of adjudicative immunity is an extension of the common law doctrine of judicial immunity. In Taucar v. University of Western Ontario, 2013 HRTO 597, the Tribunal summarised its purpose at para. 37 as follows:
The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences… judicial immunity is necessary to protect the public’s interest in a fair, impartial and independent justice system and also promotes the finality of legal proceedings.
20The second stated purpose, namely promoting the finality of legal proceedings, is why I invited submissions on the question of collateral attack as it is also one of the purposes of that doctrine. A collateral attack is an attack on the validity or rightness of an adjudicative ruling or decision made within a proceeding other than a direct appeal or judicial review. During the summary hearing, the applicant argued that this Application cannot be characterised as a collateral attack, because the context is a proceeding before the Discipline Committee where the applicant is defending himself, not attacking. The nature of the other proceeding is not relevant to the doctrine of collateral attack; the question is whether or not this Application necessarily requires the Tribunal to review decisions and rulings of the Discipline Committee that could be the subject of appeal or judicial review.
21During the course of the summary hearing the applicant detailed a number of admissibility rulings of the Disciplinary Committee that he objects to. For example, he complained that he was not permitted to call Heather Pendragon to testify. She is involved as a witness in proceedings before the British Columbia Human Rights Tribunal between a number of veterinarians described as being of Indo-Canadian origin and the British Columbia Veterinary Medical Association. Those proceedings and her involvement as a witness in those proceedings are described in Bajwa v. British Columbia Veterinary Medical Association, 2010 BCSC 848, rev’d 2011 BCCA 265, leave to appeal den’d 2012 CanLII 8364 (SCC), at paras. 51-55 as follows:
The Complainants say that professional complaints against them, which are often without merit, are vigorously investigated in a way that similar, or even more serious, complaints against non-Indo-Canadian veterinarians are not. They say that an equal and reasonable level of procedural fairness is being denied to the Indo-Canadian low-cost veterinarians during the licence application, the complaint process, and at the hearing of the complaints. Warnings or sanctions meted out to Indo-Canadian veterinarians are disproportionate to what is given to veterinarians who are not Indo-Canadian.
The Complaint also makes the following allegation (at para 18):
Dr. Rob Ashburner, himself, Chair of the BCVMA Conduct Review Committee, the committee that decides which professional veterinary complaints may proceed to hearing has, in an undercover videotaped conversation with a client, complained, in reference to the Indo-Canadian low-cost clinic veterinarians, about “that particular ethnic origin coming here and causing problems” and, in the same conversation, ruefully laments, in reference to how to deal with the “problem” of the Indo-Canadian low-cost clinics, “gone are the days when we could go there with a torch and burn it down, a quicker way.”
It appears that the alleged conversation with Dr. Ashburner was surreptitiously taped by Heather Pendragon, a supporter of the Indo-Canadian veterinarians. In the present case, counsel for the BCVMA submits that there is no “proof” of that conversation. However, the Complainants say that documentary evidence, including an official transcript and DVD, proves that Dr. Ashburner made those statements.
Under the heading, “Biased and Unfair Disciplinary Hearings” in the Second Further Amended Complaint, the following allegation is made (at para 23):
Despite their jurisdiction to do so, these improperly appointed panels are refusing to properly consider arguments pertaining to bias and discrimination against the Complainants despite strong evidence of bias and racism against them including, but not limited to, videotaped racist statements by the Chair of the BCVMA Conduct Review Committee, the actual committee that decides which complaints should proceed to hearing, that confirms the Complainants are being specifically targeted by the BCVMA as “that particular ethnic coming here and causing problems.”
The Complaint contains many examples of alleged unfair treatment of and retaliation against Indo-Canadian veterinarians. The Complainants also allege that the BCVMA has been discriminating against them by unfairly and unequally targeting many of them through the Association’s disciplinary process.
22The applicant takes the position that the respondent is guilty of the same conduct as the British Columbia Veterinary Medical Association. He sought to call Ms Pendragon as a witness before the respondent’s Discipline Committee because in the recorded conversation she had with Dr. Ashburner, he allegedly made reference to Ontario. The Discipline Committee declined to hear the proposed evidence.
23During the summary hearing the applicant also drew my attention to other alleged admissibility rulings of the Disciplinary Committee: it decided not to review the reasons of the Divisional Court in College of Veterinarians of Ontario v. Hanif, above, as part of the re-hearing; it refused to hear some proposed witnesses; and it declined to hear some evidence.
24All of the Discipline Committee’s rulings on admissibility that the applicant complains of are examples of it exercising its adjudicative function. Essentially, the applicant argues that despite this, the Tribunal should not apply the doctrine of adjudicative immunity because to do so would produce an injustice.
25Counsel for the applicant argued that although the applicant has a right of appeal from the Discipline Committee on questions of law or fact or both pursuant to section 35 of the Veterinarians Act, relying on a future appeal would not resolve the applicant’s dilemma. His dilemma is that the Discipline Committee’s rulings on admissibility are preventing him from leading the evidence of discrimination he wishes to lead. He relies on Bajwa, above, and Bhullar v. British Columbia Veterinary Medical Association, 2011 BCSC 182, rev’d 2012 BCCA 443, leave den’d 2013 CanLII 25239 (SCC), for the proposition that the applicant should be permitted to pursue the issue of discrimination before the Tribunal because he is being prevented from doing so at the Discipline Committee through its admissibility and evidentiary rulings.
26The difficulty with this argument is that cases from the British Columbia Court of Appeal relied on do not support the proposition that the applicant advances. In both of those cases, Indo-Canadian veterinarians had appeared before the British Columbia Veterinary Medical Association and attempted to raise issues of institutional bias in the context of disciplinary proceedings where the institutional bias alleged was systemic discrimination on the basis of ethnic origin. The discipline committee in those cases ruled it did not have the jurisdiction to consider the issue of institutional bias. That is not the case here with respect to the proceedings before the respondent’s Discipline Committee, but even if it was, that issue could be addressed adequately through appeal as was the case in British Columbia. The Court of Appeal in Bajwa, above, relying in part on the Supreme Court of Canada’s decision in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, ruled that the British Columbia Veterinary Medical Association’s discipline committee did have the jurisdiction to consider the claims of institutional bias.
27The important point here is that although the British Columbia Court of Appeal found the discipline committee erred by refusing to hear claims of institutional bias, it denied the applications for judicial review and refused to remit them back to the discipline committee for re-hearing. This was because there is an on-going parallel proceeding involving the same allegations before the British Columbia Human Rights Tribunal. That proceeding was well under way at the time of the Court’s ruling and eventually required over 200 days of hearing. The Court of Appeal ruled that granting the relief sought and ordering the discipline committee to hear the same evidence and arguments would result in an unnecessary duplication of resources and constitute an abuse of process. This is the exact opposite result that the applicant wishes to achieve here; the applicant wants duplication – he wants an additional hearing before the Tribunal to hear evidence of discrimination in addition to the one he has already had before the Discipline Committee.
28The applicant offered no additional rationale during the summary hearing as to why the Tribunal should depart from the significant line of cases that stand for the proposition that the decisions and actions of adjudicators taken while performing an adjudicative function are beyond the jurisdiction of the Tribunal.
29Given all of the above, I am satisfied that there is no reasonable prospect of success with respect to the allegations in the Application that concern the decisions and actions of the Discipline Committee made during the course of the re-hearing of the complaints involving the applicant.
The Actions of the Respondent regarding the Flea Medication Finding
30As stated above, the initial panel of the Discipline Committee dismissed all of the complaints about the applicant except for the adverse finding regarding the flea medication that was prescribed inappropriately. The respondent appealed the Discipline Committee’s decision to dismiss the other complaints of misconduct. The applicant did not cross-appeal the adverse finding with respect to the flea medication. The primary ground for the appeal was the adequacy of reasons of the Discipline Committee.
31The applicant believes that if the reasons of the Discipline Committee were inadequate, then the respondent should have appealed all of its decision to the Divisional Court. He argues that the decision of the respondent not to appeal the adverse finding of misconduct against the applicant to the Divisional Court is evidence of discrimination. His written submissions of February 11, 2013, also claim:
[The applicant] submits:
Despite the court’s ruling, the [respondent] attempted to underhandedly treat [the applicant] differently than Caucasian veterinarians by engaging in the following acts:
a. In January 2012 counsel for the [respondent] told [the applicant] the [respondent] was no longer concerned with the ‘Advantage flee [sic] medication’ charges.
b. In January 2013 – after the second round of disciplinary hearings was concluded – counsel for the [respondent] told the Hearing Panel the [respondent] wished to retain the previous guilty charge on the ‘Advantage flee [sic] medication’ charges. The [respondent]’s change of position came only after [the applicant] was lulled into not providing submissions to defend against the ‘Advantage flee [sic] medication’ charges.
32The respondent takes the position that it is not possible for the respondent to appeal to the Divisional Court findings that favour its position. While strictly speaking the Veterinarians Act does not limit a party’s right of appeal to adverse findings, I agree it would be an extraordinary act given the purpose of an appeal is to achieve a different result. The respondent’s position before the first panel of the Discipline Committee was that the incident regarding the flea medication constituted misconduct. The Discipline Committee agreed, so the respondent achieved the result it wanted. It did not subsequently change its opinion that the applicant committed misconduct when he prescribed the flea medication so it had no reason to appeal. The respondent’s actions in this regard do not constitute differential treatment towards the applicant or otherwise support a finding of discrimination under the Code.
33With respect to the allegations in the applicant’s February 11, 2013 submission quoted above, the respondent’s actions cannot be construed to be differential or adverse treatment on a prohibited ground under the Code. By January of 2012 it was true the respondent was no longer concerned with the flea medication issue. That is because the finding of misconduct was final as it had never been appealed; similarly, the panel had rendered its decision on penalty and that decision was never appealed so it was also final. Because those decisions were final, in January of 2013, the flea medication issue was not before the panel on the re-hearing. Therefore, no submissions concerning it would have been relevant to the issues before the Discipline Committee.
34Based on the above, I find that the allegations of discrimination concerning the decisions of the respondent and how it behaved with respect to the finding of misconduct relating to the flea medication on the appeal to Divisional Court and afterwards have no reasonable prospect of success.
The Selective Prosecution Allegations
35The Application as originally filed contains statements of alleged fact in the nature of prosecutorial misconduct on the part of the respondent’s counsel. The NOID put the applicant on notice that those allegations may be beyond the Tribunal’s jurisdiction based on the principle of prosecutorial immunity or on the basis that the relationship between a lawyer and an opposing party is not covered by the Code. The applicant then withdrew the Application as against the respondent’s counsel who was personally named as a party. He also filed a written submission in response to the NOID that did not contain any allegations of personal wrongdoing on the part of the respondent’s counsel.
36During the course of the summary hearing, counsel for the applicant conceded respondent’s counsel was probably protected by prosecutorial immunity and that was why he had recommended to the applicant that the Application as against him be withdrawn. But he also stated that respondent’s counsel was acting as an extension of the respondent and the respondent was not protected. I took this to mean that the applicant was not withdrawing the allegations about the choices and actions of the respondent with respect to the litigation before the Discipline Committee on the re-hearing.
37That being said, the allegations in the Application, as clarified in the submissions of February 11, 2013, are all in support of the proposition that the respondent’s Complaints Committee’s referral of the complaints about the applicant to the Discipline Committee constitutes discrimination in the nature of selective prosecution.
38With respect to the issue of discrimination in the form of selective prosecution, the applicant’s submissions of February 11, 2013, are helpful in understanding the specific allegations. They state:
[The applicant] submits:
a. The practices and processes utilized by the CVO in investigating complaints against its registrants invite prejudice, stereotyping and bias; …
The Complaints Committee has complete discretion whether a complaint should be forwarded to the Hearing Panel. Under the current process the Complaints Committee is aware of the subject registrant’s identity. This process can detract from focusing on the merits of the complaint and lend itself to prejudice, bias and stereotypes that certain races or cultures are less professional, less competent and/or less compassionate than Caucasians.
[The applicant] submits numerical date will prove the Complaints Committee forwards a disproportionate number of complaints against racialized registrants to the Hearing Panel.
In [the applicant]’s own case, the [respondent] published case studies evidencing the Complaints Committee dismissed complaints against Caucasian registrants which were nearly identical to those brought against [the applicant]. However, in [the applicant]’s case, the Complaints Committee directed the complaints against him to be sent to the Hearing Panel.
39The respondent submits that there is no numerical data that supports the proposition that the Complaints Committee forwards a disproportionate number of complaints involving racialized veterinarians to the Discipline Committee and none was provided by the applicant. It also disputes that the applicant can point to any evidence in support of the proposition that the Complaints Committee dismissed similar complaints to those against the applicant when levied against Caucasian veterinarians. It is not necessary or appropriate for the purpose of this summary hearing for me to address these conflicts between the parties as to what the evidence might be.
40The respondent takes the position that when the Complaints Committee refers complaints to a hearing of the Discipline Committee it is performing an adjudicative act or function and therefore adjudicative immunity applies. In the alternative, the respondent argues the referral to the Discipline Committee is merely part of the overall adjudicative process at the Discipline Committee and subsumed in its process which is clearly adjudicative. Unfortunately, at the summary hearing the applicant offered no argument in response to those submissions by the respondent. Absent submissions on this question from the applicant, I am not prepared to find that when the Complaints Committee refers complaints to a hearing it is performing an adjudicative function. I say this because it would appear to me from the Veterinarians Act that an argument could be made that the Complaints Committee’s function is merely investigative when referrals are made to a hearing, and I have insufficient information on which to find that the process is subsumed in the adjudicative functions of the Discipline Committee.
41However, the respondent also takes the further alternative position that the issue has already been addressed. Paragraph 16 of its written submissions points out that the actions of the Complaints Committee were included in the applicant’s previous Application to the Tribunal. In 2011 HRTO 1916, the Tribunal stated at paras. 8-11:
In his Application, he alleges that the COV instituted disciplinary proceedings against him because of his race, colour, ethnicity and creed. He also alleges that the conduct of the COV in the disciplinary proceedings was discriminatory.
Two complaints were filed against Dr. Hanif in 2006. The complaints were referred to a discipline committee of the COV in 2007. The discipline committee issued its decisions on the complaints on March 24, 2010. The CVO appealed those decisions. The Divisional Court issued its decision on February 28, 2011, allowing the judicial review application (College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155). Dr. Hanif filed a leave to appeal to the Ontario Court of Appeal on June 29, 2011, and leave to appeal was dismissed on September 12, 2011. On September 23, 2011, the CVO wrote to Dr. Hanif to set up a new disciplinary hearing in accordance with the direction of the court.
In his Application, the applicant has itemized a series of concerns about the actions of the CVO, relating to its conduct of the investigation and subsequent disciplinary proceedings. That disciplinary process was completed on or before March 24, 2010 (the date the decisions were issued). The applicant submits that the litigation he is involved in with the COV is discriminatory, making the discrimination ongoing and therefore timely.
The ongoing litigation is the result of a court decision and cannot be regarded as continued discrimination by the COV. The COV is scheduling a new hearing as a result of the decision of the court. The applicant has not provided any additional allegations of discrimination. Therefore, I find the date of the disciplinary decision to be the last possible incident of alleged discrimination. As such, the applicant is approximately 16 months late in filing his Application.
42The Tribunal then dismissed the Application for delay. As noted above reconsideration was subsequently denied.
43Re-litigation of the same issue based on the same facts is usually considered by the Tribunal to constitute an abuse of process unless it would create an injustice not to permit it. See for example: Snow v. Honda of Canada Manufacturing, 2007 HRTO 45; and Matthews v. Chrysler Canada Inc., 2013 HRTO 225.
44I have no doubt that the applicant genuinely believes it would constitute an injustice for the Tribunal to refuse to permit re-litigation. From an objective viewpoint however, the inescapable facts are that: the allegations with respect to the referral by the Complaints Committee to a hearing were dismissed as out of time in a prior Application to the Tribunal and the applicant chose not to judicially review that Decision; the Discipline Committee has the jurisdiction to hear arguments under the Code about the complaints before it; the applicant has attempted to make Code arguments before the Discipline Committee; if the applicant is ultimately unsatisfied with the Discipline Committee’s decision, he has an unfettered right of appeal. In these circumstances, prohibiting re-litigation as an abuse of process does not objectively constitute an injustice.
45The period not addressed in the previous Application is the period during which the Discipline Committee proceeded to re-hear the complaints of misconduct that were successfully appealed by the respondent.
46The applicant’s submission of February 11, 2013, is limited with respect to incidents or allegations during this period. It states that the “latest discriminatory acts” of the respondent occurred in January 2012 and January 2013 “when the [respondent] – contrary to court order – dishonestly divided the second round of disciplinary hearings into two parts to 1) maintain previous guilty charges that had been sent for rehearing and 2) retry charges that had previously been dismissed.” This is a reference to the Divisional Court’s decision in response to the respondent’s appeal of the first decision of the Disciplinary Committee. For the reasons stated above in paras. 30-34, the respondent’s actions in appealing to the Divisional Court the findings it disagreed with, while not appealing those it did agree with, cannot be considered to be discrimination under the Code. The statement that the respondent somehow contravened the Divisional Court’s order is simply not true. The Divisional Court ordered the complaints that were the subject of the appeal to be re-heard by the Discipline Committee. It did not order a re-hearing of the finding of misconduct with respect to the flea medication, nor could it have done so, as that issue was never before it due to the applicant’s failure to appeal the one adverse finding against him.
47The rest of the incidents referred to during the summary hearing and in the Application as originally filed for the period after the appeal to Divisional Court involve the applicant’s struggle to raise issues and lead evidence before the Discipline Committee on the re-hearing. For all of the reasons stated above, those incidents are beyond the jurisdiction of the Tribunal because of the doctrines of adjudicative immunity and collateral attack and the application of s. 23(1) of the Statutory Powers Procedure Act.
48Given all of the above, I am satisfied that there is no reasonable prospect of success with respect to this Application.
DECISION
49The Application is dismissed.
Dated at Toronto, this 26^th^ day of August, 2013.
“Signed by”
Ruth Carey
Member