Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

1, chemin Stone Ouest Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Ken Allan v. Director

Allan v. Director 2011 ONAFRAAT 26

STATUTE: Livestock Medicines Act

HEARING: March 31, 2011

DATE OF DECISION: July 15, 2011

2011-26

NEUTRAL CITATION: 2011 ONAFRAAT 26

IN THE MATTER OF THE LIVESTOCK MEDICINES ACT, R.S.O.1990, CHAPTER L.23 AND ONTARIO REGULATION 730 UNDER THE ACT.

AND IN THE MATTER OF: An Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Ken Allan, of Perth, Ontario, under Section 9(1) of the Livestock Medicines Act from a decision of the Director under the Act, dated July 8, 2010, (reasons dated December 7, 2010) in which the Director revoked the Class 1 Licence issued to Ken Allan.

Before: Susan Whelan, Vice-Chair; Marthanne Robson, Vice-Chair; Bill Schaefer, Member

Appearances: Ken Allan, appellant Mike Wicklum, counsel for appellant Dr. Stephen Scott, witness for appellant James Beere, witness for appellant John Benedetti, representing the respondent – Ministry of Agriculture, Food and Rural Affairs Carolyn Cross, witness for respondent Craig Richardson, witness for respondent Dr. Steve Palmer, witness for respondent

DECISION OF THE TRIBUNAL

Overview

Dr. Ken Allan, of Perth, Ontario, was a licensed practising veterinarian from 1963 until September 19, 2009. In early January 2010, he applied for a Class 1 Licence under the Livestock Medicines Act (the Act) and was issued a licence on January 8, 2010. On May 14, 2010, the Director appointed under the Act issued a letter to Dr. Allan provisionally suspending his Class 1 Licence and advising that a hearing would be scheduled to determine whether his licence would be further suspended or revoked. On July 7, 2010, the Director appointed under the Act held a hearing to consider whether to further suspend or revoke Dr. Allan’s licence. Dr. Allan did not attend the hearing and the Director found in the absence of any evidence to the contrary that:

1. Dr. Allan sold livestock medicines other than from his place of business, delivered livestock medicines without a prior invoice and failed to properly refrigerate medicines which required refrigeration. (Clauses 6(1)(b), (e) and (f) of Regulation 730.

2. Dr. Allan did not store livestock medicines at the proper temperatures prescribed for them by the manufacturer. (subsection 7(2) of Regulation 730.)

3. Dr. Allan obstructed inspectors in the performance of their duties on May 10, May 14, June 10 and June 25, 2010, contrary to subsection 3 (10) of the Livestock Medicines Act.

4. Dr. Allan exposed for sale and had in possession for sale a drug, other than a livestock medicine, at his established place of business on March 19, 2010.

The Director found that the contraventions warranted the revocation of the licence issued to Dr. Allan and Dr. Allan’s licence was subsequently revoked. In addition, the Director ordered that in accordance with subsection 12(c) of Regulation 730, any livestock medicines in the possession of Dr. Ken Allan be removed and disposed of under the supervision of an inspector in a manner satisfactory to a director appointed under the Act.

Dr. Ken Allan appealed to the Tribunal, under Section 9(1) of the Livestock Medicines Act from the decision of the Director under the Act, dated July 8, 2010, (reasons dated December 7, 2010).

The issues the Tribunal must consider are:

1. Did Dr. Allan sell livestock medicines in contravention of the Act?

2. Did Dr. Allan leave the licensing system prior to receiving the letter revoking his licence?

3. Should the livestock medicines and other property seized by the Ministry be returned to him?

The Tribunal heard the evidence and arguments over two days, March 30th and March 31st, 2011, as a trial de novo in Perth, Ontario. The Tribunal has the right to make any decision that the Director could make.

Evidence

Mr. Craig Richardson testified he has been employed by the Ministry of Agriculture, Food and Rural Affairs (the Ministry) for 21 years; initially as an inspector, presently as an animal care specialist, and his authority comes from his appointment under the Livestock Medicines Act.

He stated he conducted 303 inspections in 2010, 260 in 2009, and approximately 200 in 2008. He conducts inspections to make sure that individuals licensed under the Act are in compliance and he assists them to achieve compliance.

He explained in order to sell livestock medicines in Ontario, a licensee must have a fixed location, for example, their home, office or farm. A licensee cannot sell out of a vehicle without a prior sales order and properly prepared invoice since the Act does not allow “peddling”. Mr. Richardson stated a licensee should only have properly invoiced medicines in their vehicle and should not be carrying extra product. Licensees under the Act must keep proper records which include the name of the purchaser, address, date and total of sales of each livestock medicine and its quantity.

He testified that he has authority under the Act to inspect a dwelling or place of business. Drugs not designated under the Act should not be offered for sale and should not be in the fixed location of a licensee. The medicines authorized under the Act are over-the-counter medicines (OTC), and they do not require a veterinarian or pharmacist to dispense them. The medicines on the designated list in the Regulation include the following groups of drugs – vaccines and steroids, antibiotics, vitamins and minerals, and miscellaneous products. Mr. Richardson testified all of this information is available in the Act, the Standards of Compliance Manual (Compliance Manual) and on the Ministry’s website.

Mr. Richardson also explained he attends places and events where people without a licence may try to sell livestock medicines. Under the Act he is allowed to conduct unannounced inspections of places to ensure designated livestock medicines are being sold in compliance with the requirements of the Act.

As part of the application process, Mr. Richardson stated he meets with licence applicants and reviews the fixed location to ensure that it meets the criteria set out in the Act. He also reviews the Act and the Compliance Manual with the applicant including the rules for advertising, invoicing, and the storage of products at the manufacturers recommended conditions. For example, if a licensee is going to sell products that require refrigeration then they will need to have the proper facility. He also explained that one could drive up to a licensee’s fixed location, like Dr. Allan’s home, and purchase livestock medicines.

Mr. Richardson testified he often attended at Hoard’s Station Sales Barn in Northumberland County. In November of 2008, he went to Hoard’s Station after being told someone was selling livestock medicines out of their vehicle in the parking lot. He said he looked through the windows of vehicles parked on the lot and came across a white Dodge pick up truck with a livestock box on the back and medicines inside the truck. Dr. Allan approached the vehicle and identified himself as a veterinarian from Perth, Ontario. Mr. Richardson stated that licensed veterinarians do not require a licence under the Act to sell livestock medicines and acknowledged that he had no jurisdiction over Dr. Allan at that time. However, when asked under questioning whether he was aware that veterinarians could sell medicines at a sales barn, Mr. Richardson stated, no.

He testified that on December 30, 2009, he received a telephone call from Dr. Allan advising that he wanted to apply for a livestock medicine licence because he was giving up his licence as a veterinarian.

On December 30, 2009, Mr. Richardson called Dr. Tom Baker, the director, to advise that Dr. Allan was applying for a licence because he was no longer going to be a practicing veterinarian. Dr. Baker agreed that this was an unusual circumstance and a unique situation as it was the very first instance where a retired veterinarian had applied for a licence to sell livestock medicines.

On January 4, 2010, he left a further message for Dr. Baker and on January 5, 2010, he spoke with Dr. Robert Vanderwoude, his manager, to discuss Dr. Allan’s application. On January 6, 2010, he left a message for his manager that the application was on its way and he also spoke with Dr. Baker.

Mr. Richardson made an appointment to meet Dr. Allan to review the Act and the Compliance Manual and to identify where Dr. Allan could have a fixed location in his home. The back alcove in Dr. Allan’s home was identified as the fixed location. There was also an empty room across from it, but it was not heated and, therefore, could not be used because certain medicine is required to be stored at room temperature.

Mr. Richardson testified that Dr. Allan advised that he normally was home on Wednesday and Friday mornings if there was a need for further inspections. Mr. Richardson testified they met for two and one/half hours that first visit and their discussion included the prohibition of peddling out of a vehicle. He further testified that he told Dr. Allan that he (Dr. Allan) would have to make the invoice out in advance and could not carry extra livestock medicine in his vehicle.

Mr. Richardson stated that Dr. Allan’s licence was approved officially on January 8, 2010, and Mr. Richardson returned to Dr. Allan’s premises on February 3, 2010.

On January 27, 2010, Mr. Richardson received a tip from a person complaining that Dr. Allan was selling livestock medicine at the Ottawa Sales Barn. Mr. Richardson conceded that Dr. Allan was allowed to deliver medicine and that he did not see Dr. Allan sell any medicine on January 27,2010, nor can he say that Dr. Allan illegally sold medicine on January 27, 2010 since he did not go to the sales barn that day. Mr. Richardson also acknowledged that when he phoned his superiors to discuss possible livestock medicine sales taking place at the sales barn, he did not have any evidence that Dr. Allan had actually contravened the Act.

Mr. Richardson testified that everyone who is able to sell livestock medicines under the Act has to have a licence known as a Class 1 licence. A temporary licence for a set date and location can be obtained by applying 30 days in advance of an event such as a horse show, horse race or fair. However, a temporary licence still requires compliance with all of the conditions under the Act.

On March 16, 2010, while at Hoard’s Station, Mr. Richardson said he approached a white Dodge truck, which he knew to be Dr. Allan’s. He testified he looked through the window and viewed livestock medicines including one that Dr. Allan could sell and one that he could not as it was Dry Clox, a prescription drug that is not allowed to be sold under the Act. He phoned his manager and then returned to the vehicle where he found Dr. Allan. He identified himself to Dr. Allan and testified that Dr. Allan admitted to him that “he had screwed up”. He initialed and dated all of the products in the truck and informed Dr. Allan that all of the initialed product must be back in his house/fixed location for the next inspection. He further testified that while he was initialing the medicines, two gentlemen approached the vehicle and Dr. Allan told them that he was “all out”.

Mr. Richardson further testified that on March 16, 2010, Dr. Allan also had vaccines that were not stored properly for the temperatures that day. They were in a cooler without cold packs. When questioned about the vaccines, Dr. Allan told him that he purchased the vaccines the day before and had left them in the truck overnight. Mr. Richardson stated that the temperature reported on the Belleville radio station before lunch that day was 14 °C and at 3:00 pm it was 12 °C. Newspaper reports for Ottawa reported a high on March 15 of 13.6 °C and a low for March 16 of -2.5 °C. The manufacturer’s prescribed storage temperature is 2 to 8 °C. He told Dr. Allan the vaccines would have frozen overnight and the temperature was now too warm to be without a cold pack, therefore, they were ruined. He testified that he instructed Dr. Allan not to sell or use the spoiled vaccines.

Mr. Richardson explained that the inspection process is set out in the Compliance Manual, not in the Regulation or the Act. He stated that a licensee first starts with 200 points and if a licensee sells an expired antibiotic they lose 30 points resulting in only 170 points. If the licensee sells temperature abused medications they lose an additional 20 points and so on. As long as a licensee has 140 points or more they comply. If they have less than 140 points they will be inspected again in the near future. If they have over 140 points the next time, the inspector advises that he will inspect again in a year or so. However, if a licensee has less than 140 points for the second time, the licensee will receive a caution letter and be subject to another inspection within 6 months. If the licensee has a third inspection with less than 140 points, then the Ministry can move to a hearing.

On March 16, 2010, Dr. Allan received negative 330 points due to five deficiencies that day. Mr. Richardson stated 100 points were deducted because Dr. Allan had prescription products that he was not supposed to be selling under the Act. In addition, he had no invoices or records in his vehicle.

While he was completing the inspection report, another individual approached Dr. Allan who Dr. Allan referred to Mr. Richardson. Mr. Richardson stated he informed the individual that no one is allowed to sell livestock medicines from their truck or away from their fixed location without a prior order. Mr. Richardson testified that the farmer told him that he gives Dr. Allan his order and that Dr. Allan delivers it to his farm. Mr. Richardson testified he told the individual that Dr. Allan can do that if he makes out an invoice in advance and only has the requested product in his vehicle.

Mr. Richardson also testified that another gentleman came up with a piece of paper to place an order. He conceded it was not odd for the farmers to ask Dr. Allan if they could purchase medicine if they knew that he was a veterinarian. He also acknowledged that Dr. Allan turned all of the gentlemen down who approached him that day.

Mr. Richardson agreed during cross-examination that on March 16, 2010, he did not see Dr. Allan sell any livestock medicines, nor did he see any livestock medicines leave the vehicle. However, Mr. Richardson maintained that he considered it offering for sale under the Act if livestock medicine was in the vehicle without a conveyance or invoice, and that Dr. Allan was in contravention of the Act’s provisions for storage and offering for sale. He also said Dr. Allan had confided that it was too much of a problem to make out the invoice in advance.

During further cross examination, Mr. Richardson did not agree Dr. Allan said he was out of the licensing program on March 16, 2010.

Mr. Richardson stated he and Dr. Allan agreed on the date of March 19, 2010, for an inspection at Dr. Allan’s fixed location, and for checking that all of the livestock medicines initialed on March 16, 2010were returned. Mr. Richardson stated although all of the medications that he had initialed on March 16, 2010were present, Dr. Allan did not pass the inspection on March 19, 2010 because there was a prescription drug on the shelf that he was not supposed to sell which reduced his score by 100 points. Mr. Richardson stated he informed Dr. Allan that there would be a third inspection within three months due to his second inspection failure.

Mr. Richardson stated that he spoke to his manager, Dr. Vanderwoude, on March 22, 2010 and advised he should send a warning letter informing Dr. Allan that he had failed two inspections in a row. He also testified he telephoned Dr. Vanerwoude to inform him as to what had happened and that he was “red bagging” or expediting the information to him. On cross-examination, Mr. Richardson testified he saw a draft of the non-compliance letter after the second failed inspection but had no knowledge or evidence it was actually sent and there was no evidence to show that Dr. Allan received the warning letter. He further testified and agreed the warning letter normally explains and reminds the licensee of their deficiencies.

During cross examination, Mr. Richardson identified Section 13 in the regulation which provides that a licensee is not permitted to display or have in his possession a prescription drug. Although the words in Section 13 are “sells any drug”, Mr. Richardson maintained that the definition of sell in the Act is “offer for sale, display, possess, sell or distribute”. Mr. Richardson conceded that Section 13 of the Regulation provides discretionary powers to the Director as it expressly states that a Director “may”. Mr. Richardson was unable to identify a passage in the Regulation or the Act which prohibits a licensee specifically from having a prescription drug and a designated livestock medicine in the same room.

Mr. Richardson testified that on May 10, 2010, he observed Dr. Allan’s vehicle at the Ottawa Livestock Exchange loading dock around 12:30 p.m. Before speaking with Dr. Allan, he went back to his vehicle to phone his manager who was unavailable. He stated he then approached Dr. Allan in the sales barn where he identified himself and attempted to speak with him in private but Dr. Allan refused. Mr. Richardson testified that there were other individuals nearby so he informed Dr. Allan that he had observed a box on the seat of his vehicle with a coat covering the top. Dr. Allan told him that he could not inspect his vehicle and that “he was done with you guys”. Mr. Richardson explained that he showed Dr. Allan his card and his appointment under the Act and then followed him to his seat. Mr. Richardson testified that Dr. Allan was upset and accused the Ministry of calling all of the drug companies to prevent them from selling to him. Mr. Richardson testified that he told Dr. Allan that he did not call any of the drug companies himself. Mr. Richardson testified that the Act allows an inspector to conduct an inspection at any time and he asked Dr. Allan again if he could inspect his truck before he left the sales barn. He took four pictures of Dr. Allan’s truck showing the boxes in his vehicle, which were made an exhibit.

Mr. Richardson explained that the first photograph showed the white Dodge truck and that the second photograph was taken from outside the passenger door photographing a box with a coat on it and there is some reflection of the next vehicle and building. The last photograph is an orange box with a coat over it and on the floor boards just past the gear shift is a towel and underneath it is a box shape similar in size to a vaccine cooler. He said on two previous occasions he had viewed livestock medicines in the box on the passenger seat and truck floor. He also testified that he saw Dr. Allan drive out of the sales yard at 13:20 hrs.

He further testified that Dr. Allan obstructed him from carrying out his duties that day and he was unable to give Dr. Allan a copy of his inspection report. He reported all of this to his managers and a decision was made with respect to Dr. Allan’s licence.

On cross-examination, Mr. Richardson acknowledged that at no time on May 10, 2010 did he see Dr. Allan remove any drugs from his truck nor did he see any drugs in Dr. Allan’s truck or in his hands. Mr. Richardson also agreed that he did not witness Dr. Allan moving about the sales barn area telling people that he had drugs for sale that day.

Mr. Richardson also testified that on May 10, 2010, Dr. Allan said he was “through with you guys” and that he no longer wished to be part of the licensing scheme anymore. He also agreed a person can quit or leave the licensing system at anytime; however, he maintained that Dr. Allan only told him that he was through with them and their licensing process at the very end of the discussion, just before Dr. Allan left.

Mr. Richardson agreed that when Dr. Allan said he “was done with them”, that he concluded at that moment that Dr. Allan had quit the licensing program and that his intention was no longer to be licensed or that he wanted to give up his licence. Under questioning, Mr. Richardson stated that after Dr. Allan made his comments that “he was done with them”, he then went and took pictures of Dr. Allan’s truck. Mr. Richardson testified he wasn’t done with Dr. Allan, because in his opinion Dr. Allan had a licence.

Mr. Richardson further testified that on May 10, 2010, he sent an e-mail with pictures of Dr. Allan’s truck to Dr. Vanderwoude and Rodger Dunlop. Mr. Richardson stated he no longer had a copy of the e-mail. In response to questions, Mr. Richardson acknowledged he had informed his superiors that Dr. Allan said he quit the licensing system.

During cross examination, Mr. Richardson acknowledged he had a conference call on May 13, 2010 with Dr. Vanderwoude and Rodger Dunlop, the Compliance Manager, about the status of Dr. Allan’s licence and discussed the issue of a provisional suspension during the call. He confirmed that it was Dr. Vanderwoude who would have recommended to Dr. Baker to suspend Dr. Allan’s licence.

In response to a question about whether it ever occurred to him to send Dr. Allan a letter stating that based on his own comments he was no longer entitled to sell drugs, Mr. Richardson stated that was not his job; it was the Director’s job. In response to a further question about whether he had ever recommended to his superiors that a letter be sent to Dr. Allan confirming that he had left the system voluntarily and was therefore no longer entitled to sell livestock medicines under the Act, Mr. Richardson stated no.

Mr. Richardson stated the letter dated May 14, 2010 was a provisional suspension preventing Dr. Allan from offering livestock medicines for sale. Mr. Richardson agreed that nothing in the letter discussed anything about failed inspections or a points system.

Mr. Richardson testified that, after a telephone conference with his managers on May 14, 2010, he went to Dr. Allan’s farm to hand deliver the suspension notice with Officer Cross. He stated Officer Cross gave Dr. Allan the letter of suspension and made the contents of the letter clear to him.

Mr. Richardson further testified he told Dr. Allan it was a requirement under the Act to seize the livestock medicines in his possession; however, Dr. Allan told them that they would first need a warrant to do so.

Mr. Richardson stated he believed that Dr. Allan still had livestock medicines in his possession because up until that moment in time, Dr. Allan had no idea his licence would be suspended, and that on each previous occasion Dr. Allan always had livestock medicines in his possession. Mr. Richardson also testified that Dr. Allan said that he would bring the livestock medicines to the hearing.

Mr. Richardson conceded that he did not see any livestock medicines on May 14, 2010, nor did he see Dr. Allan sell any livestock medicines on May 14, 2010.

Mr. Richardson explained that livestock medicines are usually sold at feed mills, hardware stores, and tack shops, and that they are also sold in some homes. He stated that Dr. Allan is not the only person that has a retail operation in his home.

Mr. Richardson testified that products that are not stored properly should not be sold or used to treat animals as the efficacy of the products can be affected by improper storage. If products are overheated or frozen this can also become an animal welfare issue. Further, if the product is to be stored at room temperature and the product becomes too cold, it can precipitate out and cause a microscopic reaction.

During cross examination, Mr. Richardson confirmed that any person who has livestock can purchase the drugs listed on the schedule from a licensee and keep the drugs at their farm for their own personal use. Therefore, if you own livestock, you can purchase, retain and administer all of the drugs that are listed in this schedule.

Mr. Richardson testified that he did not speak to anyone who had purchased livestock medicines from Dr. Allan, nor did he speak with anyone who had livestock medicines distributed to them under the Act by Dr. Allan, except the one gentleman at Hoard’s Station. Although he had phone calls from unidentified individuals who had witnessed Dr. Allan selling medicines under the Act, he did not personally see any livestock medicines pass through Dr. Allan’s hands.

Mr. Richardson acknowledged he told Dr. Allan, at least once, at the beginning of the process that he could leave the licensing system whenever he wanted to. Mr. Richardson further acknowledged that he spent an hour or more each time he met with Dr. Allan, and it was possible he may not remember the entire discussion. Mr. Richardson also stated the first time that he met with Dr. Allan in January 2010, he explained that the licence fee was from July to July and that there was no rebate if he stopped at any time.

Dr. Stephen James Palmer

Dr. Stephen James Palmer testified as an expert witness. He is a Doctor of Veterinary Medicine, with a BScAgr in 1979, and a DVM in 1983. He stated that he has been licensed as a veterinarian since 1983 and owned his own large animal veterinary practice between 1988 and 2006. In January of 2007, he started to work for the Ministry as a veterinarian in Eastern Ontario. His duties include the responsibilities as defined under the Food Safety and Quality Act, recommending approval of meat plants, temperature regulations, rifles, religious slaughter techniques, training provincial meat inspectors, and he is also appointed under lesser Acts to do a number of things, such as enforcing humane standards at the sales barns.

He stated he has testified in two provincial court trials and has been an expert witness at four directors’ licensing hearings. His experience is related to animal health as a practicing veterinarian, and in his government role, ensuring health standards are met.

Dr. Palmer testified that part of the training of becoming a veterinarian includes handling and dispensing of medicines. He also explained that as a veterinarian, he can buy and sell a greater variety of drugs, and he does not need to hold a licence under the Livestock Medicines Act.

Dr. Palmer explained why it is important to store and handle medicines properly. He testified that the medicines that Dr. Allan was using, including the products manufactured by Pfizer to treat certain conditions like mastitis, have storage requirements attached to the label. He stated manufacturers list warnings for storage conditions on the product labels as improper storage may affect the potency of the drug. He stated that veterinarians are trained to read the label first and foremost.

Dr. Palmer confirmed a vaccine is a livestock medicine, and that an antibiotic is not a vaccine; they are different compounds. He further explained that a livestock medicine is any chemical that you are going to inject, administer orally, or apply on the animal.

Dr. Palmer also confirmed temperature abuse can alter the potency of a particular drug and that the manufacturer will have storage conditions and explanations of how the temperature may affect the efficacy of the drug. He explained in the case of vaccines, there is usually a narrower storage window of 2-6 °C to preserve potency because vaccines are living organisms. Some drugs are to be stored at room temperature and some have warnings such as “Do not Freeze”. He pointed out if storage conditions are compromised, a product may lose its potency and may also create residue issues that show up in a food product. He further testified the expiry date is the manufacturer’s suggested date after which no one can guarantee the efficacy of the drug.

Dr. Palmer clarified that tetracycline is an antibiotic used extensively with livestock. He stated it can be administered in feed or given as an injection and is light sensitive. He stated temperature abuse can crystallize a drug and if the active ingredient in the drug settles out, there could be a difference in the concentration of the drug. This creates a problem because it may have an altered density and/or a slow absorption rate.

When asked about his client relationships and if he were at a sales barn, would it be normal to be approached by an individual asking to “buy some tetracycline for my horse”, Dr. Palmer testified that the CVO (College of Veterinarians of Ontario), the licensing body for veterinarians in Ontario, requires there be a client relationship before one can dispense or sell a drug. He explained the veterinarian needs to have a relationship with a client, have knowledge of the client’s animals and believe that the client will follow the proper treatment for their animals. He said it would be ideal if he saw the animal, but if he can trust the client, he can sell the proper drugs to that client. He confirmed that he can and does have drugs in his truck and he can sell drugs at a sales barn.

Officer Carolyn Cross

Officer Carolyn Cross has been a compliance officer for OMAFRA since April of 2007. She was hired by the Ministry in 1989 and worked as a meat inspector for 16 years and subsequently became a further processing inspector. She is also appointed as an inspector under the Livestock Medicines Act.

Officer Cross testified that in her role as a compliance officer she does inspections under several pieces of legislation and she supports and assists the various programs under the Ministry. She further testified on May 14, 2010, she accompanied Craig Richardson on a visit to Dr. Allan’s residence at 3225 Scotchline Road, Perth, Ontario at 1600 hrs. She testified the purpose was to deliver Dr. Tom Baker’s notice advising of the suspension of Dr. Allan’s licence and that all livestock medicines were to be surrendered that day.

Officer Cross testified she approached Dr. Allan after he arrived at his farm and got out of his vehicle. She asked him to take the envelope and read the letter. She testified he acknowledged the contents of the letter, and then he turned and walked away. She further testified that he wanted a warrant before he would allow them to seize the livestock medicines.

Officer Cross testified that on June 10, 2010 she returned to Dr. Allan’s residence with Graham Ridley to deliver the notice of hearing for July 7, 2010. When Dr. Allan arrived and got out of his truck she said she offered him the notice of hearing but he said to put it in his mailbox. She further testified that Dr. Allan would not allow her to conduct an inspection.

Officer Cross stated that she did not recall Mr. Richardson telling her at anytime prior to May 14, 2010 or June 10, 2010 that Dr. Allan had voluntarily quit the licensing program.

Dr. Kenneth George Allan

Dr. Allan was born in Perth, Ontario and attended Perth Collegiate. He graduated in 1963 as a Doctor of Veterinary Medicine. He worked for the federal government in 1963 in the New Liskeard area, but was based out of North Bay and had responsibility for the district of Timiskaming. After approximately two and a half years, he purchased the family farm and started practicing as a veterinarian about five miles from Perth.

Dr. Allan testified he has practiced as a veterinarian since graduation. Over the years he has practiced in different areas of veterinary medicine including both small and large animals. However, his focus was mainly with large animals for the first 15 to 20 years. His practice included small animals in the 1980s but he found it too busy and he did not enjoy the lack of time for each client so he returned to large animals.

He said he wanted to farm and originally started out with the dairy herd that belonged to his family when he purchased the property. Over the years, he has raised beef, sheep, and goats. Presently he has over 100 beef cattle, 250 ewes, horses, donkeys, goats, and many cats and dogs. He also explained that he spent much of his time over the past 48 years going to livestock sales so he is well acquainted with both the individuals that attend, and the dealers in the sales barn.

In 1963 when he graduated from the Ontario Veterinary College (OVC), Dr. Allan said he took an oath that said he must do the best he could for the treatment of any animal to relieve pain and suffering. He believed that the oath is for the animals alone and he lived by the oath.

Dr. Allan testified that he left the CVO and the practice of veterinary medicine voluntarily on September 16, 2009, because he was not physically capable of doing his entire job as a veterinarian. He thought he could satisfy clients by selling pharmaceuticals so he applied for a licence.

Dr. Allan testified he did not agree with Mr. Richardson’s position and, in his opinion, it would be normal for a veterinarian to have livestock medicines at a livestock sales barn. He stated that every sales barn has a veterinarian for that day to inspect the sales barn, and those veterinarians all carry drugs in their vehicles and sell them at the sales barn. Dr. Allan testified that wherever a veterinarian is, and if he has a doctor/patient relationship, he can sell his client medicines.

After practicing as a veterinarian for 48 years, Dr. Allan stated that he found selling livestock medicines under the Act to be quite foreign to him. He explained that as a veterinarian under “The College of Veterinarians of Ontario” (CVO), a veterinarian – client relationship exists, and you know your patients and clients very well. He said he is used to knowing what is needed to treat a condition, quantities and size of a bottle, rather than just selling drugs. Under the livestock medicines licensing system, he said someone would call him and not know exactly what they wanted as to quantities or size of bottle or even type of medication, leaving him to question whether he should even be selling the drugs to that person. He stated sometimes he would deliver the drugs and once there, find that something else was actually needed. He said he found this extremely difficult since this was not the way he had previously conducted business. Consequently, it became overwhelming to do the paperwork.

Dr. Allan testified it was approximately the second week of February 2010 when he started selling under the Livestock Medicines Act. He stated that he did not start when he received his licence in January 2010 because he did not have his room (fixed location) set up properly at that time.

Dr. Allan agreed he had several lengthy conversations with Mr. Richardson, all about an hour in length. Although he did not have a written record of it, Dr. Allan maintains that every time Mr. Richardson visited he told him if he did not like conducting sales under the Act, he could get out of it or leave at any time. Dr. Allan testified during the first visit, Mr. Richardson said “just tell me if you want out” at least three or four times. He took that to mean he could leave whenever he wanted. Dr. Allan testified not once did Mr. Richardson tell him that if he left they would seize his medicines. Dr. Allan explained that Mr. Richardson had told him so many times that he could leave the licensing program that he felt that there was someone who did not want him in the system and was trying to get him out.

Dr. Allan testified that when he joined the licensing scheme, he already had a lot of medicines in his possession from being a veterinarian, for his own personal use because he had over 100 head of cattle and 250 ewes. He explained that he goes to sales barns to purchase animals that are sick and tries to make them better.

He testified he had a perfect inspection on February 26, 2010. However, the next inspection on March 16, 2010 at Hoard’s Station did not go well. He stated he and Mr. Richardson had a discussion that day lasting more than an hour. He testified that Mr. Richardson explained the score system again and that it is essentially “if you lose so many points your name is put before the higher bodies, and they have a meeting to decide if you are going to stay on or are going to reject you.”

Dr. Allan said he knew there would be a decision made at a hearing with the Director due to his poor score. He also stated there was no purpose for him to go to the hearing because he was out of the licensing system.

Dr. Allan stated he disagreed with Mr. Richardson’s testimony that he left the program in May 2010. Dr. Allan testified there was no purpose for him to remain in the licensing scheme after the March 16, 2010 inspection score. He said when Mr. Richardson came back on March 19, 2010, he had all of the drugs back in his fixed location and had not sold any. Dr. Allan stated he thought Mr. Richardson understood after March 16, 2010, he was out of the system. Dr. Allan testified that he stopped selling pharmaceuticals as of March 16, 2010.

At the inspection on March 19, 2010, 100 points were deducted because Dr. Allan had a prescription drug on the shelf. Dr. Allan testified he allowed Mr. Richardson to come to his farm on March 19, 2010 because he believed Mr. Richardson had the right to check if he had returned all of the initialed product and whether he was complying with the Act.

Dr. Allan further testified he did not sell, nor did he offer for sale any livestock medicines after March16, 2010. All of the medicine was returned to the fixed location and was on the shelf; some with broken seals from Mr. Richardson’s initials; but all were back for the inspection on March 19, 2010. Dr. Allan also testified that after the second failed inspection in March of 2010, he did not receive the warning letter Mr. Richardson said was drafted.

On cross-examination, Dr. Allan explained the inspection report of March 16, 2010, listed a livestock medicine known as black leg, properly known as covexin. It actually has eight vaccines in it and it is a group of clustered vaccines. Although Mr. Richardson identified it was not stored properly, Dr. Allan testified it was also not for sale and it was destroyed after it was inspected. He stated it had remained in his vehicle from the previous day when he was vaccinating his own sheep. He also clarified that he only had one bottle of black leg vaccine in his truck that may have been stored improperly; the others were stored properly. He acknowledged the volume in his vehicle could have treated 60 ewes or possibly 180 calves.

At the end of March, 2010, Dr. Allan stated he received a call from his pharmaceutical supplier, Brendan Ginty, the CEO of the Veterinary Purchasing Company Limited of St. Mary’s, Ontario, advising he could no longer buy pharmaceuticals because he was no longer a practicing veterinarian. He was advised he must be a member of the CVO or that he could contact CDMV Inc., St-Hyacinthe, Quebec as they provide direct supply; or he could buy pharmaceuticals from Midwest Veterinary Purchasing in Manitoba.

Dr. Allan testified that he believed that either Mr. Richardson or his boss had contacted the suppliers and that is why they refused to sell to him. Dr. Allan testified that when he called Kane, the pharmaceutical supplier from Cambridge, he was told that his name had been red flagged and they could not sell to him. However, he had never purchased from Kane before so he assumed someone from the government had called them to advise that he was going to be suspended.

Dr. Allan’s next contact with Mr. Richardson was on May 10, 2010 at the sales barn in Ottawa. He said he was very upset when he met Mr. Richardson at the sales barn that day. Dr. Allan stated he was at the sales barn that day and had either loaded or unloaded pigs which is why his truck would have been backed up to the loading dock. He said he later moved the truck down below the canteen.

Dr. Allan testified he met Mr. Richardson going into the sales barn that day as he was going through the door. Mr. Richardson said he wanted to talk to him. Dr. Allan said he told Mr. Richardson he did not want to be involved in their system and “to leave me alone”. Dr. Allan testified he told this to Mr. Richardson a few times that day and he also told him that he was no longer part of his system and wanted to be left alone. Dr. Allan testified he moved away and Mr. Richardson followed him.

Dr. Allan testified there was definitely not any livestock medicine in his truck on May 10, 2010 because he was no longer carrying drugs with him, even if he needed them for his own use. However, Dr. Allan stated that he still had drugs at his farm from when he was a practicing veterinarian, for his own personal use as an owner of livestock. Dr. Allan also explained that most of the drugs in his possession were purchased before September 16, 2009.

Under cross examination by the Ministry, Dr. Allan acknowledged that on May 10, 2010, Mr. Richardson wanted him to come outside to speak with him and that he did not want to talk in public. Dr. Allan testified he was very angry that day as he was not sure who made the phone calls to the drug suppliers, but believed that Mr. Richardson had something to do with him being unable to buy from the pharmaceutical suppliers such as St. Mary’s and Kane. Dr. Allan confirmed that he was not using his truck for the sale of livestock medicines on May 10, 2010.

Dr. Allan testified he did not agree to an inspection on May 10, 2010 because he was no longer in the system, and his animals were starting to go through the livestock sale at the time Mr. Richardson approached him at the sales barn.

Dr. Allan stated he did not keep any livestock medicines for sale after he told Mr. Richardson he was through and he had quit, nor did he deliver any livestock medicines. Dr. Allan testified he did not contact anyone in Guelph because he became licensed through Mr. Richardson and was told he could leave by just telling him. He understood that Mr. Richardson would then convey that to his superiors and they would take action.

Dr. Allan testified he never hindered or obstructed an officer or inspector in the course of their duties while he was part of the licensing scheme.

Dr. Allan further testified that on May 10, 2010 he believed that he was no longer part of the Livestock Medicines Act in the province of Ontario; and that when Mr. Richardson and others came to his farm after May 10, 2010 and they asked for the livestock medicines, he absolutely refused. He stated he believed he had the right to keep the livestock medicines as an owner of livestock. It was also his opinion that once he was no longer a member of the licensing program those drugs became his again. In addition, he stated most of the drugs were his own and were never for sale.

Dr. Allan acknowledged he received the notice of suspension of the livestock medicine licence on May 14, 2010, and on June 10, 2010 he received a notice of the hearing before the Director to review the suspension or revoke his licence. Dr. Allan disagreed with Mr. Richardson’s testimony and stated it was absolutely false to suggest he said he would bring the drugs to the hearing. Dr. Allan testified he told Mr. Richardson and Officer Cross that he no longer belonged to the system and if they wanted his livestock medicine they would have to produce a search warrant.

Dr. Allan testified that he told them he was not going to the hearing on July 7, 2010, because it would be foolish to attend; however, he did not know at the time they were going to take his drugs or that this could be a consequence of the hearing.

He explained he is now appealing the decision of the Director because he would like his livestock medicines and his licence back. He stated he would like the opportunity to correct the mistakes the Ministry made in its decision.

Dr. Allan also testified that when they arrived with the warrant, they took all the livestock medicines in his house and former office as well as some prescription drugs. In addition, he stated they took a lot of paperwork and scribblers from previous years, as well as taking his grandfather’s practicing bag, which has sentimental value. Dr. Allan testified his cost for the livestock medicines seized was approximately $15,000 dollars.

He stated he does believe the livestock medicine system must have controls and although he was frustrated with the process before, he now believes that he can follow the rules. Dr. Allan also testified that the livestock medicine system and paperwork is different from what he was used to as a practising veterinarian. He stated he was used to focusing on serving his client, and he was not used to being a salesman. He stated he realizes now that he has to overcome this obstacle and he would be operating in a different system.

He testified that he would like his licence back and believes things will be different now. He plans to be smaller and serve fewer clients. Dr. Allan stated he does not foresee a problem working with Mr. Richardson in the future and that he “does a hell of a good job.” He also testified that he loves animals and will continue to work with them until he is not able to.

Dr. Allan also testified that individuals did come up to him at the sales barn in Mr. Richardson’s presence. He explained that one of those individuals was Doug Parr, a gentleman he has known for 12 to 13 years who lives near the sales barn. Dr. Allan testified he often spoke with Mr. Parr and had visited his place. Mr. Parr consulted Dr. Allan in deciding whether or not he should build a new barn. He testified the other men that approached him were individuals he knew through a previous Doctor/client relationship. He said he had sold pharmaceuticals to them in the past.

Dr. Allan also explained he was a lover of animals and that he takes his profession very seriously with respect to animal welfare. He stated high standards were placed on him as a veterinarian. Dr. Allan further testified he never sold any medicines that were temperature abused; he did his best to follow the regulations and anything that was sold from his vehicle was properly stored. Dr. Allan testified he often had drugs of his own in his truck as he had four farms. The medications worked satisfactorily for his own purposes and for what he was trying to achieve. He explained that some medicines, if warmed, may be more concentrated and may actually work better.

Dr. Allan did not agree it was a lucrative business to be part of the licensing system under the Act. He stated he did not give Mr. Richardson the licence back but he also testified no one asked him for it either. It was taken when his house was searched.

On redirect, Dr. Allan explained a veterinarian can use drugs off label; for example, the black leg drug. He explained off label is when you use a drug in any way that is different than prescribed by the manufacturer such as either a decrease to the dose or an increase to the dose. He stated as a veterinarian he can go off label and so can any person that has the drug to treat their own animals. He further pointed out if you are a practicing veterinarian under the CVO, you have the right to go off label to treat patients, however, this puts the onus on the veterinarian and takes the onus off of the manufacturing company.

Dr. Stephen Scott

Dr. Stephen Scott graduated as veterinarian in 1983. He has been involved in mixed animal practice for 28 years and is currently a partner in the Perth and Westport Veterinary Clinics. He is a member of a number of organizations including a member in good standing with the CVO, a member of the Ontario Veterinary Medical Association, the Canadian Veterinary Medical Association, and the Ontario Bovine Practitioner Association. He is appointed to a number of positions including being an accredited veterinarian by the Canadian Food Inspection Agency, a provincial meat inspector and a trainer for the Ministry’s livestock medicines program. It was also noted that he was a class mate of Dr. Stephen Palmer.

Dr. Scott testified he grew up on a dairy farm just outside of Perth and that Dr. Allan was the family’s veterinarian. In 1974 his father died suddenly and a little later Dr. Allan hired him as a farm labourer. He learned about veterinary mixed practice from Dr. Allan and later went to University to become a veterinarian. He stated that Dr. Allan advised him about how to watch animals and deal with clients. Dr. Allan explained to him that it was important to protect the client’s interests as well as to serve the Canadian public. He stated when he returned to Perth to set up his own practice, he and Dr. Allan discussed cases and new treatments and medications. He stated he has had a long relationship with Dr. Allan.

Dr. Scott testified after he set up his own practice he did some work with Dr. Allan. He testified in the later years of Dr. Allan’s practice, Dr. Allan would often ask him to do surgeries using the newer surgical techniques. He explained Dr. Allan’s diagnosis was always correct and together they performed numerous successful operations. He stated that their mutual clients respected Dr. Allan.

He testified Dr. Allan was always available for advice and having a senior colleague to offer that support was very helpful. As Dr. Allan became busier with his farm and stepped back from his practice, Dr. Scott stated he provided more surgical help to Dr. Allan, particularly if it was physically hard to do such as a calving. Dr. Scott testified that Dr. Allan knows his limitations and to the best of his knowledge Dr. Allan has not sold medicine above his knowledge or in a cavalier way.

Dr. Scott testified the Veterinarian’s Oath means veterinarians have to speak for the animal, and humanely handle things. He said veterinarians also have a responsibility to the public for food safety and have a responsibility to inform and educate the public about safety issues.

Dr. Scott testified he has known Dr. Allan for 40 plus years and, in his opinion, Dr. Allan has honoured the oath veterinarians take. He acknowledged he knew that Dr. Allan gave up his veterinary licence at the end of 2009, and had applied to the province to sell livestock medicines under the Act. He stated he was not aware that Dr. Allan had any difficulties complying with the Act. As a respected member of various organizations and the large and small animal community, Dr. Scott testified he would not be worried for any reason whatsoever of Dr. Allan selling drugs under the Act.

On cross examination, Dr. Scott acknowledged he was aware that Dr. Allan was selling medicines at sales barns. He stated he had no knowledge of any obstructions with the inspector.

James A. Beere

The next witness was James A. Beere, who began working with livestock at a very young age within a mile of Dr. Allan’s farm. As a teenager, he stated Dr. Allan helped him with cases on his family’s farm. He testified that he moved into the livestock feed business and then acquired a licence from the Ministry to sell livestock medicines. He said he has been selling feed for ten years and obtained the livestock medicine licence believing that people that bought feed would also buy livestock medicines. He said he sold livestock medicines for approximately 5 years.

Mr. Beere stated that in order to enter the licensing program he dealt solely with Mr. Richardson. He said Mr. Richardson arrived with the application and guidelines and he paid his fees to Mr. Richardson. He stated it was always his understanding that he was free to leave the program at any time by verbally telling Mr. Richardson. He said he always dealt with Mr. Richardson while he was in the program.

He testified that the revenue was not enough to justify the hassles of record keeping and the continuous turn over of product. Although he could sell a specific bottle of medicine, he said he could not tell his clients what medicine they should use as he is not a veterinarian. He testified that when he decided to leave the program, he mentioned to Mr. Richardson verbally that he was no longer going to continue to sell livestock medicines. Mr. Beere stated his licence automatically expired and there was nothing in writing to formalize his departure.

He testified that Mr. Richardson never said anything verbally or gave him any documentation that his licence was expired and there was no hearing to renew or not renew the licence. He stated there was nothing in writing to end the relationship and he further testified no one ever came back to the store to take or seize the medicines he had on hand.

On cross examination, Mr. Beere testified that he was inspected multiple times in the year by Mr. Richardson and to the best of his knowledge he never failed an inspection. He also testified that he never obstructed Mr. Richardson and had a good relationship with him. He said as things came up, his company did its best to comply and he was never brought to a licensing hearing. He testified that there were deficiencies from time to time but, if there were, Mr. Richardson provided advice.

Analysis and Findings of the Tribunal

The Tribunal finds that Dr. Allan properly submitted his application and fee for a licence to Mr. Richardson, and that Mr. Richardson forwarded it to Guelph with his recommendation. The licence was issued on January 8, 2010; however, Dr. Allan did not begin selling livestock medicines under the Act until February, 2010 after his fixed location was properly set up. Dr. Allan’s first inspection of February 26, 2010 was completed with a perfect score of 200 points.

On March 16, 2010, at the Hoard’s Station, Mr. Richardson believed that Dr. Allan was selling livestock medicines from his vehicle and approached him for an inspection of his vehicle. Dr. Allan failed this inspection with a score of negative 330 points due to the prescription drugs within the vehicle and the medicines that were improperly stored. Those drugs and medicines were initialed by Mr. Richardson. While the inspection report checked off “No prior invoice”, it did not indicate that Dr. Allan “sold, or offered for sale”. No points were deducted for the lack of a prior invoice. Dr. Allan and Mr. Richardson agreed to a follow up inspection date of March 19, 2010.

On March 19, 2010, Mr. Richardson inspected Dr. Allan’s fixed location and although he identified each and every medication that Dr. Allan had with him on March 16, 2010, he deducted 100 points from the inspection because Dr. Allan had a prescription medicine in the same location as the livestock medicines. However, during the hearing Mr. Richardson was asked to specifically identify the section of the legislation or regulation that prohibited this and he was unable to do so. On March 19, 2010, Dr. Allan’s score was 100 points and this was his second inspection with a score below 140 points.

According to Mr. Richardson’s testimony, a warning letter is to be provided after the second inspection of less than 140 points. Mr. Richardson’s evidence also indicated he had viewed a draft of a warning letter that was to be sent to Dr. Allan but he did not see the final letter and cannot confirm that it was actually sent. Dr. Allan testified he did not receive a warning letter. The Ministry did not provide it as evidence, nor did they call the author of the letter to provide evidence.

Therefore, the Tribunal finds that although Dr. Allan was not fully in compliance on March 16,and March 19, 2010, the Ministry also did not comply with its own established policy by not sending the warning letter to Dr. Allan after he had two inspections below 140 points. The Tribunal heard evidence that under normal compliance policy Dr. Allan should have been advised in writing of the problem, the potential revocation of his licence if there was a third inspection below 140 points, and advised of the options available for remedying the situation. Therefore, the Tribunal finds that a major procedural error took place when the warning letter was not sent to Dr. Allan advising him of the deficiencies and giving him the opportunity to correct the deficiencies.

There is some discrepancy in the evidence of whether Dr. Allan “quit” or “left” the licensing scheme under the Act on March 16, March 19 or May 10, 2010. Although there was much discussion and evidence about the events that took place on each of these dates, the Tribunal finds the actual date is not an issue. Both Dr. Allan and Mr. Beere testified that to leave the system all one had to do was notify Mr. Richardson that they “were out” or “leaving the system”. No handwritten note or letter was required. Mr. Richardson acknowledged this in his own testimony. In addition, all parties agreed that on May 10, 2010, Dr. Allan clearly indicated he had left the system, that he quit the licensing program and that he was “done with them”. Mr. Richardson also testified Dr. Allan expressly told him that he was out on May 10, 2010. Therefore, there is no doubt that Dr. Allan left the system on or before May 10, 2010. The Tribunal finds that Dr. Allan’s behaviour on May 10, 2010 was consistent with a person who had quit the system and now felt harassed by an official enforcing a licensing system to which he believed he no longer belonged.

The Tribunal accepts, on the balance of probability, Dr. Allan’s description of the sequence of events and that Mr. Richardson was told by Dr. Allan that he had quit before there was a request for inspection on May 10, 2010.

In addition, the Tribunal finds it difficult to reconcile the contents of the letter of May 14, 2010, which provisionally suspended Dr. Allan’s licence prior to the hearing. The facts are not in dispute. There was no physical evidence of livestock medicines in Dr. Allan’s truck at the Ottawa sales barn other than photos of boxes with a blanket over them. The Tribunal cannot accept this as reasonable and probable grounds to find there were livestock medicines in the boxes. Mr. Richardson also testified under oath he did not see Dr. Allan sell any livestock medicines from his vehicle or elsewhere on May 10, 2010. Dr. Allan testified that he stopped selling livestock medicines as of March 16, 2010.

The only evidence that suggests Dr. Allan may have sold livestock medicines at the sales barn came from Dr. Scott. During cross examination he confirmed he was aware that Dr. Allan sold livestock medicine at the sales barn. However, Dr. Scott did not elaborate and nor was he asked whether this was recent knowledge or related to Dr. Allan’s time practicing as a veterinarian.

Therefore, the Tribunal finds that the May 14, 2010 letter of provisional suspension and seizure of the livestock medicines, on the grounds of safety or animal health, is both inaccurate and not appropriate under the circumstances. It is simply not logical to suspend a licence which no longer exists. Dr. Allan clearly indicated he had left the licensing system; that he had quit, on or before May 10, 2010. The letter on May 14, 2010, should have acknowledged his voluntary withdrawal from the licensing system.

Secondly, to issue a letter on May 14, 2010, indicating that the licence is being suspended due to concern for animal health and safety, is also without grounds in the finding of the Tribunal. The only evidence of improper storage was the failed inspection on March 16th, 2010, and this evidence is not in dispute.

Dr. Allan testified he took his oath as a veterinarian very seriously and that animal health was a priority for him. In addition, Dr. Scott testified Dr. Allan was always concerned about an animal’s health and welfare in his treatment and diagnosis as a veterinarian. The Tribunal heard evidence from Mr. Richardson that he relied upon a radio station and the newspaper to obtain temperature conditions on March 16, 2010. The Tribunal finds the use of a radio station or newspaper a questionable way to accurately measure the temperature of storage conditions for livestock medicines. The use of a thermometer on site would have been a more accurate indicator of the temperature of storage within the vehicle.

If the Ministry was truly concerned about animal health and safety with respect to Dr. Allan’s licence, then the Tribunal finds that the appropriate time to take action on this issue would have been immediately on March 16, 2010 when Dr. Allan received a negative 330 score during the inspection. The Tribunal finds it is unreasonable to wait two months, and then send a letter suggesting concern about the health and safety of the animals.

The Tribunal has difficulty accepting that photographs of boxes with coats or towels over them on the floor or seat of a truck is reasonable evidence of livestock medicines being offered for sale or stored improperly without any further corroborating evidence. Therefore, the Tribunal finds there was no immediate danger to animal health on May 10, 2010.

In addition, the Notice of Hearing dated June 4, 2010, should have provided the opportunity for compliance or remedy in accordance with subsection 7 (1) of the Act which reads:

The notice of a hearing by the Director under section 5 or 6 shall afford the applicant or licensee a reasonable opportunity to show or to achieve compliance before the hearing with all lawful requirements for the issue or retention of the licence.

The Tribunal panel therefore finds that the Ministry did not provide the licensee with an opportunity for remedy as required by the Act. The provisional suspension letter of May 14, 2010 indicated that a hearing would take place and the June 4, 2010 Notice of Hearing did not comply with the requirements of the Act by not allowing the opportunity for remedy. Therefore, the instruction for seizure of the livestock medicines was made without reasonable or probable grounds. There was no evidence placed before the Tribunal that has convinced the Tribunal that the livestock medicines and prescription drugs should have been seized on May 14, 2010.

Dr. Allan provided his verbal withdrawal that he was leaving the licensing system. Mr. Beere testified that he verbally told Mr. Richardson that he was leaving the licensing system. Mr. Richardson agreed in his testimony that an individual may leave the system voluntarily and although Dr. Allan was done with the system, “they were not done with him”. The Tribunal finds the Ministry’s continued persistence with regard to Dr. Allan, after it is acknowledged that Dr. Allan had left the system, troubling and inconsistent with the Ministry’s standard practice as evidenced by its Compliance Manual and the testimony of Mr. Richardson. Mr. Beere’s testimony was also clear and concise; he verbally withdrew from the licensing system by telling Mr. Richardson and he was allowed to keep the livestock medicines in his possession because he had his own livestock. This was the normal accepted practice of the Ministry. The evidence is also clear that Dr. Allan has many livestock and as a livestock owner, Dr. Allan has the right to have livestock medicines on his premises and in his possession to treat his own animals. It is the Tribunal’s position that the Ministry should have followed its normal past practice and allowed Dr. Allan to keep the livestock medicines in his possession when he left the system, and finds the Ministry’s actions unreasonable in these circumstances.

In addition, the Tribunal finds there should not have been a hearing on July 7, 2010, to revoke Dr. Allan’s licence, as the Director cannot revoke something that no longer exists. The licence was given up by Dr. Allan on or before May 10, 2010, when he left or quit the system. Mr. Richardson acknowledged that Dr. Allan had left or quit the system on May 10, 2010.

The Tribunal also finds that Dr. Allan did not intentionally obstruct Officer Cross or Mr. Richardson or any others in carrying out their respective duties under the Act. Prior to May 10, 2010, Dr. Allan fully complied with and allowed Mr. Richardson to inspect both his truck and his premises. After May 10, 2010, when he had clearly left the licensing system or scheme, he did not allow or provide access to his premises. There was no evidence that indicated to the Tribunal that Dr. Allan was hiding anything from the Ministry. He testified that he left the system and believed that the Ministry no longer had the right to further inspect his premises.

The Tribunal also finds that Dr. Allan did not intentionally obstruct Officer Cross in her attempt to deliver the Notice of Hearing or to remove the livestock medicines on June 10, 2010. The removal of livestock medicines was not the normal practice of the Ministry for a licensee that voluntarily left the system and continued to own livestock. In addition, it is agreed by both parties that Dr. Allan left the licensing system as of May 10, 2010 and, therefore, any seizure of livestock medicines from his dwelling, which contained the fixed location, after this date would require a search warrant. There is no evidence of a search warrant being presented on either May 14, 2010, or June 10, 2010.

The Tribunal is deeply troubled by the procedural errors that have taken place and the subsequent actions by the Ministry without an attempt to correct those errors. In March of 2010, a warning letter was drafted and never sent, yet the Tribunal heard evidence that a warning letter was established policy. In addition, the rationale for the provisional suspension in the letter of May 14, 2010 alleged concern for the safety and health of the animals under Dr. Allan’s care, yet the only credible evidence of any improper storage of livestock medicines occurred on March 16, 2010, two months earlier.

The Tribunal is troubled by the fact that the Ministry finds it acceptable to wait two months to take any remedial action and then alleges in the letter of May 14, 2010 that Dr. Allan’s conduct threatened the health and safety of animals. In addition, the same letter of May 14, 2010 provides for an immediate provisional suspension of his licence and does not provide the opportunity to take corrective action, nor does the June 4, 2010 Notice of Hearing as required under Section 7 of the Act. It is the Tribunal’s finding that the procedural errors that began when a warning letter was not issued to Dr. Allan in March of 2010, continued when the May 14, 2010 letter of provisional suspension was sent based on the speculation of what an inspector thought may have been in Dr. Allan’s vehicle. Therefore, the Tribunal finds the basis for the hearing of July 7, 2010 improper, and therefore it is the Tribunal’s position that any further action that followed as a result of the hearing of July 7, 2010 was also improper.

ORDER OF THE TRIBUNAL

After carefully considering all of the evidence, the Tribunal hereby orders as follows:

1. That Tribunal accepts the evidence of Dr. Allan’s voluntary resignation from the licensing system, therefore the Tribunal will not order the reinstatement of his licence.
2. That all prescription and livestock medicines seized shall be returned to Dr. Allan; and, if they are expired, have been destroyed, or disposed of, then he shall be compensated for all said livestock medicines and prescription medicines.
3. That Dr. Allan’s personal items and written records removed during the execution of the search warrant be returned forthwith.
4. That the Tribunal accepts the evidence that Dr. Allan voluntarily resigned from the licensing system before his licence was suspended or revoked, and therefore the Ministry shall not consider Dr. Allan’s voluntary resignation from the licensing system negatively, should he reapply for a licence under the Act.

Dated the 15th day of July, 2011 in the Town of Amherstburg, Ontario