CITATION: College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155

DIVISIONAL COURT FILE NO.: 525/09

DATE: 20110228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, HERMAN AND HARVISON YOUNG JJ.

BETWEEN:

COLLEGE OF VETERINARIANS OF ONTARIO

Applicant

– and –

DR. KHAWAR HANIF

Respondent

Bernard C. LeBlanc, Lisa S. Braverman, for the Appellant

Neil M. Abramson, Lindsay Kantor, for the Respondent

HEARD at Toronto: September 15, 2010

HARVISON YOUNG J.

Introduction

[1] In this matter, the College of Veterinarians of Ontario (the “College”), appeals two decisions of the Discipline Committee of the College (the “Committee”), which were rendered following hearings pursuant to two sets of allegations of professional misconduct made against Dr. Khawar Hanif arising out of complaints by two unrelated complainants. The two matters were heard together. Each notice of hearing included a number of allegations against Dr. Hanif.

[2] After some 11 days of hearings held over many months, the Committee rendered its decisions in both cases on the same day. Apart from finding that Dr. Hanif had been guilty of professional misconduct in prescribing Advantage 20, a dog flea medication, for Cleo, a cat, the Committee acquitted Dr. Hanif of all the allegations of misconduct. One of the two proceedings arose from a complaint made by Ms. Jennifer Schilbe (“the Schilbe complaint”), who had taken her cat Cleo on one occasion to Dr. Hanif for tests and shots just after acquiring her as a kitten. The other proceeding arose from a complaint made by Ms. Susan Schmidt, who had been taking her dog Scully to Dr. Hanif for approximately 10 years before the visit that gave rise to her complaint (“the Schmidt complaint”) took place.

[3] The respective allegations will be set out in greater detail below. In brief, the Schilbe Notice of Hearing alleged that Dr. Hanif had inappropriately prescribed dog flea medication for Ms. Schilbe’s cat, had hit and abused her cat in the course of the visit, and had verbally abused her, calling her a “bad owner”. The Schmidt Notice of Hearing alleged that Dr. Hanif had misdiagnosed advanced kidney disease after misinterpreting preliminary tests and failing to consider Cushing’s disease, which was subsequently diagnosed. It also alleged that Dr. Hanif had failed to recommend further testing as he should have, and, further, that he had recommended treatment that was not appropriate for the ailment that Scully actually had. Finally, the Schmidt complaint alleged that Dr. Hanif had inappropriately hugged Ms. Schmidt and made an inappropriate remark to her.

[4] Although the College relies on a number of errors allegedly made by the Committee in its reasons for decision in both cases, the heart of its appeal lies in its submission that the reasons for decision were, in both cases, “woefully inadequate”. The College submits that even if there is some room for debate as to the adequacy of various elements of the reasons, the cumulative effect of the problems in each is such that both sets of reasons fail to meet the minimum requirements of sufficiency. No appeal is taken from the finding of guilt in the Schilbe complaint relating to the prescription of the flea medication for Ms. Schilbe’s cat.

[5] The respondent submits that while the reasons in both cases might be somewhat inelegant and brief, they manifest no significant errors that would warrant sending the matters back for rehearing, and they do not manifest such errors that they can be said to be unreasonable.

[6] After reading the materials and hearing the submissions of counsel, I am of the view that, regrettably, the appeals must be allowed. My reasons follow.

The Standard of Review

[7] The parties agree that the appropriate standard of review to be applied in this case is reasonableness with respect to all issues except the adequacy of reasons. The appellant submits, however, that the “standard of review does not apply [with respect to adequacy of reasons], in which case the standard of review does not apply as the only question is whether a party has been denied procedural fairness or natural justice.

[8] The respondent asserts that the appropriate standard of review to be applied to all issues, including the adequacy of the reasons, is that of reasonableness. As the Supreme Court of Canada held in Dunsmuir v. The Queen, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47,

… reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

[9] The standard of review to be applied in this appeal is generally one of reasonableness. This is the applicable standard with respect to a number of the alleged deficiencies such as the misapplication of the doctrine of corroboration, the making of inconsistent factual findings, the failure to make any findings at all in relation to some of the allegations and the failure to consider relevant and material evidence.

[10] In the recent Court of Appeal decision of Clifford v. Ontario Municipal Employees Retirement System, 2009 ONCA 670 at para. 22, Goudge J.A. made it clear that the adequacy of reasons is subject to a correctness standard:

Where an administrative tribunal has a legal obligation to give reasons for its decision as part of its duty of procedural fairness, the question on judicial review is whether that legal obligation has been complied with. The court cannot give deference to the choice of a tribunal whether to give reasons. The court must ensure that the tribunal complies with its legal obligation. It must review what the tribunal has done and decide if it has complied. In the parlance of judicial review, the standard of review used by the court is correctness.

[11] Accordingly, to the extent that the question in the present case is whether the tribunal met its duty to give reasons, the standard of review is correctness.

Adequacy of Reasons

[12] A number of purposes are served by the duty to give reasons: first, reasons explain to a party the result that has occurred, so that the party understands the result and can make a decision whether to seek further review, and second, they allow a court or other supervisory body to undertake meaningful review. These purposes include but are not restricted to fulfilling the principles of natural justice; see Vancouver International Airport Authority v. Public Service Alliance of Canada (2010), 2010 FCA 158, 320 D.L.R. (4th) 733 (F.C.A.) (“V.I.A.A.”). The accountability purpose requires that “there be enough information about the decision and its bases that the supervising court can assess, meaningfully, whether the decision-maker met minimum standards of legality”; V.I.A.A., supra, para 16.

[13] In explaining this purpose, Stratas J.A. wrote:

Justification and intelligibility are present when a basis for a decision has been given, and the basis is understandable, with some discernable rationality and logic. Transparency speaks to the ability of observers to scrutinize and understand what an administrative decision-maker has decided and why. In this case, this would include the parties to the proceeding, the employees whose positions were in issue, and employees, employers, unions and businesses that may face similar issues in the future. Transparency, though, is not just limited to observers who have a specific interest in the decision. The broader public also has an interest in transparency: in this case, the Board is a public institution of government and part of our democratic governance structure (V.I.A.A., supra, para.16).

[14] As the Court of Appeal also held in Clifford, supra, the content of the duty to give reasons will vary considerably from case to case and must be determined functionally in accordance with the specific context of each case; see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (S.C.C.), [1999] 2 S.C.R. 817; Clifford, supra, at para. 19. In the course of considering the adequacy of reasons, courts must take account of the context and realities in which administrative bodies operate, including the fact that many decision-makers, as in the present matter, are non-lawyers.

[15] As Goudge J. wrote in Clifford, supra, at para. 43:

“[R]ecognition of the day-to-day realities of administrative agencies is important in the task of assessing sufficiency of reasons in the administrative law context. One of those realities is that many decisions by such agencies are made by non-lawyers. That includes this one. If the language used falls short of legal perfection in speaking to a straightforward issue that the tribunal can be assumed to be familiar with, this will not render the reasons insufficient provided there is still an intelligible basis for the decision.”

[16] Goudge J.A. also explained in Clifford, supra, at para. 29 that the sufficiency of reasons must be assessed functionally:

“[R]easons must be sufficient to fulfill the purposes required of them, particularly to let the individual whose rights, privileges or interests are affected know why the decision was made and to permit effective judicial review. As R.E.M. held at para. 17, this is accomplished if the reasons, read in context, show why the tribunal decided as it did. The basis of the decision must be explained and this explanation must be logically linked to the decision made.... [T]he “path” taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.”

[17] The issue to be addressed in considering the adequacy of reasons is whether these purposes have been fulfilled at a minimum, and the court’s assessment of reasons is aimed only at ensuring that legal minimums are met; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 25-26.

[18] The respondent’s counsel argued that, to the extent that the College submission that the reasons are inadequate is based on the principles of natural justice, the courts should be more inclined to uphold an acquittal, as here, than a conviction. A prosecutor such as the College in this case should have only a very limited right to assert a failure of natural justice due to an insufficiency of reasons. Mr. Abramson submits that there are no cases where the insufficiency of reasons has founded the quashing of an acquittal of a professional.

[19] I do not agree that there should be a different standard for the sufficiency of reasons depending on whether it is the member or the professional body appealing the order.

[20] The principle of accountability is important not only for those, such as Dr. Hanif, whose rights and interests are most directly at stake in such proceedings, but also, in a democracy, for all citizens who have a stake in such regulation, such as the complainants in this case. The public interest roles served by professional bodies such as the appellant require that the principles of accountability be taken seriously, whether the result favours the member or not in a particular case.

[21] On this point, in its reasons for decision in Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1, at para. 81, the Court of Appeal specifically stated that, in its view, had the Hearing Panel in that case found that the allegations against the lawyer were not made out, the Panel would still have been obligated to explain to the complainants why their evidence had not been accepted. The Court made no suggestion that the standard applied to evaluate sufficiency of reasons should be any weaker when a complaint is found to have been unfounded.

The Decisions

[22] I now turn to consider each set of reasons.

The Schilbe Case

The Allegations

[23] The Notice of Hearing relating to Ms. Schilbe alleged that:

(a) Dr. Hanif had improperly prescribed dog flea medication for Cleo the kitten; that one of his auxiliaries had improperly advised her to use only part of a full tube on each of her cats; and that Dr. Hanif had improperly advised against testing Cleo’s blood for feline leukemia virus and feline immunodeficiency virus;

(b) Dr. Hanif had physically abused Cleo; and that,

(c) Dr. Hanif had verbally abused Ms. Schilbe.

[24] The College alleged that each aspect of the complaint constituted professional misconduct pursuant to various elements of section 17(1) of Ontario Regulation 1093, R.R.O. 1990, under the Veterinarians Act, R.S.O. 1990, c. V.2, and also that the advice to split the tube of medication among Cleo and the other cats constituted a violation of the federal Pest Control Products Act, S.C. 2002, c. 28.

[25] As the College notes, the hearings took place over some eleven days beginning in September 2008 and continuing until March 2009. In its decision and reasons, released October 5, 2009, the Discipline Committee found Dr. Hanif guilty of professional misconduct in relation to the prescription of Advantage 20, the dog flea medication, to Cleo and Ms. Schilbe’s other two cats without a valid veterinarian-client-patient relationship in respect of the other two cats, but dismissed the balance of the complaint.

[26] The College claims both that there are a number of problems with the reasons given by the Committee that are, in themselves, sufficiently serious as to justify a re-hearing, and that the cumulative effect of the errors in any event makes the Committee’s decision unreasonable and in breach of its duty of fairness to provide adequate reasons. In summary, the alleged errors are:

(a) The Committee required corroboration or “independent” witnesses with respect to the alleged abuse of Cleo;

(b) The Committee made inconsistent findings of fact and credibility without explanation and failed to address material evidence;

(c) The Committee failed to make any determination whatsoever with respect to the verbal abuse allegation; and,

(d) The Committee failed to address the Pest Control Products Act allegation and the blood test allegation in its reasons.

Analysis of the Schilbe Decision

The Animal Abuse Allegations

[27] The allegations of animal abuse are considered first. Ms. Schilbe alleged that Dr. Hanif had hit Cleo repeatedly and generally handled her in a manner that constituted animal abuse.

[28] Dr. Hanif and Ms. Schilbe, the only humans in the room at the time, had given contradictory evidence as to what took place. Dr. Hanif denied hitting or abusing the cat. He did acknowledge Ms. Schilbe was upset following the appointment, and Dr. Hanif’s assistant testified that Ms. Schilbe’s eyes were red when she left. The Committee quite appropriately commented that one could not conclude that Cleo had been abused simply because Ms. Schilbe was upset when she left the examination room. The Committee stated:

We found Ms. Schilbe’s demeanor to be overall, quite admirable and her evidence credible. The totality of the evidence leaves us with little doubt that Dr. Hanif may have been ham-fisted in his handling of the kitten. However, we believe that convicting a professional of a charge as serious as animal abuse requires more substantial evidence than a client’s red eyes. We have no witnesses independent of Ms. Schilbe and Dr. Hanif to give us information which may allow us to determine whether Hanif crossed the line into inflicting pain” [Emphasis in original.] (Schilbe Reasons, p. 6).

[29] At the end of the reasons, under a heading titled “Credibility”, the Committee stated as follows:

In respect to the finding of guilty, we believe Ms. Schilbe to be an honest and credible witness. We believe her testimony was accurate and we accept her evidence as true. On the other hand we did not feel that Dr. Hanif’s evidence was reliable. He was evasive in his answers during cross-examination and often claimed he was unable to recall events that were contrary to his evidence and his interest” (Schilbe Reasons, p. 11).

[30] The appellant College submits that this extract from the reasons reveals that the Committee erred in law in that it appears to have thought that it could not find Dr. Hanif guilty of animal abuse unless Ms. Schilbe’s evidence was corroborated. If the Committee did believe this to be the case, it would clearly be wrong; see F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41; Ontario v. Ontario Public Service Employees Union, [1984] O.J. No. 1006 (Div. Ct.) (“OPSEU”). The respondent argues that there was exculpatory evidence from Dr. Hanif, as well as from his auxiliary, who testified that she had not heard anything from inside the examination room that caused her to think that the events described by Ms. Schilbe had taken place. There was also evidence from another veterinarian, Dr. Cox, to whom Ms. Schilbe had taken Cleo shortly after the appointment with Dr. Hanif. Dr. Cox testified that he did not recall Ms. Schilbe mentioning any abuse at that time. The respondent also submitted that Ms. Schilbe’s evidence contained numerous inconsistencies and that the Committee was justified in finding that the abuse complaint had not been proven.

[31] There are a number of problems with the respondent’s position. First of all, his submissions underline the deficiencies with the reasons given, because while the evidence to which he refers might have supported the conclusion reached, the Committee does not refer to it in its reasons for decision. The Committee did not even allude to Dr. Cox’s evidence that he did not recall the complainant mentioning any abuse when she brought Cleo to see him, but this evidence was clearly material to the question of whether the claimed abuse occurred. The problem is not that there was no evidence upon which an acquittal might have been founded, but rather that it is not possible to tell what the Committee considered to be material and what it did not, or why. This prevents meaningful appellate review; see Law Society of Upper Canada v. Neinstein, supra, at para. 76.

[32] One could, as the respondent submits, suggest some explanations for the apparent disconnect between the express credibility findings and the result on the animal abuse charge. It might be possible, for example, that the Committee was of the view that Ms. Schilbe was credible generally but not reliable as far as her recollection of the alleged abuse is concerned (as suggested in argument by Mr. Abramson).

[33] The Committee did not, however, articulate anything that could be so construed. It is simply not clear whether it acquitted Dr. Hanif on that allegation because it thought it needed corroboration as a legal matter, or because it did not think that Ms. Schilbe was credible or reliable on the abuse allegation, or because it thought that she was honest but mistaken because she had been upset. The reasons are inadequate.

[34] Of course, if the Committee was saying that it required corroboration as a matter of law to make a finding of misconduct, it committed an error of law in this respect, and its conclusion is unreasonable.

The Verbal Abuse Allegation

[35] The College also alleged that:

Dr. Hanif was also verbally abusive to Ms. Schilbe. Among other things, Dr. Hanif accused Ms. Schilbe of not knowing how to treat her animal appropriately and not being a good owner. He also attempted to justify his conduct toward “Cleo” (Statement of Allegations, para. 4).

[36] As with the allegations of animal abuse, the Committee heard conflicting evidence from the parties. The Committee’s order dated January 8, 2010, makes it clear that the verbal abuse allegation was dismissed. However, the only reference to this allegation that appears in its reasons is the verbatim recital of the allegation. There is no discussion or analysis whatsoever of the evidence on this issue.

[37] Again, this makes appellate review very difficult, if not impossible. Given that the only findings of credibility and reliability articulated in the reasons favour the complainant, the result does not seem to flow from the findings that were made. Because the Committee did not discuss these allegations or the evidence on the issue at all in its reasons, there is simply no way to know why it reached the conclusion it did.

[38] The other deficiencies, as submitted by the appellant, are interrelated. There is simply nothing in the reasons that addresses the allegations of verbal abuse, although they are repeated verbatim early on. There are no references to the evidence on this point, and no findings of credibility specific to the allegations of verbal abuse. As this Court wrote in Venneri v. College of Chiropractors of Ontario, 2008 27824 (ON SCDC), [2008] 238 O.A.C. 143 at para. 8, “Reasons that amount to mere conclusions are not sufficient; the tribunal is required to set out its findings of fact and the principal evidence upon which those findings were based”. With respect to the animal abuse allegations, it is not clear what the Committee’s findings of fact were, given that it simply stated that it was not sure who to believe.

[39] With respect to the verbal abuse allegation, the Committee failed to address the allegations at all, so that it neither made findings of fact nor referred to material evidence on the issue. The only reference to the allegation of verbal abuse is in the order issued by the Committee which includes the verbal abuse allegation among those which were dismissed. There was contradictory evidence on this point, but there is no discussion whatsoever of the material evidence relating to this allegation in the course of the reasons.

[40] In short, it is impossible to tell what the “road map” was with respect to this allegation, or why the allegation was dismissed. There are no reasons whatsoever with respect to it.

[41] The Schilbe complaint also alleged that Dr. Hanif did not understand the purpose of testing cats for feline leukemia virus and feline immunodeficiency virus, which arose from Ms. Schilbe’s allegation that he had told her that there was no point in testing Cleo without testing her other cats. Apart from setting out the allegation, the Committee does not refer to this issue. It is clear that there was evidence on this point, both from Dr. Hanif and Ms. Schilbe, and from experts, as well. There is no reference to the evidence on this issue and no explanation as to why this allegation was dismissed.

[42] This is particularly mystifying in light of the fact that the Committee accepted Ms. Schilbe’s evidence on the subject of the prescription of the flea medication intended for dogs, which she was advised to split between her cats, and found that the allegation in that respect had been made out.

[43] The fact that the alleged conversation relating to the testing of the cats took place in the course of the same conversation raises the obvious question as to why the Committee would have concluded that that complaint was made out with respect to the flea medication allegation, but not with respect to the allegation that Dr. Hanif had told her there was no point in testing the cats. There could well have been reasons for the differing conclusions, but it is simply not possible to discern any from the reasons given and the record before the court.

[44] In addition, there is no mention of the allegation that Dr. Hanif breached the provisions of the Pest Control Products Act. As with the allegation of verbal abuse, the only indication that he was acquitted of this allegation is contained in the order issued by the Committee that stated Dr. Hanif was found guilty of allegations included in paragraph 9 of the complaint, which itself stated that “if Dr. Hanif told Ms. Schilbe to use a few drops of Advantage 20 on ‘Cleo’ and split the rest between her other cats, such advice is contrary to the Pests Control Products Act 2002, c.28.” There is no reference to the evidence heard on the issue at all.

Conclusion on the Schilbe Decision

[45] These deficiencies, seen as a whole, render the decision unreasonable. While it might be the case, for example, that a mere failure to address the Pest Control Products Act or blood test allegations might not have justified a finding that the decision as a whole was unreasonable, the overarching problem is the cumulative effect of the deficiencies, as discussed above, as well as the failure to refer to material evidence, the failure to make findings of fact on a number of issues, and the fact that some of the conclusions do not flow from the findings of credibility that were made renders the decision, read as a whole, unintelligible, and lacking in transparency or justification. The totality of these deficiencies leads to the conclusion that the decision is unreasonable.

[46] I am also of the view that, seen from the perspective of the adequacy of the reasons, and assessed functionally (see Clifford, supra, para. 43), the reasons fail to meet the minimum standard required.

[47] In assessing these reasons functionally, the fact that the tribunal in question is a lay tribunal must be taken into consideration; see Clifford, supra, at para. 43. Having said that, however, the reasons must be intelligible. This is accomplished if the reasons, read in context, indicate why the tribunal decided as it did. The basis of the decision must be explained and this explanation must be logically linked to the decision made; Clifford, supra, para. 29. That standard was not met in the present case as set out above. It is hard to believe that Ms. Schilbe could have understood from the reasons why the Committee reached its conclusions.

[48] As set out above, the Committee failed to refer to material pieces of evidence, as a result of which it is not possible to understand the basis of its credibility findings. It then reached some conclusions that appear to be inconsistent with its credibility findings. It did not deal at all with the Pest Control Products Act allegation. In short, the reasons do not disclose a “path” that indicates why it reached the conclusions it did; see Clifford, supra, at para. 29.

The Schmidt Case

The Allegations

[49] Jennifer Schmidt, who had taken her dog Scully to Dr. Hanif for about 10 years, complained that Dr. Hanif had improperly diagnosed kidney and liver problems along with concurrent hypothyroidism when she had taken Scully to Dr. Hanif in September 2006, and that Dr. Hanif had told her that Scully’s prognosis was poor, recommended inappropriate treatment, and failed to recommend further or appropriate diagnostic tests or investigations.

[50] Ms. Schmidt took Scully to another veterinarian for a second opinion and possible euthanasia on the basis of Dr. Hanif’s diagnosis, and the second veterinarian made and subsequently confirmed a diagnosis of Cushing’s disease, with a much better prognosis.

[51] When the complainant returned to Dr. Hanif’s office to discuss the misdiagnosis, she alleges that Dr. Hanif made some inappropriate comments to her and hugged her.

[52] The Committee acquitted Dr. Hanif of all the allegations arising out of the Schmidt complaint.

Analysis of the Schmidt Decision

[53] There are a number of particular difficulties with the Reasons for Decision in the Schmidt case (the “Schmidt Reasons”), but, as with the Schilbe Reasons, the cumulative effect of these deficiencies in the decision render the decision unreasonable. As with the Schilbe Reasons, the Schmidt Reasons are very brief, comprising just over three double-spaced pages following the verbatim recital of the allegations (itself taking almost three pages).

[54] The largest and most vexing problem with the Schmidt decision is that the final conclusion of the reasons – an acquittal on all allegations contained in paragraph 7 of the Statement of Allegations – does not seem to follow from the findings that precede it.

[55] After setting out the Statement of Allegations verbatim, the Committee turned first to the allegations made in paragraph 7 of the complaint, which read:

Dr. Hanif failed to consider Cushing’s disease as part of his differential diagnosis and he misinterpreted “Scully’s” test results. Dr. Hanif therefore misdiagnosed “Scully” and recommended inappropriate treatment. Dr. Hanif also failed to recommend any further or any appropriate diagnostic tests or investigations.

[56] The Committee broke the allegations contained in paragraph 7 into four parts, which it considered to be separate but interrelated. With respect to the misdiagnosis, the Committee explicitly found that Dr. Hanif had not considered Cushing’s disease. It referred approvingly to Dr. Yuill, an expert called by the College, who testified that this failure, given the test results, was unprofessional and constituted a “failure to uphold standards of practice”.

[57] The Committee also referred to the evidence of Dr. Hopper, the veterinarian who had subsequently treated Scully and who had testified that she had been surprised that Dr. Hanif had diagnosed renal failure, as the records showed that Scully’s kidney enzymes were within the normal range. In addition, the Committee referred to the evidence of another expert called by the College, Dr. Gary Landsberg, who testified that he would have put Cushing’s disease on his list of differential diagnoses.

[58] The Committee stated that it found Ms. Schmidt’s and Dr. Hopper’s testimony credible, and also that it found Dr. Yuill to be more credible than Dr. Hanif. The Committee thus concluded that “the allegation of not considering Cushing’s was valid and that Dr. Hanif misdiagnosed Scully” (Schmidt Reasons, p. 5).

[59] The Committee then continued to consider the allegation that “[h]e misinterpreted Scully’s test results [and] therefore misdiagnosed Scully and recommended inappropriate treatment” (Schmidt Reasons, p. 5). The Committee stated that it accepted the evidence of both Dr. Hopper and Ms. Schmidt, who testified that Dr. Hanif had diagnosed renal failure and not renal insufficiency. In so doing, the Committee stated “[w]e believe their testimony was credible” (Schmidt Reasons, p. 5). This is the only time in the course of the reasons that there is any reference to a credibility finding with respect to Ms. Schmidt. This was an entirely conclusory finding. The decision provides no explanation as to why the Committee found the evidence of Dr. Hopper and Ms. Schmidt to be credible or reliable.

[60] On this point, the Committee stated that it found that “Dr. Hanif misinterpreted Scully’s test results. Dr. Hanif, therefore, misdiagnosed Scully and recommended inappropriate treatment” (Schmidt Reasons, p. 6).

[61] The Committee next considered the question of whether Dr. Hanif had failed to recommend any further or any appropriate diagnostic tests or investigations. The entire discussion on this point is comprised of the following:

“We believe the evidence with respect to this allegation is not clear, cogent or convincing. With respect to the allegation of … failed to recommend any further or any appropriate diagnostic tests or investigations [sic]. We find that this allegation has not been proven” (Schmidt Reasons, p. 6).

[62] Following the above discussion of the individual elements of the paragraph 7 allegations, the Committee concluded as follows:

“We believe all 4 allegations in paragraph 7 are interconnected. After considering all the evidence, the prosecution has NOT convincingly proven all 4 allegations in paragraph 7. Our reading of the Statement of Allegations indicates that they are linked (i.e., one allegation flows from another) and since they have not proven all four we find the member not guilty of professional misconduct under subsection 17(1) of Ontario Regulation 1093 and specifically paragraph 2 (failing to maintain the standard of practice of the profession)” (Schmidt Reasons, pp. 6-7).

[63] There is simply no explanation given as to how or why the Committee saw the allegations as being “linked” in such a way that the misdiagnosis could not constitute professional misconduct, given the apparently clear finding that Dr. Hanif had in fact misdiagnosed Scully’s illness and recommended inappropriate treatment.

[64] The Committee did conclude, as indicated above, that the allegation that Dr. Hanif had failed to recommend any further or appropriate diagnostic tests or investigations had not been proven, but its reasons give no clue as to why or how this conclusion undermines its earlier finding that there had been a misdiagnosis and recommendation of inappropriate treatment. The fact that the Committee had specifically and approvingly referred to Dr. Yuill’s evidence that the failure to consider Cushing’s disease was a failure to uphold standards of practice, combined with the fact that there is no reference to any contrary evidence on this issue, renders this conclusion unintelligible.

[65] In oral argument, Mr. Abramson for Dr. Hanif emphasized that there was evidence to support Dr. Hanif’s position that he had recommended further diagnostic testing. With respect, this is beside the point, and in fact further weakens the respondent’s case, because it underlines the failure of the Committee to address evidence that was material to the issues. The fact that there was conflicting evidence on this issue emphasizes the deficiency of these reasons, which do not give any indication of how or why the Committee reached the conclusions it did, or why it chose to accept the evidence of some of the witnesses and not others. This is not a case where the record makes the result and the reasoning clear.

[66] Most glaring, however, is the assertion in the last paragraph that, based on its belief that all the allegations in paragraph 7 were interconnected, it could not find guilt on any of them unless it could find guilt on all of them, which led the Committee to acquit him on all the allegations after it declined to conclude that Dr. Hanif had failed to recommend further diagnostic testing or investigation. This conclusion is simply stated when the Committee asserts that “they are linked (i.e., one allegation flows from another)” (Schmidt Reasons, p. 7). It is not explained in any way. It is simply not possible to discern the legal, factual or logical grounds for this conclusion. Moreover, the conclusion is unreasonable, as the last sentence in the allegations states that he “also” failed to recommend appropriate diagnostic tests, indicating that this was a separate part of the allegation against him.

[67] The last part of the Schmidt Reasons addresses the allegation that Dr. Hanif had made inappropriate comments to Ms. Schmidt and hugged her when she had returned to his office to discuss the misdiagnosis. According to Ms. Schmidt, Dr. Hanif had acknowledged the misdiagnosis and asked for her forgiveness, “stating that she would [forgive him] ‘if she was a good Christian woman’” and that “if Ms. Schmidt did not forgive him he would lose all faith in ‘Christian women’ or words to that effect” (Schmidt Allegations, para. 9).

[68] The Committee concluded as follows on this allegation:

There was no clear evidence that allowed the committee to resolve this matter. In their individual testimonies, Ms. Schmidt’s assertion that the statements were spoken, is as forceful as Dr. Hanif’s insistence that he never used these words. Even if it could be proven that Dr. Hanif did in fact make this statement, the committee considers this remark to be inappropriate and not discriminatory” (Schmidt Reasons, p. 7).

[69] The problem with this finding is similar to the problems discussed above in relation to the Schilbe complaint relating to verbal and animal abuse. To the extent that the Committee resolved the issue on the basis that it was not sure who to believe, its conclusion did not sit well with its earlier statement that it found Dr. Yuill to be more credible than Dr. Hanif, and that it believed that Ms. Schmidt’s testimony was credible. It is, of course, trite to note that a fact-finder may conclude that a particular witness is credible or reliable with respect to some evidence but not other evidence. However, given its earlier comments on credibility, the Committee should have provided some explanation for its contrary conclusion on this issue.

[70] The other explanation for its conclusion – that “there was no clear evidence” – harkens back to the Committee’s Schilbe Reasons and the concern that the Committee thought that it could not, as a matter of law, find the allegation was substantiated in the absence of corroboration; McDougall, supra; OPSEU, supra; Tang v. College of Physicians and Surgeons of Saskatchewan, [1977] S.J. No. 128 (C.A.); Yellowknife (City) v. Gold Range Investments Ltd., [1997] N.W.T.J. No. 161 (S.C.). If that is what the Committee thought, it was a clear error of law that would require that the matter be sent back for rehearing; McDougall, supra; Tang, ibid.; X. v. British Columbia College of Teachers (2004), 135 A.C.W.S. (3d) 1061 (S.C.); Chopra v. Law Society of Alberta (1988), 1988 ABCA 56, 88 A.R. 312 (C.A.); Achiume v. College of Physicians and Surgeons of Ontario (1992), 60 O.A.C. 318 (Div. Ct.); A.B. v. College of Physicians and Surgeons of British Columbia (1994), 47 A.C.W.S. (3d) 413 (B.C.C.A.). The fundamental problem, however, remains that it is not clear why the Committee concluded that it could not find that the evidence given “allowed it to resolve” the allegation. The conclusion cannot be said to be reasonable. It is either wrong in law or, at best, unintelligible.

[71] A final problem lies with the Committee’s remark that, even if it had been proven that Dr. Hanif had made the statement, “the Committee considers this remark to be inappropriate and not discriminatory” (Schmidt Reasons, p. 7). The allegations did not assert that the remark was discriminatory. The allegation was that this remark constituted professional misconduct as conduct that was “disgraceful, dishonourable or unprofessional” or “unbecoming a veterinarian”, pursuant to paragraphs 44 and 45 of subsection 17(1) of Ontario Regulation 1093, R.R.O. 1990, under the Veterinarians Act, R.S.O. 1990, c. V.3. The Committee’s reasons give no explanation whatsoever to justify its conclusion, or assumption, that an inappropriate though not discriminatory remark would not constitute “conduct unbecoming”.

[72] For these reasons, read as a whole, the Schmidt Decision does not fulfill the “justification, transparency and intelligibility” standard of reasonableness as set out in Dunsmuir, supra, at para. 47.

[73] The Committee appeared to find in favour of Ms. Schmidt on the most serious allegations, and accepted the evidence of Dr. Yuill that Dr. Hanif’s conduct had violated the standard of practice in the profession. Its conclusion that all the allegations must be dismissed because it was not convinced on the allegation that he had not recommended further testing does not flow from the reasons the Committee did give.

[74] As discussed above, I conclude the deficiencies in the decision, including the lack of intelligibility of the reasons as well as the other problems such as the Committee’s approach to paragraph 7 of the allegations as discussed above have the cumulative effect of rendering the decision unreasonable.

[75] As with the Schilbe decision, I also conclude that the reasons are in themselves, inadequate with respect to the complaints concerning Dr. Hanif’s comments to Ms. Schmidt. In considering the adequacy of reasons, I apply the same legal principles as I have applied above in relation to the Schilbe decision; see Clifford, supra, paras. 29, 43. It is hard to think that Ms. Schmidt could have understood from these reasons why her complaint was dismissed. I find that the reasons, assessed functionally, and taking account of the fact that this was a lay tribunal, were not adequate.

Conclusion

[76] As discussed above, I conclude that the decisions in both the Schilbe and Schmidt cases fail to meet the justification, transparency and intelligibility standard as articulated in Dunsmuir, supra, para. 47 as a result of the cumulative effect of a number of deficiencies. While the Committee made some credibility findings, it did so in a conclusory manner and without reference to even the most material parts of the evidence led. It remains unclear, with respect to both complaints, whether the Committee was operating under the misapprehension that it could not find that a complaint was substantiated in the absence of corroboration, or whether it was reaching its conclusion on those allegations for some other (unarticulated) reason. Its conclusions do not consistently flow from the findings that it did make. Accordingly, I conclude that the decisions were unreasonable.

[77] As well, there are serious deficiencies in the reasons, especially in the Schilbe case, that arise to the level of a denial of natural justice. Unfortunately for Dr. Hanif, the appeal must be allowed, the decisions must be set aside, and both complaints must be remitted to a differently constituted Discipline Committee panel for new hearings.

[78] There will be no order as to costs.

HARVISON YOUNG J.

I Agree

SWINTON J.

I Agree

HERMAN J.

Released: February 28, 2011

CITATION: College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155

DIVISIONAL COURT FILE NO.: 525/09

DATE: 20110228

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, HERMAN AND HARVISON YOUNG JJ.

BETWEEN:

COLLEGE OF VETERINARIANS OF ONTARIO

Applicant

– and –

DR. KHAWAR HANIF

Respondent

REASONS FOR JUDGMENT

Harvison Young J.

Released: February 28, 2011