Khahra v. College of Veterinarians of Ontario

CITATION: Khahra v. College of Veterinarians of Ontario, 2016 ONSC 4692 DIVISIONAL COURT FILE NO.: 322/16 DATE: 20160720

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: DR. SURINDER KHAHRA, Moving Party - AND - College of Veterinarians of Ontario, Responding Party

BEFORE: Swinton J.

COUNSEL: Karen E. Jolley and Krista Bulmer, for the Moving Party Bernard C. LeBlanc and Maria Eugenia Brunello, for the Responding Party

HEARD at Toronto: July 19, 2016

ENDORSEMENT

Overview

[1] The Moving Party, Dr. Surinder Khahra, has brought a motion seeking an order extending the time to file a notice of appeal of a decision of the Discipline Committee of the College of Veterinarians of Ontario (“the College”) and, if leave is granted, a stay of the decision pending the disposition of his appeal.

[2] For the reasons that follow, I would dismiss the motion, as the test for granting an extension of time to file a notice of appeal has not been met.

Background

[3] Between June 2014 and August 2015, the College referred four series of allegations of professional misconduct against the Moving Party to the Discipline Committee. At a hearing on March 29, 2016, the Discipline Committee found that the Moving Party had engaged in professional misconduct. It did so based on an Agreed Statement of Facts. The Discipline Committee accepted a joint submission on penalty. It imposed a reprimand that day, after the Moving Party waived his right to appeal. It also imposed a suspension of six months, to commence July 1, 2016, that could be reduced to three months if the Moving Party carried out certain conditions.

[4] The Moving Party did not appeal the decision within the 30 day appeal period. In late June his present counsel (who was not counsel at the time of the hearing) asked the College for an extension of the time for the suspension to start. The College informed the Moving Party that it had no authority to extend the date. The suspension started July 1, 2016.

[5] The Moving Party brought the present motion on an urgent basis in early July. He seeks to appeal the decision of the Discipline Committee on the basis that the settlement agreement should be set aside because he did not enter into the agreement voluntarily.

Whether an extension of the time to file a notice of appeal should be granted

[6] The test for an extension of time to file a notice of appeal is well-established. The Court should consider a number of factors:

1. Whether the moving party formed an intention to appeal in the relevant appeal period
2. The length of the delay and the explanation for the delay
3. Any prejudice to the responding party
4. The merits of the appeal
5. Whether the “justice of the case” requires an extension.

(See for example, Byers (Litigation Guardian of) v. Pentex Print Masters Industries Inc. (2003), 62 O.R. (3d) 647 (C.A.) at paras. 46-47.)

Intention to appeal

[7] The Moving Party has not established that he formed an intention to appeal in the relevant appeal period. Indeed, he expressly waived his right of appeal at the time of the Discipline Committee hearing, which allowed the Committee to impose a reprimand immediately.

[8] While he asserts in an affidavit that he intended to appeal, the evidence is to the contrary. For example, in his own email of April 7, 2016 to then counsel, Mr. Honickman, he spoke of his difficulty in finding a replacement to run his clinics and asked if they could negotiate with the College to reduce the suspension and pay a fine. There is no mention of an appeal, nor any suggestion that he did not accept the consequences of the finding of professional misconduct.

[9] When his present counsel first contacted the College in an email dated June 28, 2016, she stated that the immediate concern was the start date for the suspension and asked that it be moved to September 1, 2016. She does mention the right to appeal, but states that the Moving Party would prefer not to take that route if an extension could be granted.

[10] In my view, the Moving Party did not form an intention to appeal in the relevant period. I believe he formed the intention to appeal in late June or early July after the request to delay the suspension was rejected by the College.

Length of delay and the explanation for it

[11] The delay is about two months after the deadline, and so it is not overly long.

[12] The Moving Party attributes the delay to lack of communication from Mr. Honickman and the need to find new counsel. He states that Mr. Honickman was not responsive to requests to communicate during April. He sought new counsel in May and retained his present counsel sometime in late June.

[13] I do not find the explanation for the delay reasonable. It is not clear when the Moving Party ceased to have Mr. Honickman represent him. There is an email exchange between Mr. Honickman and Mr. LeBlanc, counsel for the College, around April 30, 2016, which suggests that Mr. Honickman is still acting for the Moving Party. In one email, Mr. Honickman expresses concern about a possible breach of a publication ban concerning the Discipline Committee decision.

[14] Despite requests from the College, the Moving Party has refused to disclose emails from the Moving Party or his son Ken to Mr. Honickman, even though the emails are referenced in the affidavit, except for the email dated April 7, 2016 asking if the terms could be renegotiated.

[15] In any event, even if the Moving Party terminated the relationship with Mr. Honickman, he does not indicate when nor why it took so long to find a new lawyer. He is an educated man, who had retained two other lawyers to represent him during the course of this disciplinary proceeding. His son is a lawyer. If there were truly an interest in pursuing an appeal, one would have expected action sooner, especially given the grounds for the proposed appeal – namely, that the guilty plea should be set aside because it was not voluntary.

[16] In my view, an appeal was not a priority for the Moving Party until he retained new counsel in late June. I find that his explanation for the delay is not reasonable.

The merits of the case

[17] I will discuss prejudice in relation to the justice of the case, after I consider the merits of the appeal.

[18] My task is not to determine the merits, but to decide whether there is so little merit that the Moving Party should be denied the right to appeal. As Weiler J.A. stated in Paulsson v. Cooper, 2010 ONCA 21, [2010] O.J. No. 123 (C.A.) at para. 5, the question is whether the appeal “has any real chance of success” (at para. 5).

[19] The Moving Party has not filed a draft Notice of Appeal, which would have assisted in an assessment of the merits of the appeal by specifying the grounds of appeal.

[20] At the hearing of this motion, his counsel explained the basis for the appeal: the Moving Party did not voluntarily enter into the Agreed Statement of Facts and the joint submission on penalty. First, he was severely stressed by the very serious illness of his son from mid-March, as set out in his affidavit. Second, he was under duress because Mr. Honickman indicated on March 28, the day before the Committee hearing, that he would not represent the Moving Party at the hearing unless a Declaration to Plead Guilty was signed. The Moving Party states that he signed the Agreed Statement of Facts and joint submission on March 29 because he could not face a hearing where he would have to act alone, and he was not told of his right to seek an adjournment.

[21] Counsel stated that the Moving Party does not take issue with the propriety of Mr. Honickman’s conduct or the quality of the legal advice he received. Rather, the Moving Party argues that the pressure from Mr. Honickman’s threat to withdraw amounted to duress in the circumstances, given the personal stress he was under. In other words, it is the impact on him that is in issue.

[22] Both parties relied on cases from the criminal context that establish a number of principles respecting guilty pleas. First, a person seeking to challenge the validity of a guilty plea has the onus of proof. Second, a plea will be valid if it is voluntary, unequivocal and informed. Third, where an individual claims that he suffered anxiety or stress or pressure, he must provide “credible and competent testimony” that his mental state affected his ability to make a voluntary choice (R. v. R.T. (1992), 10 O.R. (3d) 514 (C.A.) at p.5 (Quicklaw version)).

[23] The Moving Party has provided no medical evidence to support his claim that he was so stressed that he did not voluntarily consent to the Agreed Statement of Facts and the joint submission on penalty when he signed them. All he has provided is his own affidavit expressing how he felt at the time.

[24] This is in contrast to the decision in Law Society of Upper Canada v. Coady, 2005 ONLSHP 3, which is relied upon by the Moving Party. Ms. Coady provided two reports from psychologists treating her around the time she entered into an Agreed Statement of Facts and an agreement to resign. This evidence satisfied the majority of a Hearing Panel that the agreement was not entered voluntarily. In contrast, in the present case, there is no supporting medical evidence about the effect of stress on the Moving Party to show that he did not voluntarily enter into the agreement with the College.

[25] It is important to put the settlement agreement into context. Negotiations between the College and Mr. Honickman had been proceeding since about mid-February in the hope of achieving a global settlement. The Moving Party was given information about the progress of the negotiations around March 9 (and presumably at earlier stages), and in his affidavit he explained his concerns about certain proposed terms to his counsel. He actually signed the settlement documents twice – once on March 16 and again on March 29.

[26] The Moving Party argues that he was subject to duress when he signed on March 29 because Mr. Honickman said he would not provide representation at the hearing without a signature on the Direction to Plead Guilty. However, there is no evidence of any pressure against him when he signed March 16 that would render his consent involuntary.

[27] Moreover, the Moving Party has provided no legal authority in which a guilty plea was vitiated because counsel got off the record in circumstances such as these. I note that counsel does not suggest any impropriety by Mr. Honickman.

[28] I do not accept counsel’s submission that the Coady case turns in any way on counsel’s behaviour. The Hearing Panel majority framed the issue before it as whether Ms. Coady resigned voluntarily, “considering the medical evidence” (at para. 7). The findings there were based on the medical evidence and the particular stresses Ms. Coady was experiencing (at paras. 29-31).

[29] There is no question that the Moving Party was experiencing a very stressful situation as the hearing date approached. His son was very ill. However, the settlement negotiations had been ongoing, and he was represented by experienced counsel. He is an educated man who must have understood the consequences of what he was doing.

[30] The Discipline Committee took pains to ensure that the Moving Party was acting voluntarily (see pp. 2 through 5 of the transcript). He was explicitly asked if he voluntarily decided to admit the allegations and he said yes. He was also asked whether he agreed to the allegations in the Agreed Statement of Facts and he admitted them. He also waived his right of appeal that day so that the Committee could impose the reprimand portion of the penalty.

[31] If the Moving Party considered that the settlement agreement was not voluntary and should be set aside, one would expect him to put the College on notice. Instead, the record shows that he accepted the penalty and was making efforts to prepare for the suspension. The College was not informed of the possibility of an appeal until late June and first told of the grounds of appeal – that the Moving Party’s agreement to the settlement was not voluntary – in early July.

[32] Having regard to the lack of medical evidence, the way in which the settlement agreement occurred and the Moving Party’s subsequent conduct, I am of the view that there is very little likelihood that an appeal would succeed on the basis that he did not enter the settlement agreement voluntarily.

Prejudice and the justice of the case

[33] With respect to prejudice, the College argues that there will be prejudice to the public interest if the extension is granted here – in particular, because such an order will undermine the public’s confidence in the efficacy of the professional regulatory system. This argument is linked to the consideration of the interests of justice in this case.

[34] The Moving Party argues that the interests of justice favour granting an extension, as the delay has not been long and he should be given an opportunity to appeal, given the significant implications for reputation and financial interests when a regulatory body finds professional misconduct.

[35] In my view, the interests of justice do not weigh in favour of granting an extension. This is not like other cases relied upon by the Moving Party where an extension was granted. In Byers, above or Fraser v. Canerector Inc., 2015 ONSC 7519, for example, decisions of judges were under appeal. Those appeals raised arguable issues for consideration on appeal. Here, in contrast, the Moving Party is seeking to set aside his own admissions of professional misconduct and a penalty to which he agreed. It is unlikely he would succeed in proving that the agreement was not voluntary based on the record.

[36] Moreover, there is a public interest in the finality of decisions. Here, the decision was based on a settlement. The Discipline Committee took reasonable steps to ensure the Moving Party voluntarily accepted the Agreed Statement of Facts and the joint submission on penalty. The Moving Party had experienced counsel at the hearing. He waived his right to appeal. He took no steps to appeal within the appeal period. In the circumstances, the College reasonably assumed the decision of the Discipline Committee was conclusive. It took the steps it normally does in a case of suspension to inform stakeholders and the public of the suspension. This is done, in part, to ensure that a suspended member cannot obtain controlled substances. In my view, public confidence in the efficacy of the professional regulatory system would be eroded if this appeal were allowed to proceed.

[37] Having regard to all the factors listed above, I conclude that this is not a case where it is in the interests of justice to grant an extension. The motion to extend time to file a notice of appeal is dismissed. Accordingly, I need not deal with the request for a stay.

[38] If the parties cannot agree on costs, the College shall provide brief written submissions within 21 days of the release of this decision, and the Moving Party shall provide a response within 21 days thereafter. All submissions shall be made through the Divisional Court Office.

Swinton J.

Date: July 20, 2016