DIVISIONAL COURT FILE NO.: DC-16-047
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON and EDWARDS JJ.
BETWEEN:
DR. ALAA AZIZ
Appellant
– and –
COLLEGE OF VETERINARIANS OF ONTARIO
Respondent
COUNSEL:
Sophia E. Dunkley, for the Appellant
Bernard C. LeBlanc and Natasha S. Danson, for the Respondent
HEARD at Brampton: March 29, 2017
REASONS FOR DECISION
Overview
1Dr. Aziz (the “Appellant”) appeals the findings of professional misconduct, as well as the penalty and cost orders made by a panel of the Discipline Committee (the “Committee”) of the College of Veterinarians of Ontario (the “College”).
2The Committee found the Appellant guilty of five of the six allegations that he was facing. As to penalty the Committee ordered that the Appellant be suspended for four months; they imposed a condition and limitation prohibiting the Appellant from being alone with a female client or a female staff person for a period of one year; and ordered that the Appellant pay costs fixed in the amount of approximately $94,000.
The Facts
3The Appellant, who was born in Egypt and speaks English as a second language, was registered as a veterinarian in Ontario as of July 2007. He opened his practice at the Aquitaine Animal Hospital (the “Hospital”) in 2007. Amongst the various employees who worked for him was an individual who this Court will refer to as J.F. She worked for the Appellant from February through May 2009, and thereafter resumed her employment in 2010 until she resigned on January 13, 2012.
4On May 12, 2010, the Appellant was arrested and charged with two counts of sexual assault on two female staff members at his hospital. He eventually pleaded guilty to the lesser and included offence of assault. When he pleaded guilty on February 22, 2012 before McLeod J., he was asked whether he needed an interpreter, to which he indicated “No”. His counsel at the time of the entering of the plea also indicated that the Appellant did not require an interpreter.
5McLeod J. granted the Appellant a conditional discharge and imposed a one year period of probation, one of the terms of which required the Appellant to take a rehabilitative program for sensitivity. The program, which he successfully completed with the Elizabeth Fry Society, was filed before the Committee as Exhibit 7.
6On September 1, 2010, the College Registrar directed one of the College’s investigators to conduct an investigation arising out of the Appellant’s criminal assault case. A subsequent complaint was filed against the Appellant with the College Registrar related to surgery performed on a cat (“M.M.”) on February 8, 2011.
7As a result of the investigation the College alleged that the Appellant obstructed its investigation, suppressed evidence in relation to the criminal proceedings and had pled guilty to and been found guilty of two counts of assault.
8A notice of hearing was issued on February 25, 2014, and was served on the Appellant shortly thereafter. Appended to the notice of hearing was a statement of allegations relating to the obstruction of the College investigation as it related to M.M., as well as the suppressing of evidence as it related to the two charges of sexual assault.
9Subsequent to the service of the notice of hearing, the Appellant was served with a three volume disclosure brief. A preconference memorandum outlining the case for the College was served on the Appellant on September 26, 2014, and a prehearing conference was held on October 21, 2014, at which time hearing dates were set for three days commencing March 17 through March 19, 2015.
The Evidence Before the Committee and its Findings
10The Appellant did not testify at the hearing. In relation to the first complaint as it related to the criminal charges, J.F. testified before the Committee that the Appellant had approached her and requested a witness statement for purposes of his defence to the criminal charge relating to A.A. The essence of J.F.’s evidence before the Committee was that after drafting an initial account, the Appellant instructed her to draft an exculpatory statement and required that she re-write her statement at least once, until the Appellant was satisfied with it.
11As it relates to the second complaint concerning M.M., the essence of J.F.’s evidence was that the Appellant also requested that she re-write a statement for the purposes of the College’s investigation as it related to the Appellant’s management and treatment of M.M. During the course of the College investigation of the second complaint, it was determined that the Appellant had destroyed or otherwise suppressed an account of events prepared by J.F., and in its place the Appellant had J.F. draft a statement that contained false information which was favourable to him.
12The Committee found J.F. to be a credible person and in their reasons, amongst other things, stated:
…The evidence she provided is reasonable and probable. Furthermore, of importance to the panel was the fact that this witness had no vested interest in the outcome of the hearing as she was not the subject of any abuse, nor was she in the employ of Dr. Aziz. She had even thanked Dr. Aziz in her letter of resignation for what he had taught her. The entirety of the evidence she presented was not contradicted by any other witness.
13The Committee found the Appellant guilty of professional misconduct because he had obstructed the College investigation, had suppressed evidence in relation to the criminal proceeding and had pled guilty to and been found guilty of two counts of assault.
14After hearing submissions, the Committee imposed the following penalties:
(a) A reprimand in front of the Committee;
(b) A four month suspension of his license (less one month upon the successful completion, at the Appellant’s own expense, of a boundary and ethics course); and
(c) A one year prohibition from being alone with a female client or female auxiliary.
The Issues Raised on Appeal
15The Appellant exercised his right of appeal pursuant to s. 35(1) of the Veterinarians Act, R.S.O. 1990, c. V. 3 (the “Act”), which allows for an appeal on a question of fact or law, or both, to the Divisional Court. The Divisional Court, pursuant to s. 35(3) of the Act, may affirm or rescind the decision of the Committee.
16The Appellant raises six issues, four of which relate to the Committee’s finding of guilt and two of which related to penalty and costs. The issues raised are as follows:
Was the procedure of the Committee fair in light of the language barriers;
Was the procedure of the hearing fair in light of the lack of notice provided to the Appellant regarding J.F. as a witness;
Was it reasonable for the Committee to find J.F. credible;
Was the multiple convictions rule offended;
Are the liability and penalty awards reasonable; and
Is the cost award reasonable in light of the totality principle?
The Standard of Review
17The Committee was tasked with finding whether the Appellant engaged in professional misconduct. In doing so, it applied the regulation pertaining to professional misconduct issued under the Act to the evidence before it. The determination of what constitutes professional misconduct falls within the specialized expertise of the Committee and is reviewable on a standard of reasonableness. Similarly, the standard of review of a penalty decision imposed by a discipline committee of a professional regulatory body such as the College is reasonableness (see Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 42).
18The Appellant also raises issues of procedural fairness. If a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather, it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
19The standard of review of a costs award made by the discipline committee of a professional regulatory body is one of considerable deference, and this Court should only set aside a costs award on appeal if the committee made an error in principle or was plainly wrong (see Law Society of Upper Canada v. Kenneth James, 2016 ONSC 3246 (Div. Ct.), at para. 2).
First Issue
Was the procedure of the Committee hearing fair in light of the language barriers?
20The Appellant was represented by a paralegal licensee (the “legal representative”) in the proceedings before the Committee up and until the Committee found him guilty of professional misconduct. Both the Appellant and his legal representative did not speak English as their first language. The Appellant argues that the language barrier made it difficult for the Committee to understand his position and for the Appellant to appreciate the legal proceedings and their context. He argues that the Committee had the obligation to determine whether or not the services of an interpreter should have been provided.
21The Appellant never requested an interpreter during the proceedings before the Committee. As previously noted, when asked by McLeod J. at the time of entering his plea of guilty to the criminal charges, the Appellant acknowledged that: 1) he did not need an interpreter and 2) that he spoke English.
22A comprehensive review of the transcript of the proceedings before the Committee makes abundantly clear that the legal representative spoke English, but perhaps without the same degree of clarity and ability to communicate if English were his first language. The legal representative is licensed by the Law Society of Upper Canada. The Law Society of Upper Canada’s Paralegal Rules of Conduct, specifically Rule 3.02(23), requires that a paralegal be proficient in English or French. The Appellant is a licensed veterinarian. A similar provision with respect to language proficiency governs the Appellant as a licensed veterinarian (see s. 3(1)(b) of R.R.O. 1990, Reg. 1093).
23The Appellant argues that the Committee had an obligation to determine whether or not the services of an interpreter should have been provided. The Canadian Charter of Rights and Freedoms (the “Charter”) provides in s. 14:
A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. [Emphasis added]
24Section 14 of the Charter does not directly apply, as the hearing before the Committee was not criminal in nature. Rather, the interpreter issue is one of procedural fairness. I nonetheless consider the Charter jurisprudence as instructive on this issue. The framework for analysis to be applied when it is suggested there has been a breach of s. 14 of the Charter was set forth by the Supreme Court of Canada in R. v. Tran, 1994 56 (SCC), [1994] 2 S.C.R. 951 as follows (at p. 979):
First, it must be clear that the accused was actually in need of interpreter assistance – i.e., that he or she did not understand or speak the language being used in court. Although the ultimate burden of proof in establishing the required level of need rests, of course, on the party asserting that he or she has suffered a violation of his or her s. 14 rights, it is important to appreciate that the right to interpreter assistance is not one which must necessarily have been invoked or asserted in order to be enjoyed. As part of their control over their own proceedings, courts have an independent responsibility to ensure that those who are not conversant in the language being used in court understand and are understood. Accordingly, unless the issue of interpretation is only being raised for the first time on appeal and/or there is some question as to whether the right is being asserted in bad faith, establishing “need” will not normally be an onerous step.
25The Appellant in this case did not testify and, as such, there is little to no evidence available to this Court to determine his ability to speak English and/or his need for an interpreter. A review of the transcript of the proceedings before the Committee establishes that at no time did his legal representative ever request an interpreter on behalf of the Appellant, nor did the Appellant himself request the assistance of an interpreter. In essence, the argument before this Court on appeal focused in on the ability of the legal representative to speak English and to communicate and express his thoughts to the Committee.
26In the context of a criminal matter, it is clear that s. 14 of the Charter applies to a “party” or “witness”. It is equally clear from a review of Tran, supra, that the right to and need for an interpreter is that of a party or a witness. The legal representative, to state the obvious, was neither a witness nor a party. The Appellant has provided no jurisprudence to suggest that where counsel appears before a Tribunal or Court lacking in proficiency in one of the two official languages, that the Court or Tribunal has an obligation to enquire as to whether counsel requires the assistance of an interpreter. This, frankly, is a matter of common sense, as the Court and/or Tribunal is entitled to take judicial notice of the fact that a lawyer and/or paralegal licensee is obliged, pursuant to their governing statutes, to be proficient in one or other of the official languages.
27The Appellant chose the particular legal representative as the individual in whom he clearly had confidence to represent him in the proceedings before the Committee. The individual was his counsel of choice. If the Appellant had any issues as he sat throughout the proceedings before the Committee with respect to his legal representative’s ability to advocate on his behalf, he had an obligation to draw such concerns to the Committee’s attention at the earliest opportunity. There is no suggestion, from my review of the transcript, that the Appellant ever did so. I would not give effect to this ground of appeal.
Second Issue
Objection to J. F. testifying
28At the commencement of the hearing, the Appellant’s legal representative argued that J.F. should not be permitted to testify because the College had not given him a witness list prior to the hearing. In essence, he suggested that he was caught by surprise when J.F. was called as the first witness before the Committee.
29In her factum counsel for the Appellant relies on s. 18.3(4)(c) of the Act, which provides that evidence against a member is not admissible at a hearing or a review unless the member is given, at least 10 days before the hearing to review, in the case of evidence of a witness, the identity of the witness. However, s. 18.3(4) of the Act only applies to proceedings before the Health Professions Appeal and Review Board arising out of decisions made by either the registration committee or the accreditation committee, but not to hearings before the discipline committee. As such, there is no statutory obligation on either party to produce a list of witnesses before the disciplinary hearing.
30Counsel for the Appellant argues that the Appellant’s legal representative did not have the opportunity to adequately prepare to conduct an effective cross-examination of J.F. Counsel correctly argues that the right to cross-examine is fundamental to the fairness of the Appellant’s hearing.
31I see no merit to this argument. Anyone reading the notice of hearing and the statement of allegations appended to the notice of hearing would readily have appreciated that J.F. was front and centre with the respect to the College’s allegations relating to the obstruction of the College investigation and the possible suppression of evidence at the criminal proceedings. Without J.F., the College simply could not prove its case as against the Appellant with respect to the allegations set forth in paragraphs two, three, four, five and six of the statement of allegations. The Appellant could not have been caught by surprise with respect to J.F. being called by the College as one of its witnesses.
32Despite the fact that the legal representative suggested to the Committee that he was caught by surprise and therefore was not properly prepared to cross-examine J.F., the Committee exercised its discretion and gave him two hours between the time when J.F. had testified in-chief and when the legal representative would have to commence his cross-examination. The cross-examination commenced some time after 4:00 p.m. on the first day of the hearing and continued until sometime just prior to 6:00 p.m. The legal representative had not completed his cross-examination at the end of the first day and, as such, he would have had the evening to further prepare to complete the cross-examination of J.F. on the second day of the hearing. It is also worth noting that after the two hour adjournment, he indicated to the Committee that he was ready to proceed with his cross-examination and did so at some considerable length. There is no merit to the argument raised with respect to the Appellant’s objection concerning J.F. testifying.
Third Issue
Was it reasonable for the Committee to find J.F. a credible witness?
33The Appellant argues that the Committee failed to give any substantial particulars as to why they found J.F. credible, or why the evidence she provided was reasonable and probable without further explanation.
34The Committee provided detailed reasons with respect to why they found J.F. credible. The Committee had the opportunity to assess J.F. as a witness. The Committee noted the various occasions when J.F. openly admitted that her recall was not perfect. The Committee had nothing to contradict the evidence of J.F. The Appellant, as was his right, chose not to testify, and as such there was nothing in J.F.’s evidence which was contradicted by the Appellant himself.
35I see no merit to the concerns raised by the Appellant with respect to the Committee’s assessment of J.F.’s credibility.
Fourth Issue
Was the multiple convictions rule offended?
36The Appellant argues that the rule against multiple convictions for the same matter can be applied to similar allegations of professional misconduct heard by a discipline committee. In that regard, the Appellant argues that the following offend the rule against multiple convictions:
i. instead of being charged with and found guilty of one count of professional misconduct for destroying or otherwise suppressing an account of events regarding M.M., prepared by J.F., and replacing it with his own version of events, the Appellant was additionally charged with one count of “falsifying a record regarding professional services”, and one count of “providing false or misleading information to the College”;
ii. instead of being charged with and found guilty of one count of professional misconduct for destroying or otherwise suppressing an account of events prepared by J.F. regarding the Appellant’s criminal proceedings and replacing it with his own version of events, the Appellant was also charged with one count of “falsifying a record regarding professional services”;
iii. in addition to the charges set forth above, the Appellant was also charged under paras. 44 and 45 of s. 17(1) of O. Reg.1093. Professional misconduct is defined under s. 17 to include at para. 44 “an act or omission relevant to the practice of veterinary medicine that, having regard to the circumstances, would be regarded by members as disgraceful, dishonourable or unprofessional”, and at para. 45 to include “conduct unbecoming a veterinarian”.
iv. instead of being charged with and being found guilty of professional misconduct for having been found guilty of two counts of assault, the Appellant was also charged under paras. 44 and 45 of s. 17(1) of O. Reg. 1093.
37Counsel for the College argues that it has been long established that the same conduct can form the basis for more than one finding of professional misconduct. He correctly relies on Devgan v. College of Physicians and Surgeons of Ontario, 2005 2325 (ON SCDC), [2005] O.J. No. 306 (Div. Ct.), where at para. 93 Then J. stated:
Secondly, the Appellant contends in his factum that “by finding the Appellant guilty of both the specific offences as well as the basket clause set out in paragraph 7 of the Notice of Hearing, the Appellant was subjected to double jeopardy”. This submission must fail as in my view there has been no breach of the rule against multiple convictions. While the factual basis of the individual allegations, taken together, is the same as that of allegation (7), the constituent elements of the offences are different.
38In this case there are a number of counts of alleged professional misconduct that the Appellant was called upon to respond to. Each count had a separate basis upon which the Appellant could be found guilty of professional misconduct. The evidence before the Committee and the factual findings made by the Committee amply supported the separate basis for each count upon which the Appellant was ultimately penalized. There is no merit to the Appellant’s submissions that he faced double jeopardy.
Fifth Issue
Are the liability and penalty awards reasonable?
39Despite the reference to the reasonableness of the liability finding in this statement of the issues, the Appellant did not argue that the finding of professional misconduct was unreasonable aside from the grounds set out above. The focus of his concern was the reasonableness of the penalty and the costs order.
40The Appellant argues that the one year prohibition on female auxiliaries would be unduly onerous and impractical, and therefore the term is unreasonable. Specifically, counsel for the Appellant argues that it would be extremely difficult for the Appellant to staff his clinic with solely male auxiliaries, given the low number of male auxiliaries employed in the veterinary profession. It is also argued that it would be cost prohibitive for him to hire enough female staff such that he would never be left alone with a single female for an entire year.
41Counsel for the College correctly points out in his factum that the Committee did not provide for a one year prohibition on female auxiliaries. Rather, the Committee imposed a condition and limitation which would prohibit the Appellant from “being alone with a female client or a female staff person for a period of one year”.
42As to the practical impact of the order, counsel for the College correctly notes that this part of the Appellant’s argument is supported by job market data which was not filed in evidence before the Committee. There was no fresh evidence application brought before this Court and, as such, the argument made on behalf of the Appellant has no factual underpinning. Regardless of whether or not such factual underpinning could have been made out, either before this Court on a fresh evidence application or before the Committee, I see nothing unreasonable with the term, as it is clearly intended to protect the public and the staff of the Appellant’s clinic from the type of conduct that resulted in the criminal charges being laid against the Appellant in the first place.
43As to the period of suspension, I note that the four month suspension will be reduced to three months if the Appellant successfully completes a Boundary and Ethics course approved by the College registrar in advance. Assuming this course is successfully completed, then the Appellant is facing a suspension of three months, not four.
44In support of the position asserted on behalf of the Appellant, counsel suggests that the Appellant has more than adequately demonstrated his desire for rehabilitation, and that a two month suspension would sufficiently protect the public interest while serving as a deterrent to the Appellant and other members of the profession.
45A review of the reasons as they relate to penalty demonstrates that the Committee took into account, to the extent that it could, all mitigating factors, including the Appellant’s completion of the Elizabeth Fry program as part of the probationary terms of his conditional discharge, as well as the various so-called character letters that were filed in evidence as part of the penalty phase before the Committee.
46The period of suspension imposed by the Committee was reasonable, taking into account the various serious findings that were made in the case. The Appellant’s conduct could be viewed as a form of obstruction of justice insofar as he attempted to have J.F. alter her evidence. The findings of fact made by the Committee go directly to his suitability to practise veterinary medicine. They also call into question the public interest in ensuring that women, whether they be employees or members of the public, are adequately protected. The various issues that came before the Committee called into question the Appellant’s honesty, integrity, as well as his governability. The penalty imposed by the Committee was, in my view, within the range of reasonable outcomes.
Sixth Issue
Was the costs award reasonable?
47At the completion of the penalty phase of the hearing, the Committee sought submissions with respect to the College’s legal costs and expenses. In determining the question of costs, s. 30(6.1) of the Act provides:
In an appropriate case, the Discipline Committee may make an order requiring a member or former member who is found guilty of professional misconduct or of serious neglect by the Committee to pay all or part of the following costs and expenses:
The College’s legal costs and expenses;
The College’s costs and expenses incurred in investigating the matter;
The College’s costs and expenses incurred in conducting the hearing.
48It is clear from a review of s. 30(6.1) that the Legislature intended to differentiate between legal costs versus the costs and expenses that were incurred by the College, both with respect to the investigation of the matter as well as the actual conduct of the hearing.
49In support of its claim for costs, the College submitted affidavit evidence of Rose Robinson who is described in her affidavit as the “Principal, Investigations and Resolutions of the College of Veterinarians of Ontario”. Attached to her affidavit was a bill of costs which itemized the legal costs incurred by the College, as well as the costs incurred by the College in investigating the matter and conducting the hearing. In her initial affidavit sworn April 30, 2015, the College costs were broken down as follows:
a) Prosecution costs of approximately $102,000;
b) Independent legal counsel, approximately $36,000;
c) Fees for the panel attendance, including meals and hotel, approximately $11,000; and
d) Fees for the court reporters, approximately $3,800.
Total: approximately $154,000.
50During the course of the proceedings, counsel for the College had provided the Appellant’s legal representative with a breakdown of the fees as they were being incurred. As such, the Appellant would have been apprised of the costs that were being incurred by the College on an ongoing basis and his exposure to paying the College’s costs as provided for in s. 30(6.1) of the Act.
51Counsel for the Appellant did not take issue with the specifics of the bill of costs. Rather, she argues that the costs which the Appellant has been ordered to pay, in the amount of approximately $94,000, are excessive in consideration of the other penalties imposed on the Appellant. As well, it is argued that the costs will create a significant financial burden for the Appellant, together with the additional costs that will result from the penalty imposed against him. In that regard, it is noted that during the period of the Appellant’s four month suspension he may be required to incur the cost of a locum. He will also potentially incur the cost of the loss of clientele, as well as the cost of hiring additional staff in light of the condition that he not be alone with a female staff or client. It is also argued in the Appellant’s factum that he will no longer be eligible for professional liability insurance. There was no evidence before the Committee, and no evidence was filed before this Court with respect to the Appellant’s possible ineligibility for professional liability insurance, and I attach no weight to that submission.
52In her submissions on penalty before the Committee, the Appellant’s lawyer, Ms. Dunkley, filed an unaudited financial statement of the Appellant. No other evidence was filed by the Appellant with respect to his ability to pay the costs sought by the College. The Committee was not persuaded by the evidence that the Appellant did not have an ability to pay and explained why. That conclusion was reasonable.
53The amount of costs awarded was reasonable having regard to all of the relevant factors, including the Respondent’s substantial success and the considerable amount of time and expense that resulted from the manner in which the Appellant’s legal representative conducted the hearing. A hearing originally anticipated to last three days extended into eight days, largely because of the conduct of the Appellant’s legal representative. The Committee’s conclusion on costs was within a reasonable range. I see no error in principle with respect to the Committee’s award of costs.
Conclusion
54The Committee reached a reasonable decision on the merits with respect to both penalty and costs. There was no procedural unfairness in the conduct of the proceedings. For the reasons set out above, the appeal is dismissed. Costs of the appeal are fixed in the amount of $12,500, an amount agreed upon by the parties, payable by the Appellant within 30 days.
Edwards J.
I agree ______________________________
Kiteley J.
I agree ______________________________
Swinton J.
Released: May 9, 2017
CITATION: Aziz v. College of Veterinarians of Ontario, 2017 ONSC 2746
DIVISIONAL COURT FILE NO.: DC-16-047
DATE: 20170509
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, SWINTON and EDWARDS JJ.
BETWEEN:
DR. ALAA AZIZ
Appellant
– and –
COLLEGE OF VETERINARIANS OF ONTARIO
Respondent
REASONS FOR DECISION
Edwards J.
Released: May 9, 2017