Citation and Parties
Citation: Khawar Hanif v. College of Veterinarians of Ontario, 2017 ONSC 497 Divisional Court File No.: 553/13 Date: 2017-05-12
Ontario Superior Court of Justice Divisional Court Nordheimer, Stewart and Labrosse JJ.
Between: Khawar Hanif, Appellant – and – College of Veterinarians of Ontario, Respondent
Counsel: Karen Jolley, for the Appellant Bernard C. LeBlanc and Erica Richler, for the Respondent
Heard at Toronto: January 12, 2017
Reasons for Decision
Stewart J.
Nature of the Appeal
[1] Dr. Khawar Hanif appeals the decision of the Discipline Committee of the College of Veterinarians of Ontario (the "College") that (a) found him guilty of professional misconduct, (b) imposed a penalty upon him of a reprimand and a suspension of his licence on conditions, and (c) ordered him to pay costs of the hearing to the College in the amount of $73,000.00. Dr. Hanif asks that the decision be set aside in its entirety and that no aspect of it be sent back for a new hearing. Effectively, he seeks an order replacing the College's decision with a dismissal of all allegations and charges against him.
[2] The College takes the position that the decision of the Discipline Committee under appeal is reasonable and that the process before the Discipline Committee discloses no unfairness or denial of natural justice to Dr. Hanif. As a result, the College argues that the decision should be upheld.
Jurisdiction
[3] An appeal from a decision of the College's Discipline Committee lies to the Divisional Court pursuant to s. 35(1)(a) of the Veterinarians Act, R.S.O. 1990, c.V.3 (the "Act").
Standard of Review
[4] Although the language of section 35(1)(a) of the Act appears to provide the court with very broad powers of review on appeal, the prevailing authorities that have interpreted and applied this section and similar provisions contained in professional regulatory statutes establish that the standard of review on appeal is nevertheless one of reasonableness (see: Smith v. College of Physicians and Surgeons of Ontario, 2006 7282 (Div.Ct.); Kennedy v. College of Veterinarians of Ontario, 2010 ONSC 3622 (Div.Ct.)). Accordingly, Dr. Hanif must show that the decision appealed from is unreasonable if he is to succeed on this appeal.
[5] An exception to the reasonableness standard on appeal is an allegation of unfairness or denial of natural justice. Such an issue attracts no specific standard of review. It will be for the Court to determine whether the requisite level of procedural fairness has been accorded to Dr. Hanif in the circumstances (see: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817).
Background
[6] The decision under appeal is the outcome of a re-hearing of allegations of professional misconduct arising from Dr. Hanif's assessment and treatment of a cat named Cleo owned by Jennifer Schilbe and of a dog named Scully owned by Susan Schmidt.
[7] The original hearing of the allegations regarding Dr. Hanif's involvement with these animals and their owners took place over several days between 2008 to 2010. Following that hearing, the Discipline Committee panel found Dr. Hanif guilty of only one aspect of the Schilbe (Cleo) allegations. The charges relating to the Schmidt (Scully) allegations were all dismissed.
[8] The College appealed that decision.
[9] On February 28, 2011 the Divisional Court allowed the College's appeal. The Discipline Committee panel's decision was set aside and the entire matter was remitted to a differently-constituted panel for a new hearing.
[10] The second hearing took place in 2012 and 2013 over some 20 days. Many procedural and other matters were the subject of pre-hearing motions made by Dr. Hanif as well as motions made to the panel at the hearing itself. Several witnesses, including expert witnesses, gave evidence at the hearing.
[11] At the conclusion of the second hearing, the majority of the Discipline Committee panel members found Dr. Hanif guilty of professional misconduct arising out of some of the allegations relating to both the Schilbe and Schmidt complaints, imposed a penalty and ordered costs to be paid to the College by him. One member of the panel dissented in strongly-worded reasons from the findings of professional misconduct made by the majority and from the decision on both penalty and costs.
Schilbe (Cleo) Charges
[12] As mentioned, some of the charges against Dr. Hanif addressed at the hearing arise from Dr. Hanif's assessment and treatment of Schilbe's cat, Cleo. The facts outlined below relate primarily to those relevant to the findings under appeal.
[13] On August 2, 2006 Schilbe took Cleo to see Dr. Hanif for an examination. Schilbe testified that she had recently found the cat and wanted a blood test done to ensure that it was safe to introduce Cleo to her other cats.
[14] Schilbe stated that, when Cleo became uncooperative during the examination, Dr. Hanif roughly grabbed the cat and hit her on the face repeatedly with 8 to 10 hard slaps with his hand and also hit her with a tongue depressor. Schilbe said she was shocked and upset by this behaviour.
[15] Cleo did not suffer any physical trauma, bleeding or broken teeth as a result of this alleged conduct.
[16] Although Dr. Hanif admitted picking Cleo up by the scruff of her back, he denied ever hitting her. He stated that he simply restrained her for examination as he would do with any fractious kitten.
[17] Two veterinarians called by the College gave expert opinion and testified that hitting a cat in the way described by Schilbe, if it occurred, is unacceptable and not within the standard of practice expected of a veterinarian.
[18] Schilbe also testified that Dr. Hanif recommended against doing any blood tests on Cleo despite her request that he do so. Schilbe said that Dr. Hanif told her that if Cleo was sick her cats already would have been infected so there was no point in testing her.
[19] All of the experts in veterinary medicine who gave evidence at the hearing agreed that such a statement, if made by Dr. Hanif, would be inappropriate and would show insufficient medical knowledge on his part.
[20] Dr. Hanif denied having told Schilbe that there was no point in doing blood work. Rather, Dr. Hanif swore that Schilbe requested that only a saliva test be done. He stated that he offered to perform blood work on Cleo instead but Schilbe refused because it was too expensive.
[21] Schilbe said that the cost of the blood work was not an issue for her. She took Cleo that same day to another veterinarian, Dr. Bill Cox, who performed the necessary blood work on Cleo. Schilbe paid for the service provided by Dr. Cox.
[22] Dr. Cox gave evidence at the hearing. His evidence as to what he was told by Schilbe about what had happened earlier in Dr. Hanif's office contradicted Schilbe's description in several material respects.
[23] The Discipline Committee panel found that Dr. Hanif had engaged in professional misconduct by hitting Cleo in the face with his hand, telling Schilbe that if Cleo was sick she had already passed disease on to her other cats so there was no point in testing her, and failing to appreciate that he ought to have tested Cleo's blood for feline leukemia and feline immune deficiency virus.
[24] The several other allegations involving Cleo were found to have been not proven and were dismissed.
Schmidt (Scully) Charges
[25] The balance of the charges against Dr. Hanif arise from Dr. Hanif's assessment and treatment of Schmidt's dog, Scully.
[26] On September 15, 2016 Schmidt brought Scully to see Dr. Hanif who had been Scully's veterinarian for approximately 10 years.
[27] Schmidt reported that Scully had been urinating in the house and consuming copious amounts of water for three or four days.
[28] Dr. Hanif performed blood and urine tests, which he reported to Schmidt as showing kidney malfunction. He recommended that Scully be put on a special kidney management diet.
[29] On September 19, 2006 Dr. Hanif spoke to Schmidt and was told that the kidney management diet appeared to be of little help. Scully was now panting for breath, getting weaker and was in a lot of pain.
[30] Schmidt testified that Dr. Hanif advised her at that time and during that conversation that Scully was in kidney failure. He said Scully's death was imminent and that euthanasia would have to be considered. Schmidt was extremely distraught at the thought of having to euthanize Scully.
[31] On September 22, 2006, Schmidt brought Scully to the Kingston Animal Hospital ("KAH") for a second opinion as to his condition and diagnosis, and for possible euthanasia.
[32] Dr. Hanif sent Scully's records to the KAH by fax as requested by Dr. Jennifer Hopper, the veterinarian at KAH who saw Scully. Dr. Hopper testified that Dr. Hanif called her and expressed his opinion to her that Scully was in renal (kidney) failure.
[33] Dr. Hanif denied having told either Schmidt or Dr. Hopper that Scully was in kidney failure.
[34] Dr. Hopper assessed Scully and did not share Dr. Hanif's opinion that Scully was in renal failure. While she could not come to a definitive diagnosis because she considered that more testing was needed, the possibility of Cushing's disease was highest on her list of differential diagnoses and needed to be ruled out.
[35] Dr. Catherine Millman, another veterinarian at KAH, assumed care for Scully from Dr. Hopper. A low dose dexamethasone suppression test and blood work performed returned results consistent with Cushing's disease.
[36] Dr. Millman stated that, although she did consider that Scully might have possible renal insufficiency, she never believed that Scully was in actual renal failure or kidney malfunction even close to failure. Scully was treated presumptively as a Cushing's disease case.
[37] Dr. Millman started Scully on medications to address this concern and in an attempt to manage it. Scully started to gain weight, appeared to feel better and was able to hold his urine longer. The excessive drinking and excessive urination were reduced.
[38] Scully lived for another approximately 16 months.
[39] The Discipline Committee found Dr. Hanif guilty of professional misconduct with respect to Scully by misinterpreting the test results, misdiagnosing the problem and failing to offer further or other appropriate investigations for Scully.
[40] All other charges relating to Dr. Hanif's treatment of Scully and his dealings with Schmidt were dismissed.
Issues
[41] Although a great many points were raised by Dr. Hanif in his Notice of Appeal, only the following distilled issues were put forward in the Appellant's Amended Factum and in oral submissions made on his behalf at the hearing of this appeal:
(a) Was Dr. Hanif denied procedural fairness and/or natural justice?
(b) Did the conduct of the prosecution on behalf of the College raise a reasonable apprehension of bias?
(c) Did the composition of the Discipline Committee panel give rise to a reasonable apprehension of bias?
(d) Did the Discipline Committee panel improperly rely on expert evidence in making its findings?
(e) Were the findings of the Discipline Committee panel reasonable?
Issue A: Was Dr. Hanif denied procedural fairness and/or natural justice?
[42] Dr. Hanif complains about the process employed by the College to prosecute him and by the Discipline Committee panel to adjudicate the allegations of professional misconduct made against him. He argues that he was denied procedural fairness and natural justice.
[43] Among his several complaints are the following:
(a) The College took the position at the hearing that the finding of guilt from the 2010 hearings was binding and that only the acquittals were not binding, despite its position on appeal that the reasons of the 2010 panel were deficient and despite the fact that the Divisional Court sent the matter back for a second hearing before a new panel;
(b) The College failed to disclose important x-ray evidence relevant to the Schmidt diagnosis that it had in its possession throughout the 2010 hearings and which it was not disclosed until midway through the new hearing;
(c) The Discipline Committee panel refused to allow questions during the hearing that could demonstrate a reasonable apprehension of bias;
(d) In determining costs, the Discipline Committee panel ignored the direction of those panels which heard his pre-hearing motions to take into consideration the hardship suffered by him in having to go through a second hearing.
[44] I would not give effect to any of these submissions.
[45] With respect to the finding of guilt made at the first hearing as to the improper prescription of flea medication for Cleo, the College did not appeal that finding and Dr. Hanif did not cross-appeal.
[46] The Divisional Court expressly noted that this finding of guilt was not under appeal by either party. The Court therefore was not asked to consider whether the finding was reasonable.
[47] In fact, the College and Dr. Hanif made a joint submission to the original panel with respect to an appropriate penalty for this finding while the College's appeal of the other findings was outstanding. That joint submission was accepted by the original panel and Dr. Hanif has fulfilled the penalty.
[48] With respect to the x-rays, Dr. Hanif was not prejudiced by their late disclosure.
[49] As soon as the College prosecutor discovered that the College had the KAH x-rays, copies were produced to Dr. Hanif. Disclosure of the e-rays was made on February 16, 2012, shortly before the hearing started.
[50] Upon receiving the x-rays, Dr. Hanif did not seek an adjournment. Instead, Dr. Hanif obtained his own radiology report. Cross-examination of College witnesses on the x-rays confirmed that the x-rays were clinically insignificant insofar as the issues before the Discipline panel were concerned.
[51] There is no evidence to suggest that the x-rays could have assisted Dr. Hanif to refute the allegation that Scully was suffering from Cushing's disease. The veterinarian who treated Scully was emphatic that the x-rays had nothing to do either with Scully's kidney function or Cushing's disease. Accordingly, any alleged late disclosure of the x-rays did not prejudice the fairness of the hearing.
[52] Dr. Hanif also submits that the panel refused to allow questions throughout the hearing that touched on or could demonstrate a reasonable apprehension of bias and that he was denied procedural fairness as a result. However, the record reveals that Dr. Hanif was permitted to ask many questions about possible bias during the hearing.
[53] Dr. Hanif brought motions to recuse the panel, the College prosecutor and the panel's independent legal counsel. Dr. Hanif filed affidavit evidence on the issue. Dr. Hanif's counsel cross-examined College staff members who indicated they did not observe any inappropriate conduct on the part of the panel members.
[54] I consider that the record shows that all arguments of reasonable apprehension of bias advanced by Dr. Hanif were fully aired.
[55] After considering the evidence and submissions of the parties in respect of one of the motions, the panel ruled unanimously that it was not biased against Dr. Hanif. The decision of the panel on this issue is fully supported by the record and the relevant authorities that establish the test for demonstrating reasonable apprehension of bias: what an informed person, viewing the matter realistically and having thought the matter through, would conclude (see: Committee for Justice and Liberty v. National Energy Board, 1976 2 (SCC), [1978] 1 S.C.R. 369). There is no basis upon which to interfere with that determination.
[56] Finally, with respect to the process observed in determining costs, the College took into account the views of the pre-hearing motion panel and significantly limited its request for costs for that reason. The College sought costs based only on protraction of the hearing as a result of the conduct of the defence.
[57] The College's proposed costs were further reduced to account for the cost of the ethics course that Dr. Hanif was to be required to attend, with consideration for the expenses he had incurred in having to undergo a hearing twice for the same matter.
[58] In its reasons for decision on penalty and costs, the Discipline Committee panel specially considered the impact of the original hearing and re-hearing on Dr. Hanif. In its decision on penalty, the panel stated:
We agree that the fact that Dr. Hanif was required to undergo a re-hearing was a factor of mitigation. Notably, despite Dr. Hanif's claims of substantial financial outlay for this disciplinary proceeding, he provided no supportive documentation. Regardless, given that this entire matter has extended over seven years, we believe that Dr. Hanif would have incurred substantial legal costs for his defense, his practice would have been adversely impacted due to his absences, and he and his family would have experienced significant emotional stress.
[59] Contrary to what is submitted by Dr. Hanif on this issue, the Discipline Committee panel in its reasons for decision exhibited a keen awareness of the views of the pre-hearing motion panel and the impact of the proceedings on him.
[60] As a result, I see no basis for a conclusion that the hearing was not fair or that Dr. Hanif was denied natural justice in any respect.
Issue B: Did the conduct of the prosecution on behalf of the College raise a reasonable apprehension of bias?
[61] Dr. Hanif complains that counsel prosecuting the case on behalf of the College conducted himself in such a way that a reasonable apprehension of bias was raised.
[62] Dr. Hanif's principal complaint arises out of the conduct of the prosecutor in the course of the evidence of one of the expert witness called on behalf of the College.
[63] One of the veterinarians called to provide an expert opinion on the issues raised in the Schmidt matter testified that she had contacted two colleagues to discuss the case and stated that those colleagues supported her opinion that Dr. Hanif's conduct breached professional standards.
[64] Dr. Hanif took the position that reference to these unnamed colleagues and the statements that they supported the expert witness' conclusion was improper. Dr. Hanif asked to have the names of those colleagues revealed so that he could speak to them.
[65] Counsel for the College stated that, if the request were granted, he would offer advice to those two witnesses that they did not have to speak to Dr. Hanif or his counsel if they did not wish to do so.
[66] The request for disclosure of the names was granted. When counsel for Dr. Hanif contacted one of these witnesses, the witness advised that he had been contacted by the prosecutor and had been advised that he did not have to communicate with the defence if he did not wish to do so.
[67] Dr. Hanif takes the position that this conduct was an attempt to discourage witnesses from speaking with Dr. Hanif's counsel and raised a reasonable apprehension that he was not receiving a fair and unbiased hearing.
[68] As it happens, the panel ultimately ruled that the evidence of the two veterinarians concerned was inadmissible.
[69] Dr. Hanif also complains that the prosecutor went beyond the bounds of a proper opening statement with respect to the anticipated evidence of the expert witnesses and as to what the panel's findings should be on the evidence generally.
[70] Dr. Hanif argues that it was inappropriate for the College prosecutor to say that experts for the College would testify that, if Schilbe's evidence as to what transpired were to be accepted, without any doubt it would establish professional misconduct. This was, in fact, an accurate summary of part of the experts' anticipated evidence.
[71] The bar for finding that a prosecutor's conduct has been prompted by an improper motive is very high (see: R. v. Cawthorne, 2016 SCC 32). While a prosecutor's prime duty is to present evidence and promote a fair hearing, it is appropriate for a prosecutor to seek a conviction within the appropriate limits of fairness in the context of an adversarial process (see: R. v. Cook, [1997] 1 S.C.R. 113).
[72] In my view, there is no basis on this record to justify a finding that the College prosecutor's language or conduct was unfair, or that he was biased in his handling of the hearing.
[73] Any strong and direct language employed by counsel for the College, both during the opening statement and throughout the hearing, was within the range of the acceptable and did not result in making the hearing unfair.
[74] Although I accept that it would have been wiser for the prosecutor not to offer proactive advice to potential witnesses, the limited advice he gave was correct and was not unfair to Dr. Hanif.
[75] I therefore would not give effect to this ground of appeal.
Issue C: Did the composition of the Discipline Committee panel give rise to a reasonable apprehension of bias?
[76] Dr. Hanif argues that the fact that one member of the panel of the Discipline Committee, Dr. Elizabeth Saul held the office of President of the College rendered the panel biased in the matter before it.
[77] In particular, because the College would benefit from the levying upon him of a costs order, Dr. Hanif submits that the participation on the panel by that member, in relation to the decision raised a reasonable apprehension of bias.
[78] Dr. Saul had raised this very issue with the parties of her own initiative at the outset of the penalty hearing and submissions. Neither party objected to her continuing to serve on the panel. Dr. Hanif's counsel agreed with the advice of independent legal counsel that there was no impediment to Dr. Saul's continuing to participate on the panel.
[79] In order to justify the removal of an adjudicator, the apprehension of bias must be a reasonable one, considering the context surrounding the impugned behaviour, including the length and difficulty of the proceedings. There is a strong presumption of judicial impartiality and integrity (see: Ontario Provincial Police v. MacDonald, 2009 ONCA 805; Beard Winter LLP v. Shekdar, 2016 ONCA 493).
[80] Further, a regulator's power to order costs does not create a reasonable apprehension of bias (see: Pearlman v. Manitoba Law Society Judicial Committee, [1992] 2 S.C.R. 869).
[81] In my opinion, the participation of Dr. Saul on the panel after she had become President of the College did not taint the decision or render the panel biased.
[82] I therefore would not give effect to this ground of appeal.
Issue D: Did the Discipline Committee panel improperly rely on expert evidence in making its findings?
[83] Among the expert witnesses called by the College was Dr. Mark Spiegle, a veterinarian. Dr. Spiegle was qualified and gave opinion evidence with respect to veterinary medicine generally and small animal practice in particular.
[84] In his evidence, Dr. Spiegle gave opinion evidence as to whether certain conduct, if proved, constituted a breach of the relevant standard of practice of the veterinary profession.
[85] Dr. Hanif submits that Dr. Spiegle's expertise does not include the interpretation or application of the standards of practice. Thus, Dr. Hanif argues that expert evidence on this point was inappropriate and inadmissible, on the basis that it was outside the qualifications of Dr. Spiegle and went so far as to interpret the standards of practice and to provide an opinion as to whether the conduct of Dr. Hanif breached those standards.
[86] Dr. Hanif submits that whether the conduct complained of meets the standards of practice in Ontario is the very issue that the Discipline Committee panel was to determine and is not a matter on which an expert should or can express an opinion. He argues that this evidence was not necessary, in that it did not provide information which was outside the experience and knowledge of the panel.
[87] Dr. Hanif's suggestion that it is somehow inappropriate for a properly qualified expert to interpret and comment on standards of practice and indicate whether, in his or her opinion, a standard was breached is contrary to established authority on the issue (see: Novick v. Ontario College of Teachers, 2016 ONSC 508; Katsoulakos v. Association of Professional Engineers of Ontario, 2014 ONSC 5440).
[88] Expert evidence is generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto. The Discipline Committee panel in most cases would be in error in finding a failure to maintain a standard of the profession in the absence of expert opinion as to that standard. In addition, just because an expert offers an opinion on whether the standard was breached does not require the Discipline Committee panel to accept it. It will make its own determination on that central issue.
[89] Among the several reasons for this requirement is the fact that there may be lay persons on the panel who do not have the requisite intimate knowledge or understanding of the professional practice issues. In many cases even the professional members on a panel may lack deep understanding of the particular area of specialization involved and the standards that prevail within it.
[90] Further, it is vital that the person who is the subject of a charge of having failed to maintain the standard of practice be afforded an opportunity to hear and challenge such expert opinion in an open form, rather than be made subject to discipline and sanction as a result of a closed-door discussion influenced only by members of the profession who sit on the discipline panel.
[91] In the end, I agree that it is the function of the panel to decide whether the expert's opinion will be assigned weight and whether the impugned conduct qualifies as professional misconduct. In my view, however, there is no support in this record for a conclusion that the Discipline Committee panel's function in this regard was improperly usurped by the expert.
[92] I therefore would not give effect to this ground of appeal.
Issue E: Were the findings of the Discipline Committee panel reasonable?
[93] Dr. Hanif submits that the allegation that he misdiagnosed Scully with renal failure and that his death was imminent was not specifically alleged in the Notice of Hearing.
[94] This allegation is central to Schmidt's letters of complaint of October 13, 2006 and February 2, 2007. It was clearly alleged in the Notice of Hearing that Dr. Hanif had misinterpreted Scully's test results, an allegation that embraces the misdiagnosis issue. Both Schmidt and Dr. Hanif gave extensive evidence on the point. Dr. Hanif was at no time unaware of the case against him or in any way taken by surprise.
[95] It was open to the panel to prefer Schmidt's version of events to the evidence of Dr. Hanif.
[96] Dr. Hanif's evidence that he recorded in his records that Schmidt had declined further testing is contrary to the written consent to additional tests she provided at the visit to his office, and to her oral evidence on the subject. The only mention generated by Dr. Hanif that Schmidt declined further tests is contained in the typed "transcription" of his records, a document that was prepared after the events. The reference appears nowhere in his original handwritten notes.
[97] The Discipline Committee panel concluded that Schmidt was not offered and did not refuse additional tests. The panel noted that Schmidt took Scully to another clinic, KAH, a few days after her appointment with Dr. Hanif and consented to the performance of further tests there without hesitation.
[98] The decision reveals that the panel conducted a careful review of the evidence and addressed the inconsistencies between Schmidt's evidence and that of Dr. Hanif. Although Schmidt's recollection of the specific dates on which the events occurred was slightly different from what was recorded in Dr. Hanif's records, this difference was immaterial to the issue of the alleged misdiagnosis. The basic facts were clear. In addition, Dr. Hanif's lengthy records confirm that he had a phone call with Schmidt on September 19, 2006.
[99] Although Dr. Hanif submitted that he had never stated that Scully's death was imminent, the panel accepted that Schmidt would not have taken Scully to KAH for possible euthanasia if she had not understood from Dr. Hanif that his death was imminent.
[100] The ultimate issue for the panel's determination was whether it was appropriate for Dr. Hanif to advise Schmidt that Scully was in renal failure, that his death was imminent, and whether this amounted to a misinterpretation of the lab results and a misdiagnosis. The panel considered all of the evidence in arriving at its decision. In my view, the panel's conclusions that Dr. Hanif had misinterpreted Scully's lab results and had misdiagnosed him as being in renal failure were fully supported by the evidence and were reasonable.
[101] With respect to the Discipline Committee panel's assessment of the evidence in the Shilbe/Cleo matter, and the reasonableness of its conclusions based upon it, I must take a different view.
[102] Schilbe testified that Dr. Hanif hit Cleo on the face with his open hand three or four times. When Cleo growled, she said he then hit her five or six more times on her face. Schilbe swore that Dr. Hanif then hit Cleo hard three more times with a tongue depressor with a hard, slapping motion.
[103] Only Schilbe and Dr. Hanif were in the room when these events allegedly took place.
[104] Other than Schilbe's testimony, there was no independent evidence to support her allegations.
[105] Dr. Hanif denied having struck Cleo. He admitted handling Cleo by the scruff but testified that he only took appropriate and standard measures to control what appeared to him to be a fractious kitten in order to examine her properly.
[106] Lisa Rock, receptionist for Dr. Hanif at the time, testified that she had never known Dr. Hanif to hit an animal or handle an animal in any rough way during the period over which she worked for him. She noticed nothing unusual on the day of the examination.
[107] Dr. Jonathan Landsberg, an animal behaviourist, testified that Cleo's behaviour was contrary to how a kitten would have behaved had it been hit as Schilbe suggested.
[108] Dr. Gary Bloom, an expert in the treatment of cats and dogs, testified that Cleo's observed and noted physical appearance and behaviour was contrary to what likely would have been the case had she been hit in the manner suggested by Schilbe.
[109] Of greatest significance is the evidence of Schilbe that she attended that same day at another veterinary clinic with Cleo and saw Dr. Bill Cox. She swore she told Dr. Cox that Dr. Hanif had hit Cleo in the manner she had described to the Discipline Committee panel. According to Schilbe, Dr. Cox responded by telling her that such conduct was unacceptable and that he took it upon himself to give her information in order to contact the College to file a complaint against Dr. Hanif.
[110] Dr. Cox testified at the hearing. He denied that Schilbe had mentioned to him any mistreatment of Cleo by Dr. Hanif. He said he was told only that Dr. Hanif had experienced difficulty in the examination of Cleo and that is why blood tests were not done.
[111] Dr. Cox said he saw no evidence when he examined Cleo that would support Schilbe's story that Cleo was struck as she had described.
[112] Dr. Cox was firm that if Schilbe mentioned anything like hitting Cleo or refusing to test blood from her, he would have recorded it in his notes. His notes do not record any such information.
[113] Further, while he could not provide a word-for-word account of the Cleo consultation, he remembered that his receptionist told him that Schilbe had requested information from her about the College in order to complain. This is directly contradictory to Schilbe's evidence which suggested that Dr. Cox personally encouraged her to complain.
[114] The Discipline Committee panel in its reasons found Dr. Cox to be a credible witness. However it minimized and dismissed his evidence on the basis that it would be unlikely that he would be able to accurately recall all details discussed at the visit. Despite Dr. Cox's evidence to the contrary, the Discipline Committee panel determined that it would not have been unusual for Dr. Cox not to have recorded the information reported by Schilbe.
[115] The Discipline Committee panel suggested that it was not important whether Schilbe asked Dr. Cox for the contact information for the College or whether she had asked someone in his office to give it to her. This reveals a misunderstanding of the significance of the evidence which is an important component of the alleged scenario and squarely engages whether Schilbe ever described Dr. Hanif's treatment of Cleo to Dr. Cox in the same way as she did in her evidence at the hearing.
[116] Further, by testifying that there was such a conversation, Schilbe inferentially suggested the existence of independent corroboration from Dr. Cox that Dr. Hanif's conduct was wrong.
[117] I note as well that the Discipline Committee panel found that Dr. Hanif did not hit Cleo exactly in the manner actually described by Schilbe. Rather, it found that Dr. Hanif hit Cleo hard enough for a reasonable observer to perceive the cat was being hit, but not hard enough to leave a mark. This is wholly inconsistent with Schilbe's claim that Dr. Hanif struck Cleo with 8-10 hard slaps with an open hand and subjected Cleo to what she described as "physical abuse", "beating", "smacking", "pulling" and 'grabbing" to the point that Schilbe said she was openly crying about the abuse she was witnessing. The Discipline Committee panel simply decided that Schilbe must have been confused on this point.
[118] The Discipline Committee panel also held that Schilbe was made more credible because she had filed a complaint containing these same allegations. It found Schilbe's credibility to have been bolstered by the consistency of her evidence with the contents of her original letter of complaint. In my view, it was an error to treat what is essentially a prior consistent statement by Schilbe in her complaint letter as corroboration of her evidence at the hearing.
[119] It is fully acknowledged that findings based on the assessment of the credibility of witnesses are entitled to be shown great deference on appeal (see: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981).
[120] However, given the serious errors made in assessing the credibility of the witnesses in the Schilbe matter and their cumulative effect, the decision of the Discipline Committee panel finding Dr. Hanif guilty based upon this evidence is unreasonable and is thereby rendered unsafe. While the errors in assessing credibility relate directly to the finding of professional misconduct alleged in paragraph 3 of the Notice of Hearing, they also apply to those alleged in paragraphs 11 and 12. The evidentiary issues surrounding Dr. Hanif's physical treatment of Cleo and the information provided to Dr. Cox extend to the Discipline Committee panel's findings related to information allegedly given by Dr. Hanif to Schilbe.
[121] As a result, that part of the appeal must succeed. The findings of guilt arising out of Dr. Hanif's treatment of Cleo are set aside.
Remedy
[122] The appeal is allowed insofar as the findings of guilt against Dr. Hanif in the Schilbe matter are concerned. In these unusual circumstances, and in view of the fact that Dr. Hanif already has been the subject of two hearings, I consider it appropriate that a finding of not guilty be substituted rather than ordering a third hearing.
[123] All other issues raised on appeal are dismissed.
[124] The issues of penalty and costs of the hearing are remitted to the Discipline Committee panel for re-consideration in light of this result which represents the elimination of what I would consider to be the more serious finding of professional misconduct.
Costs
[125] Dr. Hanif achieved partial success on this appeal and is entitled to an award of costs which we fix at $25,000.00, inclusive of disbursements and applicable taxes.
Stewart J.
I agree Nordheimer J.
I agree Labrosse J.
Released: May 12, 2017