Kennedy v. College of Veterinarians, 2018 ONSC 3603

CITATION: Kennedy v. College of Veterinarians, 2018 ONSC 3603

DIVISIONAL COURT FILE NO.: DC17-867

DATE: 2018-06-08

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

B E T W E E N:

DR. BLAINE KENNEDY, Appellant

• and -

COLLEGE OF VETERINARIANS OF ONTARIO, Respondent

BEFORE: Thorburn, Varpio, and Myers JJ.

Counsel: Gerry Smits, Lawyer for the appellant Bernard C. LeBlanc and Anastasia-Maria Hountalas, Lawyers for the College of Veterinarians

HEARD at Hamilton: June 5, 2018

ENDORSEMENT

MYERS J.:

Background

[1] Dr. Blaine Kennedy appeals from the decision of the Discipline Committee of the College of Veterinarians which found Dr. Blaine had engaged in unprofessional conduct by failing to pay an outstanding costs award and by practising veterinary medicine while his license was suspended. As a result, the Discipline Committee revoked his license to practise veterinary medicine and ordered him to pay costs of $160,000.

Jurisdiction and Standard of Review

[2] The appeal is brought under s. 35 of the Veterinarians Act, RSO 1990, c V.3.

[3] The parties agree that the decision of the Discipline Committee is entitled to deference. The standard of review is reasonableness except when the Discipline Committee makes findings of general law outside of the purview of its home statute.

[4] In Agyapong v. Jevco Insurance Company et al., 2018 ONSC 878, Justice Wilton-Siegel described a reasonableness standard of review as follows:

In determining whether a decision is reasonable, the court is concerned largely with the justification, transparency and intelligibility of the Board’s reasons, as well as whether the decision falls within a range of possible, acceptable outcomes, given the facts and law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 47.

[5] In addition, the proceedings before the Discipline Committee will be reviewed to ensure that they were conducted fairly.

Grounds of Appeal

[6] In his factum, Dr. Kennedy raises the following grounds of appeal:

(a) Portions of the transcript of the hearing conducted before the Discipline Committee cannot be transcribed as they have gone missing. It is alleged that the Appellant faces significant prejudice in his ability to appeal the findings of the Panel, as the missing portion of transcript comprises all the evidence of the proceedings on three separate days and included part of Dr. Kennedy’s examination-in-chief and all of his cross-examination and redirect evidence. It also included all of the evidence of Candice Morel, Dr. Kennedy’s spouse.

(b) The principles of natural justice were breached by the College in not providing full disclosure. The College denied the existence of a Memorandum of Understanding between it and the Ontario Racing Commission (“ORC”) which provided for sharing of information on investigations conducted by both the College and the ORC. This led to significant disclosure issues.

(c) A lead investigator for the ORC and the College was retired police officer, Eleh Kupraty. The College declined to call the witness, although the Appellant endeavoured to subpoena the witness by leaving a Subpoena with the Ontario Racing Commission.

(d) The College called an expert, Dr. Bruce Duncan, to give evidence regarding the practice of equine medicine. Dr. Duncan had been an employee of the ORC and at times, the College and it is submitted that he was thereby biased and should not have been accepted as an independent expert witness.

(e) The College did not disclose many of the fruits of the joint investigation conducted by the ORC and the OPP relating to Stefan Laroque, Dan Girard and others, who were induced to testify against Dr. Kennedy as a result of the ORC charges.

(f) The College erred in rejecting significant evidence relating to his poor state of finances, including a sworn Financial Statement and including the evidence of his common-law spouse, Candice Morel.

(g) Disclosure Motions were brought before the Panel on more than one occasion which were all ultimately rejected.

(h) The evidence of Dr. Kennedy’s common-law spouse, Candice Morel, as to income and the nature of her business was ignored by the Panel.

Outcome

[7] We see no merit in any of the grounds asserted. The Discipline Committee produced a thorough, well-reasoned decision that transparently and intelligibly sets out its findings. We do not see any basis to interfere in this case.

Lost Transcripts

[8] While one-and-one-half days of transcript evidence was lost due to the theft of the reporter’s computer, the comprehensive notes of two panel members and independent counsel for the tribunal have been produced. They are comprehensive and are an adequate replacement. (Hills v Nova Scotia (Provincial Dental Board), 2009 NSCA 13 at para 20.)

[9] The appellant was not able to identify any prejudice or grounds of appeal that he was unable to pursue due to the use of the notes in lieu of transcripts although counsel for Mr. Kennedy on this appeal was the same counsel as was in attendance before the tribunal. The notes and the affidavits submitted by the College and Dr. Kennedy on this point meet the tests for admissibility on this appeal set out in R. v. Palmer and Palmer (1979), 1979 8 (SCC).

Disclosure

[10] The appellant submits that he did not receive disclosure that was in the possession of the ORC that could have been possibly relevant to his case. At the hearing before the Discipline Committee, the appellant brought an expansive motion seeking an adjournment in order to, inter alia, acquire disclosure from ORC in a related civil proceeding. The Board declined the requested adjournment on the following basis:

The panel feels that there is evidence that Dr. Kennedy is seeking to manipulate the system by orchestrating delay. Dr. Kennedy states that he is unable to properly defend himself without access to his computers (which are party [sic] of the property being held by the ORC). However, there is evidence in the form of emails between the CVO and ORC (Ontario Racing Commission) indicating that Dr. Kennedy has had the opportunity to take possession of his computers, but has refused. Dr. Kennedy also states that he cannot proceed with the Discipline Hearing prior to completion of the civil case he has brought against the ORC and certain of its employees as there may be information acquired during that case that will assist in his defense of his Discipline Case. However, there is no timeline for the completion of the civil case and no guarantee that it will provide any helpful information. In particular, Dr. Kennedy was unable to indicate, with any specificity, what information he required which would be likely to be obtained in the civil court proceedings.

… the panel does not feel that the applicant would be prejudiced if the request [for an adjournment] were not granted and the Member has failed to provide any specific evidence in that regard or to articulate clearly what prejudice he would suffer if required to proceed…

[11] It was admitted by the appellant at first instance that the College produced all documents in its possession that were relevant to the hearing. The appellant pointed to portions of a transcript where he cross-examined police officers who indicated that they could not be certain as to whether or not the College was in possession of all of the materials in the possession of the ORC. The appellant could not describe any material in the possession of the ORC that he thought would be relevant.

[12] During the argument of the appeal, counsel for the College indicated that he did not believe that the appellant actually brought a motion for disclosure of documents in the possession of the ORC. Counsel for the appellant did not deny the submission that the appellant did not move for disclosure of documents below. The record appears to contain no such motion material.

[13] The appellant now brings an appeal indicating that the Memorandum of Understanding (“MOU”) as between the College and the ORC ought to have been disclosed earlier because it would have helped him to bring disclosure motions. The appellant also submits that he needed lists of witnesses interviewed by the ORC, which he states were never given to him.

[14] The law of first party disclosure is well-settled. First-party disclosure is typically provided to an accused presumptively (R. v. Stinchcombe, 1995 46 (SCC), [1995] 4 S.C.R. 201). However, disclosure that is beyond the control of the prosecuting agency typically requires that the accused bring an application for same: R. v. O'Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411; R. v. McNeil, 2009 SCC 3. In such cases, the moving party must satisfy the justice or tribunal at first instance that the evidence has possible relevance.

[15] The appellant brought no application for such disclosure. Absent such a motion, no appeal can be heard, especially in a situation where the hearing panel finds that the appellant has attempted to use the court process as a means of inappropriate delay.

Failure to call a Witness

[16] There was no requirement in law for the College to call a retired OPP investigator, Mr. Oleh Kupraty, as a witness at the hearing, or to help Dr. Kennedy’s lawyer serve a summons to witness on him. Calling witnesses is within the power of the party seeking to call the witness.

[17] Moreover, Dr. Kennedy knew the case he had to meet and had ample opportunity to do so.

The College presented as witnesses its lead investigator and many others who were engaged in its investigation of Dr. Kennedy.

Expert Witness Testimony

[18] Dr. Kennedy complains that an expert witness whose testimony was adduced by the College was not an independent witness as he had previously worked for the ORC.

[19] After cross-examining the proposed expert on his qualifications, the appellant’s counsel consented to the request that he be qualified as an expert witness. Under s. 133 (1)(a) of the Courts of Justice Act, RSO 1990, c C.43, no appeal lies from a consent order without leave.

[20] In any event, a prior relationship among a party and a proposed expert witness is not a disqualifying bias per se. Whether a witness is sufficiently independent to meet the qualification standards applicable to expert witnesses set out in the case law was a question for the Discipline Committee. The witness testified as to his threshold independence. (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 49.)

[21] Even if not disqualifying, bias may go to the weight accorded to an expert witnesses’ testimony. The Discipline Committee properly discussed the issues and, absent an error of law or principle, its determinations concerning admissibility and weight are entitled to deference.

Credibility Findings

[22] The Discipline Committee made credibility findings concerning the evidence of Dr. Kennedy and Ms. Morel that are entitled to deference. It was entitled to accept or reject some, all, or none of the portions of the testimony of witnesses as the Discipline Committee deemed fit. There was ample basis in the evidence for the Discipline Committee’s credibility findings in general and its rejection as unhelpful of Dr. Kennedy’s and Ms. Morel’s evidence concerning Dr. Kennedy’s finances in particular.

Penalty

[23] We agree with Discipline Committee’s determination that the protection of the public requires that Dr. Kennedy’s license be revoked. The Discipline Committee set out the correct legal issues, weighed appropriate precedents, and applied the law to the facts as found in an intelligible, transparent, comprehensive, and reasonable manner.

[24] Finally, we see no error in principle in the Discipline Committee’s determination on costs. While the costs ordered are considerable, there were thirteen hearing days after a lengthy pre-hearing process. As costs are a discretionary remedy, the Supreme Court of Canada has recognized that an appellate court should only set aside a costs award if the trial judge made an error in principle or if the award is plainly wrong. (Hamilton v. Open Window Bakery Ltd., 2004 SCC 9 at para. 27.)

[25] The appeal is therefore dismissed.

[26] The College seeks costs of approximately $106,000 on a substantial indemnity basis. It points to the appellants’ failure to make appropriate efforts to find substitute evidence to make up for the lost transcript as a basis for extra costs that the College was required to incur. The College also argues that the appellant failed to file with the court five volumes of evidence that he listed as necessary in his certificate respecting evidence once again requiring the College to bear unnecessary expense.

[27] The fixing of costs is a discretionary decision under section 131 of the Courts of Justice Act. That discretion is generally to be exercised in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. These include the principle of indemnity for the successful party (57.01(1)(0.a)), the expectations of the unsuccessful party (57.01(1)(0.b)), the amount claimed and recovered (57.01(1)(a)), and the complexity of the issues (57.01(1)(c)).

[28] Overall, the court is required to consider what is “fair and reasonable” in fixing costs, and is to do so with a view to balancing compensation of the successful party with the goal of fostering access to justice: Boucher v Public Accountants Council (Ontario), 2004 14579 (ON CA), (2004), 71 O.R. (3d) 291, at paras 26, 37.

[29] To be entitled to costs on a substantial indemnity basis generally, the College must establish that the appellant’s conduct of the appeal was reprehensible, scandalous, or outrageous. Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43. We see insufficient basis to categorize the conduct of the appeal as meeting that standard.

[30] However, Rule 61.05 (8) provides:

The court may impose costs sanctions where evidence is transcribed or exhibits are reproduced unnecessarily.

[31] The listing of every single transcript and exhibit certificate respecting evidence and then leaving the document reproduction to the College qualifies as requiring unnecessary reproduction. There was no need for nine volumes of documents and transcripts for this appeal when less than a dozen transcript references and less than five documents were part of the argument.

[32] In all, in our view, the College ought to be entitled to its costs on a partial indemnity basis with allowance for the added documents that it was required to compile and file. We note that time for simple document handling is properly charged at clerical employee rates rather than at full lawyer rates.

[33] Dr. Kennedy shall therefore pay to the College costs on a partial indemnity basis fixed at $20,000 all-inclusive.

Myers J.

Thorburn J.

Varpio J.

Date of Release: June 8, 2018