Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057

CITATION: Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057

DIVISIONAL COURT FILE NO.: 017/64

DATE: 20201223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer and Favreau JJ

BETWEEN:

Dr. Ravi Walia

Moving Party

– and –

College of Veterinarians of Ontario

Respondent

self-represented, with assistance from his daughter Nikita Walia

Bernard C. LeBlanc and Maya Pearlston, for the Respondent

HEARD at Toronto by videoconference: December 2, 2020

Favreau J.

Introduction

[1] In a decision dated July 12, 2017, the Discipline Committee of the College of Veterinarians of Ontario found the moving party, Dr. Ravi Walia, guilty of professional misconduct in relation to eye surgery he performed on a dog. The Divisional Court dismissed Dr. Walia’s appeal, and the Court of Appeal for Ontario and the Supreme Court of Canada dismissed Dr. Walia’s motions for leave to appeal.

[2] Dr. Walia now brings three motions before this panel of the Divisional Court seeking the following relief:

a. An order requiring the Complaints Committee of the College to give him a copy of the reasons for decision referring the complaint against him to the Discipline Committee;

b. An order admitting fresh evidence for the purpose of challenging the Complaints Committee’s referral of the complaint to the Discipline Committee; and

c. An order staying the penalties imposed by the Discipline Committee.

[3] There is no merit to the motions brought by Dr. Walia. There is no existing proceeding in this Court within which Dr. Walia can obtain the orders he seeks. In any event, these motions are an abuse of process as they are an improper attack on the Divisional Court’s previous decision dismissing Dr. Walia’s appeal from the Discipline Committee’s merits and penalty decisions.

Procedural history

Prior disciplinary proceedings and appeals

[4] Dr. Walia was the subject of a complaint made to the College arising from surgery he performed on the eye of the dog in 2014.

[5] The Complaints Committee of the College investigated the complaint, including providing the substance of the complaint and expert opinions to Dr. Walia for comment. On April 19, 2016, the Complaints Committee notified Dr. Walia that it was referring allegations of professional misconduct to the Discipline Committee. On May 20, 2016, the Complaints Committee sent Dr. Walia the Notice of Hearing referring 19 allegations of professional misconduct against him to the Discipline Committee.

[6] The Discipline Committee held a seven day hearing. Dr. Walia represented himself at the hearing, with the assistance of his daughter, Nikita Walia.

[7] In a decision released on July 12, 2017, the Discipline Committee, found Dr. Walia guilty of several counts of professional misconduct. The reasons for decision address many procedural and preliminary issues raised by Dr. Walia at the hearing. The preliminary issues raised by Dr. Walia and dismissed by the Committee include a complaint by Dr. Walia that the Complaints Committee had failed to give him reasons for its referral of the complaint to the Discipline Committee and that the original complaint raised three issues whereas the Notice of Hearings set out nineteen allegations against Dr. Walia.

[8] In a subsequent decision, the Discipline Committee addressed the penalties to be imposed on Dr. Walia. The panel ordered that Dr. Walia’s licence to practice veterinary medicine was to be suspended for three months, that he was to successfully complete various forms of remediation and that he was to pay $142,000 in costs to be paid over a period of time.

[9] Dr. Walia appealed the Discipline Committee’s merits and penalty decisions to the Divisional Court. In a decision dated October 16, 2020, the Divisional Court dismissed the appeal. The findings made by the Divisional Court include the following:

a. There was no basis for Dr. Walia’s argument that, if he had been given an opportunity to respond to the nineteen allegations referred to the Discipline Committee, the complaint would never have been referred. In any event, Dr. Walia knew the case he had to meet at the Discipline Committee hearing and he was given an opportunity to respond; and

b. There was nothing improper in the College counsel’s role in assisting with the drafting of the allegations set out in the Complaints Committee’s referral of the matter to the Discipline Committee and then appearing as counsel for the College at the discipline hearing.

[10] On January 28, 2019, the Court of Appeal dismissed Dr. Walia’s motion for leave to appeal. On June 27, 2019, the Supreme Court of Canada dismissed Dr. Walia’s application for leave to appeal to that court.

[11] The College began enforcing the Discipline Committee’s penalties on July 27, 2019. Dr. Walia has served the three month suspension and he has paid a portion of the costs order.

Procedural history of the three motions

[12] On September 19, 2019, Dr. Walia brought a motion pursuant to Rule 59.06 of the Rules of Civil Procedure before a single judge of the Superior Court to set aside the Divisional Court’s order dismissing the appeal. Miller J. directed that the motion should be brought before a three judge panel of the Divisional Court given that Dr. Walia was seeking to set aside an order made by the Divisional Court.

[13] Rather than proceeding with the motion, Dr. Walia chose to proceed with these three motions which he claims he needs to bring in order to set aside the findings of professional misconduct and penalties against him. While the motions were originally framed as a precursor to a Rule 59.06 motion, at the hearing of the motions before this panel Dr. Walia claimed that he needs the relief sought on these motions for the purpose of pursuing an application for judicial review of the Complaints Committee’s referral of the complaint to the Discipline Committee.

[14] These motions were originally scheduled to proceed separately, with the motion for a stay scheduled to go first. In that context, the College brought a cross-motion to quash the other motions brought by Dr. Walia.

[15] The matter ultimately came to the Divisional Court for case management after the beginning of the COVID-19 pandemic. In a case management endorsement, the Court consolidated the three motions and transferred the matter to be heard by a Toronto panel of the Divisional Court.

Independent review of the College proceedings

[16] As part of the record on the motions, Dr. Walia included a decision of a Committee appointed by the College of Veterinarians of Ontario to consider complaints made by Dr. Walia about a number of matters, including the manner in which the Complaints Committee referred the complaint in this case to the Discipline Committee. Many of the issues raised before the Committee are the same as the issues previously raised before the Discipline Committee and the Divisional Court, and again on these motions.

[17] In a comprehensive decision, the Committee found that there was no merit to the allegations of misconduct against the College. In particular, the Committee dismissed Dr. Walia’s claim that the Complaints Committee referred nineteen allegations against him without giving him an opportunity to address those allegations and his claim that the Complaints Committee did not give him reasons for the referral to the Discipline Committee. The Committee found that these issues had already been decided and that, in any event, the concerns raised by Dr. Walia were unfounded.

Preliminary issue raised by Dr. Walia

[18] At the beginning of the hearing before this panel, Dr. Walia asked that the panel make an order disallowing College counsel, Bernard LeBlanc, from representing the College on the motions. Dr. Walia argued that Mr. LeBlanc has a conflict and that there is a reasonable apprehension of bias given his previous role in the investigation and disciplinary proceedings.

[19] Dr. Walia did not make a formal motion for Mr. LeBlanc’s recusal. Rather, in advance of the hearing, he wrote to the Court advising that, in his view, Mr. LeBlanc should not be allowed to appear on behalf of the College. Despite the lack of a formal motion, we gave Dr. Walia an opportunity to address this issue.

[20] After hearing submissions, the panel advised Dr. Walia that we would not disqualify Mr. LeBlanc, and that we would provide our reasons for this decision as part of the decision on the merits of the motions. Set out below are brief reasons on this issue.

[21] As indicated above, Dr. Walia already raised the issue of Mr. LeBlanc’s role as counsel on his appeal to the Divisional Court. The Court dismissed this ground of appeal. This issue has therefore already been decided.

[22] In any event, the case Dr. Walia now relies on to make this argument is of no assistance to him. In Casavant v. Professional Ethics Committee of the Saskatchewan Teachers’ Federation, 2005 SKCA 52, at paras. 61-62, the Saskatchewan Court of Appeal did not find that it was improper for a lawyer who prosecuted a case before the discipline committee of a professional body to then appear on an appeal or subsequent related proceedings on behalf of the professional body. Rather, in that case, the Court found that it was improper for the discipline committee itself to appear in court to defend its own decision and to be represented by the counsel who prosecuted the case in doing so. This is not the case here. Mr. LeBlanc prosecuted the case on behalf of the College and now appears in this Court as counsel to the College. He does not purport to act for the Discipline Committee.

[23] Mr. LeBlanc’s role as counsel to the College is both proper and common in disciplinary proceedings. As counsel who prosecuted the allegations in this case, there is nothing improper in Mr. LeBlanc responding to these motions.

There is no merit to the motions brought by Dr. Walia

[24] Dr. Walia brings the following three motions:

a. A motion to obtain the Complaints Committee’s reasons for referring the complaint to the Discipline Committee;

b. A motion to adduce fresh evidence about the Complaints Committee’s decision making process; and

c. A motion to stay the penalties imposed by the Discipline Committee.

[25] At the core of the three motions is an allegation by Dr. Walia that the Complaints Committee’s referral of the complaint to the Discipline Committee was fraudulent, biased and procedurally unfair. Dr. Walia contends that the disciplinary proceedings should never have been allowed to proceed, thereby suggesting that the decisions of the Disciplinary Committee are invalid.

[26] Dr. Walia’s attempt to attack the outcome of the Discipline Committee proceedings is misguided. Before considering the three motions individually, I will first address the common grounds on which I find these motions have no merit, namely:

a. The Divisional Court has no jurisdiction over these motions because there is no current proceeding within which they can be brought;

b. The issues Dr. Walia seeks to raise through these motions have already been decided or could have been decided by the Discipline Committee and the Divisional Court; and

c. Even if there are issues that Dr. Walia could not have raised before the Discipline Committee or on the appeal to the Divisional Court, the time for raising them has long passed.

The Court has no jurisdiction to consider these motions

[27] Dr. Walia has brought these motions under the Divisional Court file number assigned to the appeal dismissed by this Court in 2018.

[28] There is no existing case within which these motions can be brought. The Divisional Court has already dismissed the appeal. There is no standalone basis on which this Court would have the authority to order the College to produce decisions by the Complaints Committee. There is no proceeding within which the Court can make an order allowing fresh evidence. There is also no proceeding to be stayed.

The issues raised by the motions are res judicata

[29] As held by the Court of Appeal for Ontario in Bear Island Foundation v. Ontario, at para. 29, res judicata is a “form of estoppel. It means that any action or issue that has been litigated and decided cannot be retried in a subsequent lawsuit between the same parties…” At para. 30, the Court stated that res judicata “prevents a party from relitigating a claim that was decided or that could have been raised in an earlier proceeding”.

[30] In this case, Dr. Walia claims that the process followed by the Complaints Committee in referring the complaint to the Discipline Committee was unfair and fraudulent because three issues turned into nineteen allegations. He claims that he needs the Complaints Committee’s decision and fresh evidence to pursue these allegations on an application for judicial review.

[31] However, the issues of whether Dr. Walia is entitled to a decision from the Complaints Committee and whether there was anything improper in the referral of the nineteen allegations have already been decided. Dr. Walia raised both issues before the Discipline Committee and they were decided against him. He raised both issues again before the Divisional Court. The Court explicitly addressed the issue of the nineteen allegations and dismissed the appeal as a whole. The Court of Appeal and Supreme Court of Canada denied leave from that decision.

[32] As reviewed below, there is no fresh evidence raising new issues or concerns about the Complaints Committee’s decision making process. All the documents Dr. Walia seeks to rely on were available to him for the hearing before the Disciplinary Committee and the appeal to the Divisional Court.

[33] The issues Dr. Walia seeks to raise have already been decided and they are therefore res judicata. It is an abuse of process for Dr. Walia to try to raise them again in a fresh processing.

Dr. Walia is out of time for raising issues related to the Complaints Committee’s referral

[34] Dr. Walia argues that the issues he seeks to litigate are not res judicata because he does not seek to challenge the Discipline Committee’s decision but, rather, the Complaints Committee’s referral of the complaint to the Discipline Committee.

[35] This argument does not assist his position.

[36] By this point, it is too late to bring an application to judicially review the Complaints Committee’s referral of the complaint to the Discipline Committee. The timelines for doing so have long passed. The Divisional Court has consistently held that judicial review "is an extraordinary equitable and discretionary remedy which can be denied in the face of excessive delay": see, for example, The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014 (Div. Ct.), at para. 14. The Court has also held that a delay of more than six months in commencing an application for judicial review is excessive: De Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006 (Div. Ct.), at para. 14. In addition, in accordance with section 5 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, since July 2020, applications for judicial review must be brought within 30 days of the decision being challenged unless the Court is satisfied there is merit to the application and no prejudice in granting an extension. In this case, the referral occurred in May 2016, which is over four years ago.

[37] In any event, the referral of the complaint from the Complaints Committee to the Discipline Committee is one step in the discipline process. Once the matter was referred to the Discipline Committee, Dr. Walia had a full opportunity to defend against the allegations made against him. Any defects in the referral were cured by the hearing. If the allegations against Dr. Walia were unfounded, he had an opportunity to defend against them.

[38] Therefore, even if Dr. Walia had sought to bring an application for judicial review at the time the complaint was referred to the Discipline Committee, such an application would likely have been dismissed as premature. The Divisional Court and other courts have repeatedly held that, absent exceptional circumstances, administrative proceedings should run their full course before an application for judicial review or an appeal is commenced: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (Div. Ct.), at para. 9. In this case, the administrative proceedings were completed with the issuance of the Discipline Committee’s penalty decision. Dr. Walia exercised his rights of appeal, as he was entitled to do.

There is no basis for this Court to order the Complaints Committee to disclose its decision

[39] For all of the reasons above, there is no basis for ordering the Complaints Committee to disclose its reasons for referring the matter to the Discipline Committee. In any event, the College’s position is that it has no obligation to provide reasons.

[40] I agree with this position.

[41] Section 24(2) of the Veterinarians Act, R.S.O. 1990, c. V.3, sets out the Complaints Committee’s powers in disposing of a complaint:

(a) direct that the matter be referred, in whole or in part, to the Discipline Committee or, for the purposes of section 33, be brought to the attention of the Registrar;

(b) direct that the matter not be referred to the Discipline Committee or brought to the attention of the Registrar under clause (a); or

(c) take such action as it considers appropriate in the circumstances and that is not inconsistent with this Act or the regulations or by-laws.

[42] Section 24(3) goes on to state that the Complaints Committee must give its decision in writing under 24(2)(b) and (c), but there is no such requirement when the complaint is referred to the Discipline Committee.

[43] In this case, as indicated above, the Notice of Hearing set out the allegations of professional misconduct against Dr. Walia. He knew what allegations he had to respond to for the hearing and had a full opportunity to defend against those allegations.

There is no basis for allowing fresh evidence

[44] Again, for the reasons above, there is no basis for making an order allowing fresh evidence. In any event, such an order would not be appropriate as it does not meet the test for the admission of fresh evidence.

[45] The four part test for the admission of fresh evidence includes a requirement that the party seeking to introduce the fresh evidence demonstrate that, even with due diligence, the evidence would not have been available at the original hearing: Palmer v. The Queen, [1980] 1 SCR 759, at p. 775.

[46] All of the evidence Dr. Walia seeks to adduce was available to him at the time of the hearing before the Discipline Committee and the appeal before the Divisional Court:

a. An email between Dr. Walia and the College dated May 10, 2016;

b. Expert reports dated July 12, 2015 and December 15, 2015, that were disclosed to Dr. Walia on which he commented before the referral to the Discipline Committee;

c. Complaints Committee minutes dated April 18, 2016, that were marked as an exhibit at the Discipline Committee hearing;

d. The Notice of Hearing that was sent to Dr. Walia in May 2016 and that was also marked as an exhibit at the Disciplinary Committee hearing; and

e. The original complaint against Dr. Walia dated August 15, 2014, that was provided to Dr. Walia as part of the disclosure for the Disciplinary Committee hearing.

[47] Dr. Walia says that the evidence is fresh evidence because he seeks to use it to challenge the Complaints Committee referral and not the Discipline Committee decision. He argues that it is therefore fresh evidence in the context of his proposed application for judicial review. As explained above, there is no basis for such an application for judicial review. In any event, a motion for fresh evidence in advance of an application for judicial review is not part of the usual process. The procedure for bringing an application for judicial review is set out in the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, and Rule 68 of the Rules of Civil Procedure.

There is no basis for a stay

[48] Dr. Walia did not pursue the issue of a stay on the motions before us, presumably because the stay motion was originally scheduled to proceed before the two other motions. In any event, there is no basis for granting a stay in this context. As indicated above, there is no existing proceeding within which to grant a stay. In addition, Dr. Walia would not meet the three part test for a stay:

a. The proposed application for judicial review does not have any chance of success, and therefore does not meet the low bar to show the proposed proceeding has merit.

b. Dr. Walia has put forward no evidence that he will suffer irreparable harm if the stay is not granted. Notably, he has already served the three month suspension and, while his daughter made statements about financial hardship caused by the costs order, there is no evidence on the point.

c. The balance of convenience favours the College. The College is charged with enforcing the Veterinarians Act. In this case, this includes collection of outstanding costs. College enforcement of disciplinary proceedings should not be interrupted by unmeritorious applications for judicial review.

Conclusion

[49] In conclusion, the three motions brought by Dr. Walia are dismissed.

[50] The College is entitled to the costs it seeks in the amount of $8,727.09. This amount is to be paid within 30 days of the issuance of the decision.

[51] Before concluding, I take the opportunity to make one last comment. During the hearing, Dr. Walia’s daughter asked where her father could go to get justice in this case. The answer may be difficult for Dr. Walia and his family to accept, but there are no further avenues for redress through the courts. Rather than pursuing fruitless and expensive legal challenges, Dr. Walia and his family would be well advised to accept the outcome and finality of the Discipline Committee’s findings and penalty. While it is not the result they are looking for, it is the only available outcome at this point and accepting it may bring them peace of mind and allow them to move forward.

Favreau J.

I agree _______________________________

R.J. Smith J.

I agree _______________________________

Lederer J.

Released: December 23, 2020

CITATION: Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057

DIVISIONAL COURT FILE NO.: 017/64

DATE: 20201223

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

R. Smith, Lederer and Favreau JJ

BETWEEN:

Dr. Ravi Walia

Moving Party

– and –

College of Veterinarians of Ontario

Respondent

REASONS FOR JUDGMENT

FAVREAU J.

Released: December 23, 2020