Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578

CITATION: Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578

DIVISIONAL COURT FILE NO.: 254/20 DATE: 20210126

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, McCarthy and Kristjanson JJ.

BETWEEN:

Dr. Blaine Kennedy Appellant

– and –

College of Veterinarians of Ontario Respondent

Self Represented

Bernard LeBlanc and Anastasia-Maria Hountalas for the Respondent

HEARD at Toronto (by videoconference): January 19, 2021

Kristjanson J.

Overview

1In 2017, the Discipline Committee of the College of Veterinarians found Dr. Blaine Kennedy had engaged in unprofessional conduct by failing to pay outstanding costs awards and by practising veterinary medicine while his licence was suspended. The Committee revoked his licence to practise. The Divisional Court dismissed his appeal in 2018, and the Court of Appeal denied leave to appeal in January 2019. In March 2020 Dr. Kennedy brought a series of motions to the College seeking to set aside the 2017 decision on the grounds of “fraud” and “fresh evidence,” analogizing to Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. He also sought immediate reinstatement of his licence. The Chair of the Discipline Committee declined to appoint a Discipline Committee panel to hear the motions because the Discipline Committee lacked jurisdiction to reconsider its earlier decision. Dr. Kennedy appeals that decision.

2There is no statutory appeal from the Chair’s decision under the Veterinarians Act, R.S.O. 1990, c. V.3. This should have been brought as an application for judicial review. Rather than requiring the parties to incur the cost and delay of an application for judicial review, on the evidence filed before the Chair, I would find that the Chair’s refusal to schedule a hearing of the motions was both reasonable and correct in the circumstances.

Factual Background

Prior Proceedings

3In 2009 the Discipline Committee of the College suspended Dr. Kennedy’s licence for two years for professional misconduct and ordered him to pay the College’s costs. The Divisional Court dismissed an appeal with costs to the College: Kennedy v. College of Veterinarians of Ontario, 2010 ONSC 3622. The Court of Appeal denied leave to appeal, again with costs to the College. Dr. Kennedy paid none of the costs awards against him.

4In September 2014, the College began a new hearing against Dr. Kennedy alleging that he had breached the 2009 order by continuing to practise veterinary medicine during the time his licence was suspended, and unprofessional conduct for not paying the costs awards in a timely manner. In 2017, the Discipline Committee found Dr. Kennedy had engaged in professional misconduct and revoked his licence. The Divisional Court dismissed his appeal in 2018: Kennedy v. College of Veterinarians, 2018 ONSC 3603. The Court of Appeal denied leave to appeal in January 2019.

2020 Motions at the College

5In February and March 2020, Dr. Kennedy filed five notices of motion with the College. The notices were for motions to:

(a) Set aside the Discipline Committee’s July 2017 decision revoking his licence on the grounds of fraud and fresh evidence;

(b) Immediately reinstate his veterinary licence on the grounds of fresh evidence and Charter infringements;

(c) Disclose two reports and stay the penalty of the Disciplinary Committee until the reports were disclosed;

(d) Set aside the Discipline Committee’s decision and reinstate his licence on the grounds of fresh evidence and fraud; and

(e) Recuse counsel for the College, strike his submissions, and order the College to appoint a new prosecutor.

6The notices of motion were referred to the Chair of the Discipline Committee. Although the motions refer to fresh evidence and allege fraud, there was no supporting evidence of “fraud” other than bare allegations which fall far short of the requisite particularized requirement. The record included no actual fresh evidence. Indeed, even though Dr. Kennedy filed an affidavit on this appeal reciting “fresh evidence” and fraud as bases for all his motions, there was no fresh evidence filed with the affidavit, nor any evidence of fraud other than unparticularized bald allegations.

Decision of the Discipline Committee Chair

7In a decision dated March 30, 2020, the Chair held that the Discipline Committee had no jurisdiction to consider any of Dr. Kennedy’s motions, and declined to refer the motions to the Committee. The Chair held that Committee’s role ended with the proceedings against Dr. Kennedy. The Chair reviewed the Rules of Procedure of the Discipline Committee of the College of Veterinarians of Ontario in effect as of March 1, 2016, holding that Rules 35 and 36 provide the power to amend previous orders only in narrow circumstances, which did not apply to these motions, and within certain time limits, which had expired. She held that the motions were not for minor corrections or clarification, nor a reconsideration on consent of both parties as contemplated under the Discipline Committee's Rules.

8The Chair considered section 21.2 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA) which allows a tribunal (like the Discipline Committee) to review all or part of its own decision or order, "if it considers it advisable and if its rules made under section 25.1 deal with the matter.” She found that the Discipline Committee has Rules that deal with review and reconsideration and those Rules do not contemplate the type of review requested by Mr. Kennedy.

9The Chair also considered sections 23(1) and 25.0.1 of the SPPA which give tribunals power to control their own processes, including to prevent abuses of process. The Chair held at paras. 7-8 of her decision (with the footnotes placed in brackets):

7. Aside from establishing general Rules or procedures (already discussed above) the Discipline Committee's power to make orders and give directions under the SPPA to control or prevent abuse of its processes relates to ongoing proceedings, which do not exist here. In addition, the "abuse of process" or "fraud" alleged by Mr. Kennedy largely appears to relate to an alleged failure by the College to acquire and/or disclose certain evidence during the previous discipline proceedings. However, as acknowledged by Mr. Kennedy [see March 15, 2020 Notice of Motion, paragraphs 4-5] and as submitted by the College, many of these disclosure issues were raised during Mr. Kennedy's previous discipline proceeding and before the Divisional Court, which dismissed Mr. Kennedy's appeal on all grounds.

8. In the circumstances, there is no jurisdiction for the Discipline Committee to revisit the matter or reopen the hearing. To be clear, unless there is a court order directing the Discipline Committee to reconsider or rehear a matter [and subject to the provisions of the Discipline Committee's Rules of Procedure regarding correction, clarification or reconsideration, which do not apply here], the Discipline Committee does not have the power to reopen the case and hear further motions. In particular, the Discipline Committee does not have the power in this case to entertain Mr. Kennedy's motions for fresh evidence or to stay or reverse the effect of its decision. (emphasis added)

10The Chair held that there was no jurisdiction to consider the three motions for immediate reinstatement of the licence, since section 37(1) of the Veterinarians Act provides that an application for reinstatement may not be made for at least two years after revocation and that time had not expired. In addition, the Chair reasonably held that there was no basis for an order to recuse the prosecutor; there was no prosecutor as there was no ongoing proceeding.

Issues:

11This appeal raises two issues:

(a) Does this Court have jurisdiction to hear this appeal?

(b) Did the Chair err in her decision?

No Jurisdiction to Appeal: Remedy is Judicial Review

12Dr. Kennedy submits that the court has jurisdiction under s. 35(1)(a) of the Veterinarians Act, which provides that a party to a proceeding before the Discipline Committee under s. 30 may appeal to the Divisional Court from the order or decision of the Committee. Section 30 of the Act refers to decisions of the Discipline Committee relating to allegations of professional misconduct or serious neglect. Section 35(3) provides that an appeal from a section 30 decision may be on a question of fact or law or both. Dr. Kennedy had appealed the 2017 finding of professional misconduct and the licence revocation penalty to the Divisional Court under this section.

13In this case, however, there is no section 30 decision of the Discipline Committee to appeal. The Chair held that the Committee had no jurisdiction to hear the motions. For that reason, a panel was never convened under s. 28 and no Discipline Committee proceeding under s. 30 was ever held.

14As a result, there is no jurisdiction for this Court to hear an appeal of the decision. That said, the Chair’s refusal to refer the matter to Discipline Committee might have been the subject of an application for judicial review.

15Given that the issue of jurisdiction to reopen a completed disciplinary proceeding on the grounds of fraud and fresh evidence was fully argued before us on the appeal, rather than requiring the self-represented litigant to begin a judicial review proceeding, the panel has decided to comment on the jurisdictional issue to reconsider in the circumstances of this case.

No Error in the Chair’s Decision

16The Chair reasonably considered and disposed of the motions. A tribunal has the power to manage its own process. It was reasonable for the Chair to refuse to send motions to the Discipline Committee that were so clearly without merit. She reasonably held there was no jurisdiction to refer the three motions for immediate reinstatement as section 37(1) of the Veterinarians Act provides that an application for reinstatement may not be made for at least two years after revocation and that time had not expired. In addition, the Chair reasonably held that there was no basis for an order to recuse the prosecutor, since there was no ongoing proceeding and hence no prosecutor.

17The remaining issue is the “fraud” motion Dr. Kennedy brought under Rule 59.06 of the Rules of Civil Procedure, which does not apply to tribunals. Rule 59.06(2) provides that a party who seeks to have an order set aside on the grounds of fraud or facts arising after it was made may make a motion in the proceeding for the relief claimed. He argued that the Court of Appeal and the Divisional Court have recognized that fraud may render an original decision a nullity, and where the original decision is alleged to result from fraud on a particular court or tribunal, then a motion to reopen should be brought to that court or tribunal: See Berge v. College of Audiologists and Speech Language Pathologists of Ontario, 2019 ONSC 3351 (Div. Ct.) at para. 21; Mehedi v. 2057161 Ontario Inc., 2014 ONCA 604 at paras. 20-29; Janjua v. Khan, 2014 ONCA 5 at para. 11. Dr. Kennedy argues that the Chair erred with respect to jurisdiction in finding that “unless there is a court order directing the Discipline Committee to reconsider or rehear a matter …the Discipline Committee does not have the power to reopen the case and hear further motions.”

18Even if there is a common law exception for fraud applicable to tribunals which would otherwise be functus officio, a matter which we do not decide here, and even if the Chair did not consider a possible common law exception to reopen an order obtained by fraud, the Chair reasonably refused to schedule the motions given the lack of any evidence to establish fraud affecting the original Discipline Committee decision. There is simply no evidence to support the assertions that there is relevant fresh evidence, or that the evidence meets the test for admitting fresh evidence, or that the College engaged in “fraudulent” behaviour before or during the discipline proceedings. There is nothing in the evidence that would cast doubt on the panel’s findings that Dr. Kennedy practised while his licence was suspended or that he failed to pay costs. At its highest, Dr. Kennedy makes bald allegations of fraud in the 2017 professional misconduct proceeding, unsupported by any evidence. The issues raised were largely disclosure and third-party production issues already dealt with the by Divisional Court in the 2018 decision, or issues which Dr. Kennedy had a chance to raise in the Discipline Committee proceeding itself. In the circumstances, on the evidence before the Chair, the dismissal of the motions to adduce fresh evidence and reopen the hearing was inevitable.

19Dr. Kennedy also submits that the Chair was personally biased against him, because she was the President of the College during the second disciplinary proceeding and dismissed his complaints concerning alleged abuses of power by the College.

20The test for reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could decide the case fairly. There is a strong presumption of impartiality. The grounds for apprehension must be substantial. The inquiry is fact-specific, to be evaluated in the context of the circumstances, and in light of the whole proceeding. The burden is on the moving party to establish a reasonable apprehension of bias on a balance of probabilities; mere suspicion is not enough. See: Committee for Justice and Liberty et al. v. National Energy Board et. al., 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394;, Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 58-60, 76-77; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, at paras. 31, 36, 104-105, 109-114. The evidence and argument fall far short of this standard. There is simply nothing other than a bald allegation of personal bias based solely on the Chair’s correspondence with Dr. Kennedy when she was President.

Conclusion

21The appeal is dismissed, with costs payable by Dr. Kennedy to the College in the amount of $5,000.00 on a partial indemnity basis.

Kristjanson J.

I agree _______________________________

Swinton J.

I agree _______________________________

McCarthy J.

Date of Release: January 26, 2021

CITATION: Kennedy v. College of Veterinarians of Ontario, 2021 ONSC 578

DIVISIONAL COURT FILE NO.: 254/20